Knowles v. Clear Creek, Platte River Mill & Ditch Co. , 18 Colo. 209 ( 1893 )

Mr. Justice Goddard

delivered the opinion of the court.

The evidence offered on the trial below is not preserved by bill of exceptions' and made a part of the record, and therefore is not before us, and we can look only to the record proper, consisting of the pleadings and judgment, to determine the correctness of the judgment of the court below. The question presented thereby is as to the right of the plaintiff in error to have the water, or any portion of it, to which he is entitled by virtue of his ownership of stock, applied to land other than the upper ranch. It is well settled in this state that “ One who has • acquired the right to divert the waters of a stream may change the point of diversion and place of use without losing his right of priority, where the rights of others are not injuriously affected.” Fuller et al. v. Swan River Placer Mining Co., 12 Colo. 12.

That the plaintiff in error would have the right to use the water in question on the lower ranch, notwithstanding its long user only upon the upper ranch, unless such right is restricted by some valid by-law or agreement, we entertain no doubt; and that so valuable a right cannot be impaired, or restricted by a by-law having that effect, unless the same was duly authorized by the charter of the company, or assented to by the stockholder whose right is affected thereby.

Whether it was shown on the trial below that the by-law in question was authorized by the charter or assented to by plaintiff in error or his grantor, or that such an agreement was entered into by plaintiff’s grantor, we have no means of knowing. But, such evidence being admissible under the pleadings and necessary to sustain the judgment of the court below, it is to be presumed that it was produced, and the judgment of the court below is accordingly affirmed.

Writ denied.