without the payment of a royalty as a condition precedent, thus preventing the land from being broken and cropped. The rule laid down in this case as the measure of damages was such rental value of the land as the owner would have received in crops, less any outlay for improvements or preparing the land for cultivation. The "act of God" as a defense must be specially pleaded; (217) and the plaintiff may be guilty of contributory negligence in not averting the damage if it is reasonably possible for him to do so, by obtaining water from some other source to irrigate and save his crops. (218) A contract releasing a ditch, canal or reservoir proprietor from damages by reason of unavoidable accidents and breaks of his works, will not release a liability for damages, the result of gross and continued negligence. (219) Where the defendant defaulted under the practice, prior to the adoption of the Code of Civil Procedure, the damages were ascertained and assessed by a jury. (220) § 158. Ejectment-Quieting Title-Partition. The right to the use of water being real estate, an action can be maintained to quiet the title thereto the same as is the case with other classes of real property. Such an adjudication proceeding, because of its results, is the most common method of adjusting the title of all appropriators in a single proceeding. (221) Being real estate, the water right (222) passes to the heirs of a decedent, and an action to quiet title cannot be maintained by an administrator; but he may sue for rents due the estate for the use of such water right. (223) A court of equity, having once (217) Chicago R. I. & P. Ry. Co. v. Shaw, 63 Neb. 380, 88 N. W. 508 ('01). (218) Mack v. Jackson, 9 Colo. 536, 13 P. 542 ('86); Shields v. Ore. Ex. D. Co., 23 Nev. 349, 47 P. 194 ('97). (219) (220) Catlin L. & C. Co. v. Best, 2 Colo. App. 481, 31 P. 391 ('92). (221) Frost v. Alturas W. Co. - Ida. -, 81 P. 996 ('05). (222) Ante, $129. (223) Travelers' Ins. Co. v. Childs, 25 Colo. 360, 54 P. 1020 ('98). For pleading in action to quiet title, see Miller et al. v. Lake Irr. Co., 27 Wash. 447, 67 P. 996 ('02); Brothers v. Brothers, 29 Colo. 69, 66 P. 901 ('01). WATER RIGHTS. § 158, Ejectment-Quieting Title-Partition. acquired jurisdiction in an action to restrain interference with a water right, may properly retain jurisdiction, and in the same proceeding and independent of statute may determine all the rights of the parties and enter a decree quieting plaintiff's title to the water in controversy, although plaintiff is not in actual possession of the water. (224) By statute in Colorado (225) it is provided that under certain conditions an information in the nature of quo warranto may be brought to procure the forfeiture of the corporate franchise of any corporation engaged in conveying water from the stream to the consumer. (226) A ditch, canal or reservoir, being a corporeal hereditament, (227) an action of ejectment will lie to recover the possession of the same. (228) An action to partition the waters of a stream will not lie, for the reason that the title to the water in the stream does not vest in the appropriator, but merely the right to divert and use water from the stream.(229) (224) 1050 ('04). Gutheil Park Inv. Co. v. Montclair, 32 Colo. 420, 76 P. (225) 1 Mills' Ann. Stat., §2307; post, §513. (226) Larimer Co. R. Co. v. People, 8 Colo. 614, 9 P. 794 ('85). (227) Ante, $129. (228) Integral Quicksilver M. Co. v. Altoona Quicksilver M. Co. [Cal], 75 Fed. 380 ('86). (229) Crippen Tr. v. White, 28 Colo. 298, 64 P. 184 ('01). PART VIII. EMINENT DOMAIN. CHAPTER 29. RIGHTS OF WAY FOR CANALS AND DITCHES. § 159. By Agreement-Prescription-Necessity-— Stat ute. The recognition of the right to divert the water of the streams and convey it to non-riparian lands, frequently a great distance from the source of supply, would have been of very little value had not the federal and state governments applied the "law of necessity" to another class of property and enabled the appropriator to secure the necessary right of way for his canal or ditch. Such a right of way could have been obtained perhaps, in most cases, by purchase from or contract with the landowner, but without the right to condemn there was no remedy for the appropriator who met with an obstinate proprietor who would neither give, take nor sell. A right of way could have been secured also by adverse user for the requisite prescriptive period. (1) But the occupation of the land with the ditch or canal must be adverse, continuous, uninterrupted and not by the acquiescence of the owner of the land. If its inception is permissive or under a license from the owner, it cannot avail to work an ouster. (2) These methods, however, would not protect the appropriator in all instances, as each was dependent upon the will of the landowner. Out of this situation grew, first, the custom acquiesced in by the federal government, and then enforced by constitutional and statutory pro (1) Coventon v. Seufert, 23 Ore. 548, 32 P. 508 ('93); Miller v. Douglas, 7 Ariz. 41, 60 P. 722 ('00). (2) Curtis v. La Grande W. Co., 20 Ore. 34, 23 P. 808 ('90); Yeager v. Woodruff, 17 Utah 361, 53 P. 1045 ('98); Bowman v. Bowman, 35 Ore. 279, 57 P. 546 ('99). § 159, By Agreement-Prescription-Necessity-Statute. visions, enabling the appropriator to condemn a right of way for his ditch, canal or reservoir upon the payment of a just compensation. (3) The statutory provisions of the several states have been passed upon by the courts and their constitutionality sustained, and the taking is held to be for a public purpose. (4) § 160. Federal Legislation Granting Right of Way. The first statutory recognition by the United States of the necessity for a right of way for ditches and canals was by the act of congress July 26th, 1866. (5) and the amendment of July 9th, 1870. (6) These acts recognized all those rights that had been acquired prior thereto, and provided for the acquirement of similar rights in the future. In 1871 the supreme court of Montana (7) said: "It was the intention of congress to give the owners of water rights the right of way over the public domain for the construction of ditches to make the water available for use." (8) (3) Const. and stats., post, Part X. (4) Shilling v. Rominger, 4 Colo. 100 ('78); Coffin v. LeftHand Ditch Co., 6 Colo. 443 ('82); Golden Canal Co. v. Bright, 8 Colo. 144, 6 P. 142 ('84); Tripp v. Overocker, 7 Colo. 72, 1 P. 695 ('83); Downing v. Moore, 12 Colo. 316, 20 P. 766 ('88); Gibson v. Cann, 28 Colo. 499, 66 P. 879 ('01); Oury v. Goodwin, 3 Aríz. 255, 26 P. 376 ('91); Lux v. Haggin, 69 Cal. 255, 10 P. 674 ('86); Lindsay Irr. Co. v Mehrtens, 97 Cal. 676, 32 P. 802 ('93); Ellinghouse v. Taylor, 19 Mont. 462, 48 P. 757 ('97); Umatilla Irr. Co. v. Barnhart, 22 Ore. 389, 30 P. 37 ('92); McPhee v. Kelsey, 44 Ore. 193, 74 P. 401 ('03); Prescott Irr. Co. v. Flathers, 20 Wash. 454, 55 P. 635 ('99); Paxton Irr. Canal Co. v. Farmers' Irr. Co., 45 Neb. 884, 64 N. W. 343 ('95); Alfalfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N. W. 1086 ('95); Albuquerque L. & I. Co., v. Guiterrez, 10 N. M. 177, 61 P. 351 ('00); McGhee Irr. Ditch Co. v. Hudson, 85 Tex. 587, 22 S. W. 398 (93); Toyaho Cr. Irr. Co. v. Hutchins, 21 Tex. Civ. App. 274, 52 S. W. 101 ('99); Borden v. Trespalacios R. & I. Co., Tex. Civ. App. —, 82 S. W. 461 ('04); same case, 98 Tex. 494, 86 S. W. 11 ('05); Nash v. Clark, 27 Utah 158, 75 P. 371 ('04); see, also, 1 Am. & Eng. Ann. Cases 300, note 304. (5) Rev. Stat., $2339, post, $168; ante, $12. (6) Rev. Stat., §2340, post, $169; ante, $12. (7) Noteware v. Stevens, 1 Mont. 311 ('71). (8) For cases discussing this act, see ante, $13. Tynon v. Despain, 22 Colo. 240, 43 P. 1039 ('96); Nippel v. Forker, 26 Colo. 74, 56 P. 577 ('99); Shoemaker v. Hatch, 13 Nev. 261 ('78); Bybee v. Oregon & C. R. Co., 11 Sup. Ct. 641, 139 U. S. 663 ('91); Ada Co. Farmers' Irr. Co. v. Farmers' C. Co., 5 Ida. 793, 51 P. 990 ('98); Childs v. Sharia, 8 Ida. 378, 69 P. 111 ('02); Miller v. Douglas, 7 Ariz. 41, 60 P. 722 ('00). By the act of 1866, (9) it is provided that whenever any person shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party doing such damage shall be liable to the party injured. An appropriator cannot, as against a subsequent settler, enter upon the land in his possession for the purpose of changing his point of diversion or the line of his ditch without the settler's consent. (10) While a person in possession of public land who has not filed, but has made improvements thereon, cannot claim any compensation for land taken or injured by the construction of a canal or ditch by another, still he may claim compensation for the damage done to his improvements. (11) By the act of March 3, 1891, (12) a right upon and way through public lands and reservations is granted for reservoir sites and rights of way for canals or ditches upon filing certain proofs of the organization of the ditch company and maps of the canal. No rights under this act can be claimed in respect to land to which private rights have attached. It only applies to unoccupied public land. (13) § 161. Right of Way for Ditches under State Statutes -Statute of Frauds. The several states and territories recognizing the necessities of the intending appropriator, by constitutional and statutory provisions, declared that he should have a right of way from the stream, across the intervening lands of others, to the place of intended use. Anticipating that it would not in all cases be possible to obtain this advantage or necessity by contract or deed, these constitutions or statutes conferred upon the appropriator the power to condemn. and provided the method by which it should be done. This right to conduct water over the lands (9) Rev. Stat., $2339, post, $168. (10) (11) McGuire v. Brown, 106 Cal. 660, 39 P. 1060 ('95). Knoth v. Barclay, 8 Colo. 300, 6 P. 924 ('85); Colo. Consol. L. & W. Co. v. Morris, 1 Colo. App. 401, 29 P. 302 ('92). 26 Stat., p. 1101, §§18-21, post, §174a-174d. Nippel v. Forker, 26 Colo. 74, 56 P. 577 ('99). (12) (13) |