44 Colo. 409 | Colo. | 1908
delivered the opinion of the court:
Levi Booth, the defendant, owned eighty acres of land near Cherry creek, a natural stream. He built the Success ditch and through it diverted water' from the creek and applied it to the land. The record does not disclose the quantity of water appropriated, hut that is not important here. Booth subdivided the tract into five-acre lots, one of which he sold to Henry Trager in 1888, which its owner has used for a market garden. Immediately following the description of the lot in the deed is this language: ‘ ‘ Together with all water and ditch rights and privileges thereunto belonging, and sufficient to irrigate said land.”- Afterwards Llenry Trager sold this tract to Sophia Trager and Reinhold . Trager, the plaintiff, and afterwards Sophia sold her interest to Reinhold. In the last two mentioned deeds the language above italicized was omitted. In his complaint in this action Reinhold Trager alleges that during the years 1900, 1901, 1902 and a part of the year 1903, defendant Booth willfully and wrongfully diverted water which belonged to plaintiff, which,• occasioned a total or partial failure of plaintiff’s crops to his damage. The answer denied the material allegations of the complaint, and the 'cause was tried before a jury which gave a verdict for plaintiff, and defendant appealed.
We have carefully examined the abstract as made by defendant, and are satisfied that the judgment cannot stand because of the insufficiency of the evidence. If it were necessary to decide the point, it is doubtful if the convenant mentioned could be construed as evidencing an intention of the parties, or
The evidence is practically uneontradicted that during the period of time mentioned in the complaint there was a shortage of water during all or some, parts of the irrigating season. 1900 and 1901 were not so dry as the year 1902, but still there was not sufficient water in the Success ditch during either of these years to irrigate the eighty-acre tract for which the appropriation was made, or even that part of the same which plaintiff owned. There is no evidence that the right of any consumer in this ditch is superior to the right of any other consumer. The ditch was constructed and the appropriation of water made to irrigate eighty acres of land. In Booth’s deed to Henry Trager the quantity of water sold was not specified in cubic inches, but enough to irrigate the five acres was transferred. In the absence of any showing to the contrary, and since the parties themselves put that meaning on the conveyance by reeog
• "We do not attach any particular importance to the fact that the italicized words in the deed to Henry Trager were not present in the deed to this plaintiff. In no event could defendant Booth be held, at least in this action, for damages to plaintiff on account of a shortage of water in the natural stream or, because of that' shortage, for an insufficient supply to irrigate the tract of land which he conveyed, or for wrongful acts of others. Indeed, as we read the record, plaintiff did not receive water during all these years in
The judgment is reversed Reversed.
Chief Justice Steele and Mr. Justice Gabbert concur.