21 Colo. 188 | Colo. | 1895
delivered the opinion of the court.
This is an action brought by Mary M. Arnett against Eliza and David Linhart to recover damages resulting from the interruption of the use of an irrigating ditch, and the consequent loss of water for irrigation purposes, and for certain equitable relief.
Upon the conclusion of plaintiff’s evidence, the court below sustained a motion for nonsuit and dismissed the action at plaintiff’s cost. The assignment of errors challenges the correctness of this ruling. From the record it appears that on the 8th day of April, 1886, defendants conveyed, by warranty deed, to plaintiff a certain piece of land containing about eleven acres; and also a water right, the extent of which is in dispute between the parties, plaintiff contending that she is the owner of the entire water right, and defendants claiming an undivided one half of the same. Since the controversy in this case arose out of these conflicting claims, and a part of the relief sought involves an adjudication of these respective rights, we deem it best to determine this question at the outset. Plaintiff insists that, the water right involved having been used upon the land prior to her purchase, it therefore became and was an appurtenance thereto and passed to her by the conveyance of the land. Whatever may be the rule governing the transfer of water rights that, under the par
In the case at bar the deed to plaintiff expressly limits and determines the extent of the water right conveyed i o her. Its language is: “ That the said parties of the first part, for and in consideration * * * have granted, bargained, sold and conveyed, * * * all the following described lot or parcel of land and water rights; * * * . ”
After a description of the land by metes and bounds, the water right referred to is described as follows : “ And also a one half (|-) interest in a certain ditch taken from a certain gulch known as ‘Dad Clark Gulch,’ said ditch being now constructed.”
By expressly conveying a one half interest in the ditch, the grantors manifestly intended to convey a like interest in the water right, and reserve a one half interest in that right as well as in the ditch itself; otherwise the reservation of an interest in the ditch would be absolutely worthless. We conclude, therefore, that the plaintiff is the owner of one half of the ditch and entitled to the use of one half of the water appropriated thereby. The ditch is known as the “ Linhart Ditch No. 2,” and appropriates the entire flow of water in Dad Clark gulch. It appears that defendants, upon being denied the right to use any water flowing in this ditch, in the fall of
This testimony was undisputed, and, upon a motion for a nonsuit, must be taken as true. It is clearly sufficient to sustain a recovery in some amount. The claim of appellees, that by reason of plaintiff’s conduct in wrongfully preventing them from using water through ditch No. 2 they were compelled to build the new ditch, and that she is therefore estopped from claiming damages that resulted to her thereby, is untenable. They could have enforced their right to use their portion of the water through ditch No. 2 by instituting proper proceedings, and it is no defense to their liability for the injuries, if any, that she sustained by the construction and use of a new ditch, that she refused to allow them to use their share of the water through ditch No. 2. And, furthermore, upon the pleadings, the plaintiff is entitled to have the priority of record between the respective ditches adjudged and determined. We think the court below erred in sustaining the motion for a nonsuit. The judgment is accordingly reversed and cause remanded.
Reversed.