Laserfiche WebLink
<br />001082 <br /> <br />11. Manda:mus--parties. In an aotion against water officials involving the <br />right of plaintiff' to divert water, if manda:mus is the proper renedy other <br />water users on the stream need not be made parties, their rights having <br />been established by judicial decree. In the case under consideration man- <br />damus is held to be the correct remedy, and the parties sufficient. <br /> <br />Error to the District Court of Delta County. <br />Hon. Straud M. Logan, Judge. <br /> <br />MR. HILTON R. ,IELCH, IIR. IIALCOLli LINDSEY, for plaintiff in error. <br /> <br />MESSRS. 1!OYNIH1\H, HUGI!;';" &; I:NOUS, Messrs. FAIRLAM3 &; FAIRLAMB, for defendants <br />in error. <br /> <br />Mr. C. M. ROLFSON, Mr. T. E. J11.mSOH, JIlr. HAlillY N. HAYl~S, Mr. C. D. TODD, Mr. <br />JAMES D. PARRIOTT, J,Ir. ROY C. HECOX:, Messrs. LEE, sun, '" McCREERY, Messrs. <br />FARRAR '" [iARTIN, amici curiae. <br /> <br />En Banc. <br /> <br />MR. JUSTICE BURKE delivered the opinion of the court. <br /> <br />. , THESE parties appear here in the same order as in the trial court. rfe <br />hereinafter refer to them as plaintiff and defendants. <br /> <br />. <br /> <br />Plaintiff has a decree for storage water for irrigation of date October 1,1886. <br />It takes its water .trom Surfaoe Creek on which its reservoir is built. When the <br />spring no ods have subsided the stream does not furnish sufficient water for dir- <br />eot irrigation for lands under ditohes taking therefrom. The priorities of some <br />of these antedate that of plaintiff, others are subsequent. The total oapaoity <br />of all exoeeds the oreek now, even in flood times, save when this is unusually <br />large. Defendants, water offioials oharged with the duty of administration, re- <br />fused plaintiff the right to store when the ditohes needed the water for direot <br />irrigation, irrespeotive ot: the dates of their priorities. Plaintiff, olaiming <br />the right to store as against ditohes with subsequent priorities, brought <br />manda:mus. Defendants demurred for want of parties (beoause water users under <br />said ditohes were not joined) and for want of faots. The demurrer was sustained <br />on both grounds. Plaintiff eleoted to stand and the action was dismissed at its <br />oosts. To review that judgment it proseoutes this writ. <br /> <br />~ <br /> <br />(1) Many pages of briefs filed herein, muoh oral argument, and oountless <br />authorities oi~ed, are devoted to the exposition and maintenanoe of the following <br />propositionsl Ylhere a statute is susoeptible of an interpretation whioh oonforms <br />to the Constitution and another whioh violates it the former will be adopted. <br />Chioago B. &; Q. Ry. Co. v. Sohool Dist., 63 Colo. 159, 165 Pao. 260. <br /> <br />(2) .There the language used is plain, its meaning olear, and no absurdity <br />is involved, Constitution, statute or oontraot, must be deolared and enforced <br />as written. There is nothing to interpret. People ex rel. Seeley v. Hay <br />9 Colo. 80, 10 Pao. 64l. <br /> <br />(3) Seotions 5 and 6 of artiole XVI, Colorado Constitution are self- <br />executing. Lyons v. Longmont, 54 Colo. 112, 129 Pao. 198. <br /> <br />. <br /> <br />-2- <br />