Gilpin observer., 1911-08-24
City Can't
Act Legally
ATTORNEYS OPINION is THAT
CENTRAL CANNOT ACQUIRE
BANCROFT WATER AND SELL
1T TO MINES AND MILLS.

At the adjourned meeting CT the
City Council, held on Thursday eve
ming of last week, the report OF
Chase Withrow, city attorney, or
the water question, was read, accep
ted and ordered filed, and it was
agreed to let the question rest for
the present. The report is as fol
lows:
Central City, Colo, Aug. II, 1911
To the Hon Mayor and City Council,
of the City of Central:
Gentlemen,
In regard to the proposition sub
mitted to me, that the City of Cen
trail purchase the Lakes and Water
Rights of Mr.. Bancroft, situate near
the head of Fall River in Clear Greek
County, Colorado, have to say:
1t is, at least, an open question as
the water and water rights he claims
to have. and which would be availa-
BILE to the City.
AS to whether or not litigation
would ensue on the taking and diver
sion OF water from his lakes and
property, is not an open question; !;
this water, on Fall River and on
Clear Creek, would at once on the
diversion of the water, sue to enforce
the rights they claim what the re-
suit OF this litigation would be, can
not now be determined; but these
suits would have to be defended. by
the purchasers of the water and wa
Ter rights after the purchase: the
costs. expenses, damages and attor-
ney's fees. could be protected against
by bond In a sufficient sum. sign
ed by some solvent Surety Company;
this however. does not and would
not serve the purposes. or the inter
ests OF the City.
If there is a continuous flow or
stream coming from these lakes. in
10 either sall River or Clear Creek.
it would follow that it cannot be
flood water.
Flood water may be the result of
either of two causes:
lst.-The water which comes down
in unusual quantities and at unusual
times, or at least unexpected times,
of which no use can be made;
2nd.-The natural flow of the wa
ters draining into a stream at the
time of spring freshets which may
happen every year, raising the flow
OF all streams for few months.
Neither Of these conditions will
justify the purchase proposed.
But the paramount question in this
matter. is as to whether or not the
City of Central has the power or
right to buy these rights. even If
the title was perfect; this question
can have but one answer, that is,
Municipal Corporations are institu-
tions designed for the local govern
ment of towns and cities; as is said
by Mr.. Dillon in his work on NUM-
cipal Corporations. ITO clothe them
with powers to accomplish purposes
which can better be left to private
enterprise, is unwise. To invest
them with the powers of individuals
or Of private corporations. for objects
not pertaining to municipal rule, is
to prevert the institution from its
legitimate ends, and to require Of 1t
duties which 1t is not adapted salts
factorily to execute"
1t has no powers except such as
are expressly granted. and such Incl
dental powers as are necessary to
the powers expressly given; now
II the City needs this water for do
nestle purposes. sanitary and fire
purposes, 1t has the right and may
enforce that right by condemnation
proceedings, II necessary.
II the reason for the acquisition Of
this water is to create Surplus"
for the purpose CT sale or for the
purpose Of supplying water to outside
districts or for mines and mills, for
manufacturing purposes. either with
in or without the City. 1t has not the
right.
1t is practically impossible for the
City to provide for domestic. sanitary
and fire purposes, the precise amount
required at all times. therefore 1t is
proper. reasonable and necessary that
a larger amount be provided and the
providing Of two or more times the
amount computed to be necessary. at.
solutely. is reasonable and proper
aud 1t Is this surplus that the stat.
utes contemplatcs, may be sold, but
There is no authority for, and the
Legislature cannot give the authori.