Opinion
No. 12,169.
Decided November 5, 1928. Rehearing denied January 7, 1929.
Action to quiet title to water right. Decree for plaintiff.
Affirmed. On Application for Supersedeas.
1. WATER RIGHTS — Title by Prescription. A judgment quieting title to a water right, based upon a finding of diversion and continuous application for 32 years, is unassailable.
Error to the District Court of Huerfano County, Hon. A. C. McChesney, Judge.
Mr. GEORGE H. BLICKHAHN, for plaintiffs in error.
Mr. ROMILLY FOOTE, for defendant in error.
WILLBURN had a decree quieting his title to a one-half interest in the water of the Nicolas Maes ditch. Certain defendants bring error and move for supersedeas. Both parties ask for a final decision on the merits. The plaintiff pleaded, inter alia, his right by prescription.
The decree which adjudicated the priority of the said ditch recited that it was owned by Nicolas Maes and Juan M. Ortivis. Juan B. Ortivis, however, son of Juan M., helped dig the ditch before 1880, and the water in question was continuously thereafter applied to his land and not to his father's (there was evidence that his father had no land) until 1912 when he sold the land and water right to Sabino Sanchez, through whom plaintiff claims. There was further evidence and the court found that there had been continuous adverse use, thereof by plaintiff and his grantors from 1880 to the commencement of the action.
Under this evidence and finding the judgment is unassailable. In Allen v. Swadley, 46 Colo. 544, 105 Pac. 1097, we held that adverse use of a water right for thirty years gave a full right to it by prescription.
The judgment is affirmed.