50 Colo. 371 | Colo. | 1911
delivered the opinion of the court:
March 9, 1906, N. G. Strayer, in his own behalf,
' The plaintiffs are residents of Port -Collins and owners of lands situated along the right of way of the irrigating ditch between the points designated. The ditch was constructed in 1873, and the lands were then owned by the builders of the ditch, or by persons assenting to its construction. Thereafter, the particular land was platted into lots and blocks as an addition to, and became a 'part of, the city. The plaintiffs, or their assignors, severally acquired ownership of lots in such addition, and built houses and other improvements thereon in close proximity to the ditch line, with the full knowledge and acquiescence of the defendant. It was alleged in the complaint that the ditch £ £ at all times has been limited to a width not exceeding ten feet upon Its bottom”; that April 2, 1902, in á case wherein the city of Port Collins was plaintiff and The Arthur Irrigation Company was defendant, a decree was entered by the district court of Larimer county, wherein it was found and decreed, in reference to the particular ditch; in question* “that said ditch extends through the city of Port Collins, crosses and runs along divers and sundry streets and alleys of said city of Port Collins; that said ditch was constructed in 1873, and, as heretofore maintained through said city of Port Collins, was ten feet wide- upon the bottom ; that the only right of way for the maintenance and operation of said ditch through said city, which
The complaint then alleges that the plaintiffs are entitled to the full benefit of 'said decree; that defendant' intends to, and, unless restrained, will widen its ditch to more than three times its present width; that the ditch cannot be widened without the total destruction of the houses, barns and improvements of plaintiffs, built and constructed along the line of the ditch as aforesaid.
The answer claimed a right of way for the ditch forty feet in width — twenty feet on each side of the center line of the ditch;, denied that defendant acquiesced in the building of the improvements by plaintiffs,- or their, assignors, along the line of the ditch; admitted the entry and existence of the decree pleaded; denied thatdefendant, in widening its ditch and operating the same, would destroy the improvements of plaintiffs • along the line thereof, “unless the plaintiff, and those-whom he.represents, had trespassed and encroached on defendant’s-right of way. ” '.
"When the owner of lands voluntarily consents to the construction of an irrigating ditch across or over the same, the right of the owner of such ditch to maintain and use the same as built, is absolute against all persons. — Tynon v. Despain, 22 Colo. 240, 249. And when one buys lands, through which, at the time, there exists an irrigating ditch in operation, the right of the owner of such ditch to maintain and use the same as before, is in no wise affected. The right so acquired is an easement in the lands through which the ditch runs, but the legal title to the lands upon which the servitude rests is in the owner of the servient estate. While the right so acquired extends to the bed of the ditch and sufficient ground on either side thereof to properly operate the same, it does not vest authority in the owner of the ditch to place a greater servitude or burden upon the lands than existed at the time the ditch was constructed, or was reasonably necessary to properly operate it. The extent of the right necessarily depends, in each case, upon various circumstances and conditions. Moreover, the right may be limited or curtailed by the action and acquiescence of the parties interested. Whatever may have been the rights of the defendant, if it had used the land .on either side of the ditch for the purpose of operating and maintaining the same, need not be deter
The defendant further argues that the decree is uncertain, unintelligible, and impossible of construction, so as to inform either party of his respective rights; that it gives no definite information of what defendant’s right of way consists; that it enjoins defendant from interfering in any way with the improvements made along the bank of its ditch, and fails to disclose of what such improvements consist.
Perhaps the decree might have been made more definite and certain in some particulars, yet we do not consider it so imperfect as-to require us to set it aside. While the meaning of a decree necessarily depends upon its own terms, the pleadings upon
Affirmed.
Chief Justice Campbell and Mr. Justice Musses. concur.