it, and to the bank, for the difference between the $2,000 and the pro rata portion thereof, which would have been enforceable against the city by the original holders of the claims paid by the bank, had they retained them. This amount can be ascertained, if not read-construction of a reservoir for the irrigation ily agreed upon by the parties.

Act Cong. July 26, 1866, c. 262, § 9, 14 Stat. 253 (U. S. Comp. St. 1913, § 4647), providing that when, by priority of possession, water rights have vested under local customs, [Ed. Note.-For other cases, see Frauds, Statlaws, and court decisions, they shall be pro- ute of, Cent. Dig. §§ 83-89, 136-138; Dec. Dig. tected, together with the amendment by Act§ 56.*]

7. WATERS AND WATER COURSES (§ 137*)-IN- | in error will be called plaintiff, as in the TERMITTENT USE-IRRIGATION RESERVOIR. trial court. That the use of an irrigation reservoir was intermittent did not defeat the owner's right to an easement in land over which the reservoir extended, where the owner of the reservoir, though he acquired his right by acquiescence, could have exercised the right of eminent domain.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 149; Dec. Dig. §ter of the plaintiff from about 200 acres of 137.*]

10. WATERS AND WATER COURSES (§ 243*)-IR-struction of the reservoir and ditch by which RIGATION EASEMENTS LICENSE TO USE RESERVOIRS.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

by replication; and by way of new matter, cept when the outlet of the reservoir or the it was alleged that all acts of defendant in dam in the stream washed out. In 1906 the flooding said lands were trespasses; that original lumber outlet to the reservoir was any use of the reservoir site by defendant replaced by a substantial cement outlet, and and his grantors was intermittent, in oc- there is some evidence that the reservoir was casional years or seasons only, with long filled that season. About the year 1907 the periods of years of abandonment between, in intake ditch was partially filled where a which no water was placed in the reservoir road crossed it, and so remained until the and no attempt made to place water there- obstruction was removed in the spring of in; that the use of the reservoir for stor-1909 after plaintiff purchased the land. The age purposes was impracticable, and the dam was sometimes out of repair, but work land to be served thereby not worth as much was done on it from time to time and from as defendant's land injured thereby. year to year for the purpose of making it Judgment was rendered, ousting the de-effectual. It is shown that Wadlin was the fendant from the possession, but granting owner of a large body of land subject to irto him 30 days in which to begin proceedings in eminent domain to condemn plaintiff's land for use as a reservoir site.

volved, including a portion of section 25, in the opinion designated as the "railroad tract,” and a part of the grant to the Denver Pacific Railroad. The court said:

land for reservoir site, or acquiesced therein; over several different tracts of land was inand further found that at no time after the title passed from the railroad company had any owner thereof consented or agreed to or acquiesced in the flooding of said section 29, and on such finding ruled that the original flooding of the land, and each flooding thereafter, was a trespass; that no right can be initiated by trespass-and instructed the jury to find a verdict for plaintiff.

[1, 2] It is contended by counsel for plaintiff in error that the precise question for determination has been settled by the Supreme Court of this state in Tynon v. Despain, 22 Colo. 240, 43 Pac. 1039. The effect of that decision, taken together with High Line Canal Co. v. Moon, infra, 22 Colo. 560, 45 Pac. 437, is that the act of Congress of July 26, 1866, § 9 (14 Stat. at Large, p. 253, c. 262), and its amendment (section 17, act approved July 9, 1870, 16 Stat. at Large, p. 218, c. 235), whether considered as a grant or as a legislative recognition of a pre-existing right, operates as a reservation from the general railroad grants, in favor of irrigation ditches and reservoirs used in connection with water rights which become vested under the local customs and laws prior to the issuance of patent. See, also, Adams v. Reed, 11 Utah, 480, 40 Pac. 720. Unless precluded by the grant to the railway company as constituted by the acts of Congress approved, respectively, July 1, 1862 (12 Stat. 489, c. 120), July 2, 1864 (13 Stat. 357, c. 216), July 3, 1866 (14 Stat. 79, c. 159), and March 3, 1869 (15 Stat. 324, c. 127), commonly known as the "Pacific Railroad Acts," it is clear that any rights which the owners of the Wadlin reservoir acquired for purposes of storing water on section 29, vested or accrued under the local customs and laws of the state of Colorado and the decisions of its courts, were and are superior to the title of the plaintiff. Those acts (of which the court takes judicial notice) are pleaded and relied upon by both plaintiff and defendant. Plaintiff contends that said grants by Congress to the Pacific Railway Companies were grants in præsenti as of a date not later than approval of the definite location of the line of the Denver Pacific Railway, to wit, August 20, 1869, which, by relation, becomes the date when the government patent to the land took effect. This contention is sustained in Howell v. Killie, 17 Colo. 88, 90, 28 Pac. 464, and United States v. U. P. Ry. Co., 148 U. S. 562, 570, 13 Sup. Ct. 724, 17 L. Ed. 560, 563. From these decisions and the rule they establish, the conclusion is drawn by plaintiff, and would seem to follow, that after August 20, 1869, this land was not subject to settlement as a part of the public domain, nor to reservations for easements, for any purpose which would interfere with possession or affect the fee title when vested by patent. However, that conclusion is in direct conflict with the decision in Tynon v. Despain, supra. In that case the claim to an easement for an irrigation ditch

"To the building of the ditch across all of these lands, except the railroad tract, the occuation of the benefits which they considered the pying claimants gave their consent in considerditch for agricultural purposes would be to their holdings. No express consent was given for building across the railroad tract, for it was at all as to the railroad tract.' then unoccupied, * * and no permission

The evidence in that case showed that the

ditch was built in the year 1874, five years after the congressional grant became effective by the filing and approval of the map of definite location. The lists of selections of certain tracts under the acts aforesaid, filed by the land agent of the railway company, were made in 1878 and 1879, and thereafter patent issued to the railway company and title passed to the defendants against whom the right of way was asserted. In respect to the railroad tract, the facts of that case are precisely parallel to those in the case at bar in every material matter up to the time that the title passed from the United States by its patent to the railway company, so that the rights acquired in the inception of the easements in the respective cases, up to the time of the issuance of patent, are governed by the same rule. The court, in an opinion delivered by Mr. Justice Campbell, said (22 Colo. 249, 43 Pac. 1042):

"It is clear, therefore, that the railway comthis easement. It is equally apparent that the pany took its lands subject to the burden of act of 1866 operated as a grant to the owners of this ditch of a right of way across the lands of an occupying claimant, under the United States land laws, when the inception of the latter's rights accrued under filings made after the passage of the act. (Italics ours.) This right of way for the ditch, it is true, must be com pensated for, if its construction injures the possession of those on the public domain; but so far as the right to burden the land with a ditch is concerned, by this act of Congress the absolute right was granted by the government to build a ditch across it. * said acts of Congress the grantees of the land, now owned by the defendant, took them subject, by operation of law, to the burden of the right of way for the ditch."

*

* Under the

The acts of Congress referred to in the opinion are the same acts that are relied upon in the case at bar. The rights of the railroad company did not take effect, even under the grant, until August, 1869, long after the passage of the act of 1866 to which the court refers.

In High Line Canal Co. v. Moon, 22 Colo. 560, 45 Pac. 437, the same rule is announced as in Tynon v. Despain, the difference in the facts being that the tract of land there involved was a parcel of "school land" which was given to the state by the national government. Across this parcel of land a ditch was begun in 1873, and thereafter completed and used continuously. There was some question as to whether the grant from the

United States to the state of Colorado took submerge it. This is a distinction without a effect in 1861 or in 1876. It was contended difference, except upon the question of notice that the grant made in 1876 was in præsenti to subsequent purchasers of the existence of under the act of 1861, and took effect upon the easement. In the case at bar it is clearthe formation of the state; but the court said:

"Whether the grant from the United States was one in præsenti, under the act of 1861, to take effect upon the formation of the state, or was made by virtue of section 7 of the enabling act of March 3, 1876 (1 Mills' Ann. Stats. p. 92), we need not determine; for in Broder v. Water Co., 101 U. S. 274 [25 L. Ed. 790], it was held, in a case somewhat similar to the one at bar, that the act of 1866 referred to 'was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one;' from which it would seem to follow that the petitioner's easement in controversy here was a pre-existing right, antedating the passage of the organic act of the territory, and so protected by the rule in the Tynon Case, supra."

ly shown-and, indeed, admitted-that the plaintiff took his deed with a clause subjecting the title conveyed to all existing ditch and reservoir rights, that while upon the land, before purchasing, he was advised that a part of the land was or had been occupied as an old reservoir site, and was told of the reservoir "filings." Prior grantors had taken like deeds, and it is in evidence that at least one of the grantors had known of the existence of this reservoir for from 15 to 18 years, and of the adjudication, decrees, and filings, and that the existence of the reservoir was generally known. The maps and sworn statements of ditch and reservoir provided by statutes in force in 1888 and subsequent thereto [3, 4] Inasmuch as we have concluded that were of record, and plaintiff and his grantors the ruling in the Tynon Case is directly in had been so advised. This record, we think, point and decisive of the issues herein made, operated as constructive notice to the plainirrespective of the question of any agreement, tiff of the matters therein shown. It is conconsent, acquiescence, or waiver alleged by tended by defendant that under the decision defendant and denied by plaintiff, and that in Blake v. Boye, 38 Colo. 55, 88 Pac. 470, this court should observe the rule stare de 8 L. R. A. (N. S.) 418, and cases there cited, cisis in regard to such issues, we shall not these records did not operate as constructive enter into any original reasoning to support notice; but it must be observed that such deor to overthrow the ruling in that case, but cision was based upon the prior ruling of the will, by further comparison, show that the Supreme Court in Lamar Co. v. Amity, 26 cases are parallel and cannot be distinguish- Colo. 370, 58 Pac. 600, 77 Am. St. Rep. 261, ed as to any matters upon which the judg- that the statute of 1881, under which the ment herein can be affirmed. We recognize sworn statements were filed, had been deno distinction between an easement for an clared unconstitutional. That statute was irrigating ditch and for an irrigating reser- held unconstitutional for the sole reason that voir. The contention is made by defendant the subject-matter was not clearly stated in that the ruling in the Tynon Case, though the title of the act. The statute of 1887, unpertinent, is not controlling, because the court der which the filings in this case were made, in that case held also that the owner of the has not been declared unconstitutional, but railroad tract, after the issuance of patent has been regarded as in force ever since its to the railroad company, acquiesced in and enactment. We think that the plaintiff in consented to the operation ond maintenance this case, having had both actual and conof the ditch over that tract, for which rea- structive notice of the existence of the reserson it is said that the question as to whether voir and of the claims of the owners thereof, the act of building the ditch prior to patent or notice of such matters as to put a purwas lawful or a trespass was immaterial, and chaser on inquiry, will be charged with that the ruling of the court upon that ques- knowledge of all such facts as he might have tion was mere dicta. We are unable to give acquired had he made due inquiry, which our consent to this contention. The further would include the filings and decree, and he finding of the court in that case, that, after cannot now aver that he bought in ignorance the issuance of patent, the owner of the land of such rights and claims. Grand Valley Irr. consented to its use by the ditch owner, was Co. v. Lesher, 28 Colo. 273, 289, 65 Pac. 44. an additional and cumulative reason why the He is in no better position than he would easement should be upheld; but it is mani- have been had the entire physical structure fest that that reason was unnecessary as a of the reservoir been situated upon section basis for judgment, after the court had first 29. Therefore, the distinction attempted to decided that the entry upon the land for the be made between the Tynon Case and this purpose of making the ditch and its use case fails.

thereafter prior to patent was lawful. De- [5] We have shown that the judgment of fendant further urges that the Tynon Case can be distinguished from the case at bar because in that case the physical structure of the ditch was upon the land in dispute, while in this case the physical structure of the reservoir, i. e., the dam, was not upon section

the trial court was based primarily upon the finding that the original taking of the land for reservoir site was a trespass, because the land belonged to the Union Pacific Railway Company at that time, and that such finding is opposed to the principle settled in the Ty