5 Colo. 325 | Colo. | 1880
At the date of the Colony deed to the appellant, the ditch conveyed stood charged with the servitude created by the Colony deed to the appellee, and the appellant took the ditch subject thereto.
If it could be permitted, the appellant, to attack the title of its grantor to avoid this servitude, we see no reason, on the evidence in this case, for saying that at the date of its conveyance to the appellant, the Colony Company had acquired no title or property in the ditch in question.
The ditch was to be twenty miles long, eighteen feet wide and three feet deep. The survey was commenced in the early part of 1871, and completed in the summer of that year. The work of construction commenced during the winter of 1871-2, and four or five miles of the ditch were completed the requisite width and depth.
About the first of October, 1872, the appellant took possession of the ditch under an agreement of purchase.
“To constitute due diligence does not require unusual efforts or expenditures, but only such constancy in the pursuit of the undertaking as is usual with those in like enterprises. Such assiduity as shows a Iona fide intention to complete it within a reasonable time.” Ophir S. M. Co. v. Carpenter, 4 Nev. 534.
There is no reason for saying that the want of diligence in this case, upon the part of the Colony Company, was such as to prevent the appropriation of the water dating back to the commencement of the work, there being no intervening claimants.
These are the only objections made by counsel to the decree of the court below, and it will be affirmed.
Deeree affvrmed.
