Crippen v. White

delivered the opinion of the court.

Counsel for plaintiff, who originally instituted this action and had charge of the proceedings below, states in his brief, filed on behalf of appellant, that this is “an action for the partition of the waters of a non-navigable natural stream, to-wit: the South Arkansas river” between the parties to this action. The only rights involved relate to those for the purposes of irrigation. The claim being that it is a suit in partition, the only question necessary to determine is, whether or not it states facts sufficient to constitute an action of that character, or upon which it can be maintained. It is contended by counsel for appellant that an action in partition is a special proceeding, and therefore a demurrer could not properly be interposed, but inasmuch as it was, it should be treated as an answer admitting the averments of the pleading to which it was directed. Eor this reason it is urged that the motion for judgment should have been sustained It is immaterial how the plea interposed on behalf of defendants shall be treated, for, regardless of what particular rules of pleading shall govern, in cases of t!$is character, the *302fact still remains that in an action for partition, if the peti, tion does not state a cause of action, it certainly cannot b« maintained. The theory of counsel for appellant appears to be that by virtue of the ownership of lands lying along this stream, the title to which was acquired prior to the adoption of the present state constitution and the declaration of the act of 1861, adopting the common law so far as applicable, that title to the waters of such stream has vested in the owners of these lands. The adoption of the common law by the territorial legislature of 1861 was limited to the extent that it was applicable to our conditions. The law of necessity rendered the common law doctrine of riparian rights wholly inapplicable in this jurisdiction, and as has frequently been stated, required its abrogation; so that, notwithstanding the declaration of the statute, it has never been recognized as controlling in the matter of water rights. It has always been the settled doctrine of this court that 'an appropriator of water from a natural stream acquires a right to divert a specific volume of water in that stream under well-known restrictions, and not title to a specific volume of water therein. Priority of appropriation for a beneficial purpose is the test by which this right is measured, as against others taking water from the same natural source. The petition as framed recognizes this. It is averred that certain parties owning lands upon the South Arkansas river have acquired rights in the waters thereof by virtue of actual appropriation to a beneficial use, some of which are inferior, and others superior, to the rights of plaintiff. It is also averred that others diverting waters from this stream claim rights which are dependent, not upon the date of appropriations, but on the fact that the lands upon which such water is utilized are located within another water shed. The act of 1861 does not purport to vest title to water in a stream, in the owner of lands thereon. Its object was to secure to such owners the right to divert water for the purposes of irriga*303tion; so that it is clear from the averments of the complaint itself, as well as the language of. the act of 1861 and the former adjudications of this court, that the rights under this act, so far as they relate to irrigation, are limited to a diversion from the stream for that purpose, and vest no title to any given quantity of water flowing therein. Coffin v. Left Hand Ditch Co., 6 Colo. 443; Thomas v. Guiraud, 6 Colo. 531; Hammond v. Rose, 11 Colo. 524.

Priorities in the stream, therefore, are only involved. According to the facts of this case, as detailed in the petition, the right which plaintiff has to divert a given volume of water from the river is not one in which the other parties to this proceeding have any interest whatever, and so with the priorities which the defendants may have acquired. Partition certainly cannot be had of property which is not owned jointly by two or more. It appears, then, there is nothing which is the subject of division in a partition suit. Plaintiff does not claim, or attempt to assert, any right except one, which might be the subject of partition; so, conceding that it may appear from the averments of the petition that he is entitled to certain priorities in the waters of the stream, he does not state a cause of action in partition, and his action was properly dismissed. The judgment of the district court is affirmed.

Affirmed.