even if power therefor has been expressly conferred by the legislature, it is inoperative and void unless the thing is in fact a nuisance, or was created or erected after the passage of the ordinance, and in defiance of it; and, except in cases of emergency, or when the use is clearly a nuisance, the fact should be first established by judicial adjudication. Vide section 740, and the authorities cited.

In the case of Yates v. City of Milwaukee, 10 Wall. 497, the supreme court of the United States, per Mr. Justice MILLER, say:

"But the mere declaration by the city council of Milwaukee that a certain structure was an encroachment or obstruction, did not make it so, nor could such declaration make it a nuisance, unless it in fact had that character. It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the state, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city at the uncontrolled will of the temporary local authorities."

The same doctrine is laid down in the case of C., R. I. & P. R. R. v. Joliet, 79 Ill. 25-44; Everett v. Council Bluffs, 46 Iowa, 66; and numerous other authorities.

It is therefore quite clear that the plaintiffs below were entitled to the injunction prayed for in the first instance, restraining the city from interference with the use of property which had not been lawfully ascertained and declared to be a nuisance. Upon the record, however, presenting the testimony taken upon the hearing, we are to determine whether the court below was warranted in decreeing the injunction perpetual upon the facts established by said testimony. The fact that the construction of the ditch was begun in the fall of 1864, and completed in the spring or summer of 1865, by a company duly incorporated under and by virtue of the general incorporation laws of the territory of Colorado, is fairly established. The only question of error, based upon objection to evidence admitted, which is specifically presented for our consideration, relates to the certificate of incorporation of this ditch company. The admission of this certificate as evidence is objected to, and the validity of the corporation, and its rights and the rights of its lessees, the defendants in error, are denied, on the ground that the certificate omits to specify what stream the water of the ditch is to be taken from, the terminal points of the ditch, and other specifications which, by the statute, the certificate is directed to contain. That the corporate existence and validity of the acts of a de facto corporation, whose user is established, cannot be attacked collaterally upon the ground of an irregularity or omission of this nature in its certificate of incorporation, has been decided by this court in the case of Humphreys v. Mooney, 5 Colo. 282, for the reasons and upon the authorities therein cited.

The ditch, then, must be held to have been lawfully constructed. It is shown to be six or seven miles long; that it receives its water

out of the Platte river at a point on the stream four or five miles above the city; that cver since its completion, in 1865, the water flowing through it has been used to irrigate several thousand acres of farming lands beyond the city limits, and for grinding wheat in the mills of defendants in error, situated within the limits of the original town-site of Denver. That which is complained of on the part of the city to be a nuisance, does not arise out of either the nature of the ditch itself or the manner of its use by the defendants in error. The reasonableness of the use is not questioned, although the absolute necessity of such use as a motive power for the mills is denied by the plaintiff in error. Admitting, then, that the testimony shows that by reason of the increase in travel and traffic upon the streets crossing the ditch, consequent upon the growth of the city, the ditch is such an obstruction to the use of the streets as to be properly deemed a highway nuisance, we may also say that its character as a nuisance is not by such testimony established to exist in any other respect than as such obstruction to certain streets; and further, such character consists solely in the absence of bridges at the crossings, and is wholly contingent upon this circumstance.

The removal of the nuisance, therefore, without the destruction of the property in question or interference with its use, as heretofore enjoyed by defendants in error, can be effected by bridging the ditch properly at the street crossings.

This narrows the controversy down to the real question involved in this branch of the case, viz., which party is liable for the construction of these bridges, the defendants in error or the city? If the former, then the decree of the court below should be modified accordingly; if the latter, then the decree need not be disturbed. The question, therefore, to be determined is one dependent upon the relative rights of the parties to this action respectively.

As to all the streets intersected by the ditch outside of the original limits of the city known as the congressional grant, the testimony shows that the ditch was constructed seven or eight years before these streets were laid out. The plat of Hunt's addition, which we understand to be the oldest of the additions to the city on the line of this ditch, was filed in 1872. The ditch in question was marked on the map or plat of this addition as filed, and the right of way for said ditch had been previously acquired by the ditch company of the owners of the lands embraced in this addition. Under this state of facts, we think it clear that the owner of this addition dedicated the streets he had laid out, intersecting this ditch, subject to the pre-existing right of way of the said ditch, and it seems equally clear that the city should be held to have accepted such dedication and acquired control of these streets subject to the same pre-existing rights of the proprietors of the ditch. The city having thus acquired the fee and control of these streets, in trust for the public, under the conditions of the grant and dedication, must render them passable and keep in re

pair as the public necessity and convenience require, without interfering with the rightful and accustomed use of said ditch; that is to say, the use of said ditch to the same extent and for the like purposes enjoyed thereby prior to the grant and dedication of the streets to the city as aforesaid.

With respect to the streets intersected by the ditch within the congrossional grant, a different state of facts exists, and a more difficult question is presented. The company for the construction of this ditch was incorporated October 8, 1864. The construction was commenced thereafter, that same year, and completed the spring or summer following. The fact is conceded that long prior to the date of the incorporation of said company, and the construction of the ditch, the streets of that portion of the city included in the congressional grant and intersected by the ditch, to-wit, Champa, Curtis, Lawrence, Larimer, Holladay, Wazee, Wyncoop, Eighth, and Ninth streets, were laid out and mapped the same as they now exist, and the map filed as of record in the proper office of the county records. At this time, the title to the lands included in the city of Denver, as laid out and mapped as aforesaid, was in the United States, the lands being a part of the public domain, under the control of and subject to disposal by the general government. On the twenty-eighth of May, 1864, an act of congress, entitled "An act for the relief of the citizens of Denver, in the territory of Colorado," was approved; which act authorized the entry of the tract known as the "congressional grant," by the probate judge of the county, including such tract, in trust for the inhabitants, as a town-site. This entry was made by such probate judge, and a certificate of the entry thereof was issued on May, 6, 18C5, and a patent for the same was thereafter issued June 8, 1868. The city of Denver was incorporated by act of the legislature of the territory of Colorado, at the first session of such legislature, in 1861, and by said act the municipal authorities were authorized to have and exercise general control of the streets, alleys, and highways within the city.

Upon this state of facts, it is contended on behalf of the city that, at the time of the construction of the ditch, the city, by reason of the prior laying out of the streets, and the authority conferred by the charter or act of incorporation mentioned, acquired and still possesses the right to require the proprietors of the ditch to bridge the same at the street crossings when necessary, and that the construction and use of said ditch has always been subject to such right of the city. On the other hand, it is contended on behalf of the defendants in error that, chiefly for the reason that at the date of the incorporation of the ditch company and the construction of said ditch the title to the land in question was in the United States and not in the city, no prior valid right accrued to the city to exact of the ditch proprietors the requirements in controversy.

In further support of the contention on behalf of the city, the point is made in argument that the title of the city to the lands acquired

by the entry of May 8, 1865, relates back to the date of the act of May 28, 1864, authorizing the entry. We cannot assent to the correctness of this proposition. This last-mentioned act is not in the nature of a grant, but is simply a provision to enable the city to acquire title to land for a town-site, if it should thereafter elect to avail itself of the provisions of the act, and it is not perceived upon what principle the title subsequently acquired by the entry could relate back to the act mentioned, any more than the title acquired by entry of public lands by a private citizen can relate back to the date of the law of congress which authorized such entry; and, in the case of such entries under the acts of congress for the disposal of the public domain, it is not questioned that the title accrues to the party making the entry at the date of such entry, and not before. The government itself does not really part with the title until the issue of the patent therefor, but upon the issue of such patent the title conveyed by the grant is held to relate back to the date of the entry as evidenced by the certificate thereof.

Can it be said that the city acquired such a right to the streets under and by virtue of its charter in 1861 as would enable it to assert such right as superior to the rights subsequently acquired by the ditch company? We think not. The act of congress creating the territory of Colorado, usually called the organic act, approved February 28, 1861, limited the legislative power of the territory to "all rightful subjects of legislation consistent with the constitution of the United States and the provisions of this act;" and, in the same section, declares that "no law shall be passed interfering with the primary disposal of the soil;" and also prohibits the passing of any law "impairing the rights of private property." While the conferring upon the municipal authorities of a town the power to control generally the streets, looking to their necessary and proper use as such by the public, is certainly a rightful subject of legislation, yet it is to be borne in mind that ditches and artificial streams of water for irrigating, milling, and other like purposes, were of such prime necessity in regions like Colorado that the legislation of congress, as well as of the territory, has frequently declared the paramount value of the rights springing from such necessity, and the courts have been very careful to guard such rights.

In the case of Broder v. Water Co. 101 U. S. 274, which was an action to have a certain irrigating ditch or canal declared a nuisance and abated as such, the act of congress of July 26, 1866, was involved. The ninth section of this act declares that "whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same, and the

right of way for the construction of ditches and canals, for the purposes aforesaid, is hereby acknowledged and confirmed." The supreme court of the United States, in construing and applying this provision of the act to the case before them, say:

"It is the established doctrine of this court that rights of miners, who had taken possession of the mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations, and for purposes of agricultural irrigation in the region where such artificial use of the water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged, and was bound to protect, before the passage of the act of 1866. We are of opinion that the section of the act which we have quoted 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."

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Much other authority, in the decisions of courts, and in legislative acts, both of congress and of our own territory, might be cited upon this point. We are forced to conclude that the authority conferred by the act of 1861, incorporating the city of Denver, in respect to the control of the streets by the city, cannot be extended to invalidate the acquisition thereafter by the ditch proprietors of a right of way through lands which were then a part of the public domain, and prior to the acquisition of title thereto by the city, although streets had been previously laid out thereon and traveled.

Bearing upon the question of the relative rights and liabilities of the parties under discussion, it is not unimportant to notice that from the testimony it appears that the ditch proprietors, and those using the water therein, have never conceded the right of the city to require them to bridge the ditch, but have always resisted such demand; and that, on the other hand, the city, from time to time, has bridged the streets mostly traveled where crossed by the ditch or raceway below the mills; that some of these bridges were built by the city many years ago, and have been maintained and kept in repair by the city ever since, thus apparently acquiescing in, if not acknowledging, the rights claimed by the defendants in error.

In consequence of the public interests involved, as well as the great value of the property that would be affected by the destruction of the ditch or the diversion of the water from the use of the defendants in error, we have given this case that careful consideration which the respective rights and interests involved therein demands, and upon such consideration of the whole case we are convinced that the city is without right to require the defendants in error to bridge the ditch as demanded of them, or to interfere with the flow and use of the water in said ditch to the extent and for the purposes heretofore used and enjoyed, but that the duty and obligation to construct such bridges, whenever and wherever the public necessity and convenience require, and to maintain and keep the same in repair, devolves upon the city. We are not to be understood as holding that the said ditch, or the use

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