hand, a provision in such a contract, that if the company shall wilfully fail or refuse to supply the land-owner with the quantity of water agreed upon, the latter shall have the right, on payment or tender therefor, to take the water, is void, because incompatible with the right of control incident to the ownership of the ditch, and against public policy as tending to confusion and a breach of the peace.38 § 194. Duty of company to furnish water. In order to make the benefits of the irrigation system established by a corporation of this character available to the greatest number of users of water, the statutes commonly provide that the company shall be required to furnish water to all persons making proper application therefor and tendering the proper charges, so long as it has any water to dispose of. "Under the constitution and laws of this state," says the court in Colorado, "a ditch company carrying water for general purposes of irrigation cannot arbitrarily refuse to supply water to an actual and bona fide consumer, making seasonable application and offering proper compensation therefor. A refusal to supply water, by the carrier, to be justifiable, must rest upon something more substantial than the mere will of the carrier. The constitutional rule that 'priority of appropriation shall give the better right as between those using the water for the same purpose' must never be overlooked, though a variety of circumstances and conditions may have to be taken into consideration in determining the claim of an applicant for water in a given case."39 In the case of Golden Canal Co. v. Bright,40 the same court had under consideration the statute relating to such companies, with special reference to the relative rights of ditch-owners and the purchasers of water from them. And it was held "Farmers' High-Line Canal Co. v. White, (Colo.) 31 Pac. Rep. 345. 39 Combs v. Agricultural .ch Co., (Colo.) 28 Pac. Rep. 966. 8 Colo. 144, 6 Pac. Rep. 142. that, under the law, although the prior purchaser has not made his application within the time prescribed by rule, yet if he does so afterwards, and while the ditch-owner is free from conflicting obligations, and is able to grant his request, the statutory right is not forfeited. Also that the presumption is that the legislature intended to confer the privilege specified in the act, unlimited by any qualification as to the applicant's ability to procure water from any other source. And generally that the owner of an irrigation ditch, under the statute, is bound, provided he has water sufficient for the purpose, to admit a prior purchaser to its use and enjoyment, upon his payment or tender of the proper price therefor, provided the right there to has not been forfeited. In California, it is held that water appropriated for distribution and sale is ipso facto devoted to a public use, and a person who conforms to the requirements of the person so appropriating, and offers to pay the fixed rate for the water, is entitled to the aid of the courts to enforce his right to be supplied.41 § 195. Compelling company to deliver water. When a ditch company unlawfully refuses to furnish water to a bona fide consumer, who makes due application therefor, complies with its reasonable requirements, and tenders the proper charges, the company having water which it could furnish to him without impairing any rights of others, the authorities all agree that mandamus is a proper remedy to compel the company to fulfill its duty in this respect.42 And the right of the applicant to obtain this writ is not prejudiced by the fact that he has 41 McCrary v. Beaudry, 67 Cal. 120, 7 Pac. Rep. 264. 42 Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582, 17 Pac. Rep. 487; South Boulder Ditch Co. v. Marfell, 15 Colo. 302, 25 Pac. Rep. 504; Combs v. Agri- prospectively a remedy by an action for damages in case his crops fail as the result of lack of irrigation.43 But it is an imperative rule that before making an application for a writ of mandamus, an express demand or request must be made on the defendant to perform the act sought to be enforced by the writ, and the demand should be definite and specific.44 Further, this is not an appropriate remedy to compel a ditch company perpetually to furnish a person with water for the purpose of irrigation. "The right of the petitioner to water from the defendant's ditch for the irrigation of his land could, at most, be only an annually recurring right, dependent, among other things, upon an annual tender of the price."45 And if the complainant does not show a contract or prescriptive right to receive from the defendant company the number of inches of water which he claims, the most that he can lawfully claim is an adequate supply for the irrigation of his land. And it will be proper for the court to determine from the evidence what is such an adequate supply and to require the company, by its writ, to furnish that amount to the complainant and no more.46 § 196. Rights of stockholders. Where a stockholder in a ditch company has acquired a right to a certain amount of water, he may change the point of diversion of such water from one ranch to another, notwithstanding a long user on the former, unless the rights of others are injuriously affected, or unless his right to so divert it is restricted by some valid by-law of the company, or agreement; and a by-law impairing such a right would have no effect, unless authorized by the charter of the company, or assented to by the stockholder whose right is affected.47 But irrigation rights acquired by an owner of land, and represented by stock in a ditch company, do not become inseparably annexed to the land in connection with which they are acquired and used; and if the owner disposes of the stock in the company, he or those to whom he afterwards conveys the land have no further claim to such rights of irrigation.48 § 197. Duty to keep ditch in repair; liability for injuries. The statutes, as we have seen above, require irrigation and ditch companies to keep their canals and other works in good repair, so that the water may not escape therefrom or otherwise injure the property of others. In regard to the degree of care required, we find an instructive case in California, from the opinion in which we quote as follows: "The injury complained of occurred in a season of high water caused by the melting of the snow on the mountains above. The overflow so caused is periodical, and may be and is anticipated by all persons inhabiting the region where the alleged damage occurred. The obligation rested on defendant to keep the banks of its canal in repair. It was bound to use ordinary diligence for this purpose. The diligence required, however, must be commensurate with the duty, and the duty is that ordinarily employed by a prudent business man when dealing with his own affairs under the circumstances which surround him and call his mind and energy into action. If 47 Knowles V. Clear Creek Ditch Co., (Colo.) 32 Pac. Rep. 279. "Oppenlander v. Left Hand Ditch Co., (Colo.) 31 Pac. Rep. 854. the accumulation of sand in the defendant's ditch was such as to render it probable that the periodical overflow would by its action wash out the sand and thus damage the land. of plaintiff, it was then the duty of the defendant to use all the means which an ordinarily prudent business man would employ under the circumstances to prevent it. The sand might have been removed from the ditch and deposited where the water would not reach it during the period of overflow referred to above. Ordinary prudencewould have dictated such a course to prevent injury to the property of another. As before stated, the obligation rested upon defendant to exercise the diligence in the use and management of its ditch which a prudent man would ordinarily employ under the circumstances where his own interests were to be affected." 49 In a case in Colorado, it appeared that defendants perImitted the water to overflow the banks of their ditch, and flood the plaintiff's land, though they had been warned that the ditch was running too full, and that the water was in danger of escaping unless the flow was diminished. After this warning, the superintendent, at the request of one of the trustees of the company, raised the head-gates and increased the flow. It was held that defendants were liable under the statute, and that they could not avoid the consequence of their own negligence on the plea that gophers burrowed the banks, and that therefore the overflow was the result of unavoidable accident.50 In another case, where defendant permitted a break in his ditch to remain unrepaired for three weeks, whereby plaintiff's land was overflowed, it was held that such conduct was 49 Chidester V. Consolidated Ditch Co., 59 Cal. 197. And see, supra, §§ 78, 79. 50 Greeley Irr. Co. v. House. 14 Colo. 549, 24 Pac. Rep. 329. |