Green Valley Ditch Co. v. Schneider

50 Colo. 606 | Colo. | 1911

Mr. Justice Gabbert

delivered the opinion of the court:

Plaintiff’s rights were limited and only attached to the water discharged from the Tegeler lateral, whatever that happened to be, after the defendants and cross-complainants had supplied their own wants and necessities. This does not vest her with any control over the ditches or laterals of appellants, or, the water flowing therein, nor does it obligate appellants to continue or maintain- conditions ■ so as to supply plaintiff’s appropriation of waste water at any time or in any quantity,, when- acting in good faith. — Mabee v. Platte Land Co., 17 Col. App. 476; The Fairplay Hy. M. Co. v. Weston, 29 Colo. 125.

The decree of the trial court seems in some respects to impose upon the appellants such an obligation, without regard to their good faith. This is erroneous. The case is remanded -to the district court with directions to modify its decree in accordance with the views herein expressed, and as thus modified, it will stand affirmed.

In view of the charge in the complaint of the willful waste of water by the defendants and the express finding' of the court that appellant Tegeler had been guilty of such conduct, we deem it proper to state that defendants cannot willfully and maliciously discharge water as waste, and then invoke the protection of the law as above- declared. This is a proper matter for the court to consider, and make provision for, in modifying the decree.

Modified and affirmed.

Chibe Justice Campbell and Mr. Justice Hill concur.