63 Colo. 522 | Colo. | 1917
delivered the opinion of the court:
This action was brought by The Leggett Ditch and Reservoir Company against The North Boulder Farmers’
There are fifty-seven assignments of error. For the purposes of argument, counsel have arranged them, in seven groups, the most important of which is the one bearing upon the contention that the testimony is insufficient to support the finding of abandonment. For convenience we will refer to The North Boulder Farmers’ Ditch Company as The Boulder Company, and its ditch as The Boulder Ditch, to The White Rock Ditch Company as The White Rock Company, and its ditch as The White Rock Ditch, and to The Leggett Ditch and Reservoir Company as The Leggett Company and to its ditch as The Leggett Ditch.
The record discloses that Boulder Creek in its course through the City of Boulder crosses Twelfth Street, which is carried over the stream by a bridge known as the Twelfth Street bridge; that just below this bridge is a diverting dam and headgate, through which water is taken from the creek into a common channel used by eight or nine different ditches; that this channel is usually referred to as Dry
“The evidence shows that the original Dry Creek ditch was built by D. H. Nichols, in the early sixties, and that the original channel and diverting works were enlarged, from time to time, upon the construction of other ditches.”
Plaintiffs in error claim that the organizers of The Boulder Company were the first who employed this means of carrying any considerable amount of water, and for that reason they were exercising virtually a proprietorship over the water course, and the water in it, in the year 1874. The question is immaterial. It is agreed that prior to 1862 this natural v/ater course was in existence. The court found that it was formerly a division or branch of Boulder Creek. The record discloses that in 1862 a number of farmers owning land adjacent to it constructed a channel in it, and the first headgate at the Twelfth Street bridge, whereby they diverted water from Boulder Creek into Dry Creek, and at convenient places took it out of this channel by constructing ditches therefrom; that a number of farmers owning land north and east of Dry Creek participated in the original construction, or soon thereafter enlarged it, constructing a ditch therefrom at a point lower down than the others, naming it The North Boulder Farmers’ Ditch, and that in 1863, and again in 1864, this ditch was enlarged, and in 1871 those interested in it incorporated under the name of The North Boulder Farmers’ Ditch Company; that in 1874 The White Rock Ditch, then known as The Beasley Ditch, was constructed, having its headgate at the same point as the others on Dry Creek, utilizing it as the conduit for its
“That whereas both the said companies have filed certificates of incorporation covering the right of way upon the same line from the point of commencement in the North Bank of Boulder Creek in the Town of Boulder in said Boulder County, near the bridge over said Boulder creek at the foot of Twelfth Street in said Town, to Lot Nine in Block “D” of the Town of East Boulder, where said ditches diverge,
And Whereas the said North Boulder Farmers’ Ditch Company has the oldest charter, privileges to that portion of said line; Now therefore in consideration of the agreements herein entered into on the part of Boulder & White Rock Ditch Company, the North Boulder Farmers’ Ditch Company hereby agree that said Boulder and White Rock Ditch Company shall have the right of way over that portion of their line, and to carry the water from Boulder Creek over said line to supply its said ditch, in the following terms and conditions, that is to say:
FIRST. The said Boulder & White Rock Ditch Company shall make, keep up and maintain a good and sufficient headgate at its point of commencement where the water is taken out of Boulder Creek and diverted into said ditch, for the use and supply of both said ditches:
SECOND. Said Boulder & White Rock Ditch Company shall make and maintain a good and sufficient headgate on said Lot Nine in Block “D”, where its said ditch diverges from the North Boulder Farmers’ Ditch, for the purpose of supplying the last named ditch with water from the outlet to be opened or enlarged and improved by said Boulder Sc
THIRD. Said Boulder & White Rock Ditch Company shall open an outlet as above described from Boulder. Creek to said point of divergence, of sufficient capacity to supply the North Boulder Farmers’ Ditch Company’s ditch with all the water it will carry in its present condition in addition to the supply of water for the Boulder & White Rock Ditch.
FOURTH. The said Boulder & White Rock Ditch Company shall supply the said ditch owned by the North Boulder Farmers’ Ditch Company with all the water their said ditch will carry in its present condition, when desired by the latter company so to do; and if said latter company shall elect to enlarge its said ditch at any time and shall at its own expense enlarge its said outlet in the same proportion to the enlargement of its ditch, so that the increased capacity of said outlet to carry and supply water shall be equal to the increased capacity of said North Boulder Farmers’ Ditch to convey such water, then the Boulder & White Rock Ditch Company shall supply water equal in quantity to the increased capacity of said North Boulder Farmers’ Ditch, and shall continue thereafter to supply said last named ditch with all it will so carry when so requested by the officers of said last named ditch company.
On the terms and conditions aforesaid the said North Boulder Farmers’ Ditch Company do hereby give, grant, bargain and sell unto said Boulder & White Rock Ditch Company the right of way from the said joint point of intersection of said ditches with Boulder Creek in said Town of Boulder to the point of divergence of said ditches on Lot Nine in Block “D”, in the Town of East Boulder, together with the right to convey water thereon for the purposes aforesaid, and also the exclusive right to all the water so conveyed over said line except sufficient thereof to supply the said North Boulder Farmers’ Ditch Company’s ditch with water to the extent before herein stated.
And the said Boulder & White Rock Ditch Company hereby agree to the conditions above named and in considera
The record further discloses that after the passage of our irrigation acts of 1879 and 1881, an adjudication proceeding was instituted thereunder in the District Court of Boulder County, to determine the priorities in this water district, which culminated in the decree of June 2, 1882, by which The White Rock Ditch was awarded Priority No. 35 from Boulder Creek by original construction as of date November 1, 1873 for 556.7 second feet for the first seven hundred yards of its ditch from the Twelfth Street head-gate, and 190.58 second cubic feet for the remainder of the line of said ditch. In this proceeding the referee further found, and the court approved such finding, that on the 1st of June, 1862, the original channel of said ditch was constructed under the name of The Dry Creek Ditch by David H. Nichols, Si. G. Smith, Cole Elsbary and Charles P. Hamlin, and claiming through said original owners, and by means of the original construction of said Dry Creek Ditch, the following persons were held to be entitled to water through and by means of the headgate and the first seven hundred yards of said Boulder and White Rock Ditch, so-called, in the amounts named and of the priority of June I, 1862, which was No. 11 on said Boulder Creek, that is to said David H. Nichols to 10 cubic feet per second of time, SI. G. Smith to 15 cubic feet, G. Berkeley 15 cubic feet, Wellman Nichol and Hahn 10.77 cubic feet, the heirs of Elizabeth Hardin, George W. Rust and Perry White to 5 cubic feet, William Beech to 2 cubic feet; and the following ditch companies, to-wit, The North Boulder Farmers’ Ditch Company to 10.78 cubic feet, and said ditch company, of the priority of June 1, 1863, to 65 cubic feet, being No. 20 on said creek, and of the priority of June 1, 1864 to 115 cubic feet, being No. 24 on said creek, and The Boulder and Left Hand Ditch Company,- of the priority of December the 1st, 1873 to 82.8 cubic feet, being No. 36 on said creek, and
The plaintiffs in error contend that upon account of the physical conditions, the contract heretofore referred to between the two ditch companies, and the language of the decree that the entire award of water to this Dry Creek channel as of any date was to The White Rock Company as both a carrier ditch, and a user of water, that the other ditches supplied therefrom, as well as its, beyond the seven hundred yard limit, taking water from the stream through this Dry Creek channel, are nothing more than laterals; that the trial court in dealing with it should have treated them all as one unit, but one ditch with different dates of priorities therefor, of different amounts, and that the court erred in considering testimony concerning the abandonment of water under The Boulder Company’s Ditch, alone, as a separate entity, and in refusing to consider it as a part of but one system, bound up together for all purposes. The fallacy with this argument is the false premise upon which it is based, and the lack of testimony to support it. The contract was made in 1874, the adjudication decree was rendered in 1882. The contract does not purport to bind or interfere with the rights of the seven other groups of individuals or corporations which the decree recognizes, in about three hundred feet of water carried through this same channel, and for which these several ditches were
Counsel for plaintiffs in error concede: First, that The Boulder Ditch has never been enlarged or extended since its original construction and enlargements of 1863 and 1864. Second, that the amount of acreage lying under it, and irrigated therefrom, has never been increased since the adjudication proceedings, and that the acreage being irrigated at the time this suit was brought was identically the same as had always been so irrigated under it. And third, that in no year up to the time of trial, had there ever been a crop failure under it due to lack of water. When all of these facts are considered, we are of opinion that rhe trial court was justified in holding that the full measure of proof exacted to warrant the conclusion of law adopted was fully supplied. Green Valley Co. v. Frantz, 54 Colo. 226, 129 Pac. 1006; Parsons v. Fort Morgan Co., 56 Colo. 146, 136 Pac. 1024; Affolter v. Rought & Ready Co., 60 Colo. 519, 154 Pac.738.
It is claimed that the contract of 1874 constituted a sale to The White Rock Company of all the waters to which The Boulder Company was entitled, in excess of its then carrying capacity, or in excess of any additional amount it might carry by virtue of any enlargement thereafter; that it was never thereafter enlarged, for which reason The White Rock Company became the owner of its decreed water, in excess of the forty-eight feet, and that this construction was at the time placed upon the contract by the parties to it, and has been adhered to ever since, The White Rock Company using all of said waters decreed to The Boulder Ditch in excess of the amount needed by it, which the testimony discloses did not exceed the forty-eight second - feet left it. While this claim, in part, is irreconcilable and inconsistent with the one preceding it, that all these priorities were awarded to The White Rock Ditch as a carrier ditch, we will
In passing upon this question, we can eliminate counsel’s argument pertaining to the effect of this contract upon account of its not being placed of record, by assuming (but without deciding), as they contend, that it was immaterial. The same disposition can be made of the question concerning its publicity, or whether The Leggett Company or its predecessors had notice of its contents, but we cannot agree to the construction that the plaintiffs in error now place upon it, or to the claim that the testimony discloses that such was intended when it was entered into, or thereafter acted upon accordingly, until this claim was made for it in June, 1911. In considering the instrument,, we must take into consideration the physical conditions and the surrounding circumstances. First, that the predecessors of The Boulder Company, with others, had constructed a ditch is this channel in 1862, enlarged it in ’63, and again in ’64, and, as the contract concedes, had the prior right of way to this Dry Creek channel in 1874, when The White Rock Company sought to use it for its ditch; that this was years before we had any law providing for the adjudication of priority rights, and that it was not then known what rights might ever be awarded to The Boulder Company other than as might be presumed by the custom then prevailing, and the act of Congress of 1866 recognizing the rights of priority by appropriation. The contract must also be construed in the light of the time when it was entered into. After recognizing The Boulder Company’s prior right to the right of way, it provides that The White Rock Company should have a right of way therein to carry its water, upon condition that it enlarge the headgate and the common channel to carry sufficient water for The Boulder Company’s ditch to the extent of its then capacity, in addition to the water for The White Rock Ditch, and if in the
Upon account of certain language in the original decree, it appears to have awarded to The Boulder Ditch under Priority No. 11, 10.78 cubic feet per second as of date 1862 by virtue of original construction. Under No. 20, 65 cubic feet as of date 1863, on account of first enlargement, and under No. 24, 115 cubic feet, as of date 1864 by virtue of the second enlargement making a total of 190.78 cubic feet. The court found that it clearly appears from this decree, and from the findings of the referee on which the award is based, that there are manifest clerical and arithmetical errors in said decree in this, that by the award of Priority No. 20 on account of first enlargement of 65 feet, the referee intended to and did include the total capacity of said ditch at the time of said enlargement, including Priority No. 11 for 10.78 cubic feet, awarded it on account of original construction; that by the award of 115 cubic feet on account of its second enlargement, said referee intended to and did include said Priorities Nos. 11 and 20, and that on account of said errors repeated in said decree, said decree should be revised and corrected, so that Priority No. 20 shall be for 54.22 cubic feet and said Priority No. 24 for 50 cubic feet, thus making its total for the original decree 115 cubic feet instead of 190.78, as the language in the latter part of the decree reads. Error is assigned to the court’s ruling in this respect, as well as to its alleged right in the circumstances of this case to go into the question at all. These questions lose their practical effect by the holding of
It is claimed that even though reliance was made by The Leggett Company upon abandonment by The Boulder Company and the proofs established abandonment, that there is nothing to show any subsequent appropriation by The Leggett Company of this abandoned right, as it is claimed there would have to be in order to entitle The Leggett Company to a decree of abandonment and injunctive relief against The White Rock Company to prevent it from taking the waters alleged to have been abandoned. Cache La Poudre Irrigating Co. v. Larimer & Weld Irrigation Co., 25 Colo. 144, 53 Pac. 318, 71 Am. St. 123, is cited as sustaining this contention. We cannot agree that this case thus holds or has any bearing upon the question. When a priority is abandoned the waters to which it was formerly entitled revert to and remain in the stream, to be taken by other ditches in the order of their respective priorities, chat is all that is asked for.
The demurrer that the complaint did not state a cause of action was properly overruled. The two and four year statutes of limitation pertaining to attacks upon decrees, have no application to cases of abandonment. The defense of laches in bringing the suit, charging abandonment, is not sustained by the testimony. The trial court held that the suit was brought immediately after The Leggett Company had knowledge that The White Rock Company made claim to, and was attempting to make use of, that portion
The alleged affirmative defense that there were similar clerical and arithmetical errors in The Leggett Company’s decree as were alleged to exist in The Boulder Company’s decree did not state a defense to the cause of action involving abandonment. If that question can be gone into, which we will not determine, and the truth of the allegation sustained, it would only establish that the decree to The Leggett Ditch was for a smaller amount than it claimed. This would not change the issue concerning abandonment; if it would tend to establish anything that was material it would be that the consumers under The Leggett Ditch, upon account of the smaller amount decreed it had more reason for having its rights protected to the smaller amount.
There is no merit in the claim that The Leggett Company is not the real party in interest. The most of this defense is argumentative. It does not allege that the water users’ association, or the corporations and individuals composing it, own or have any interest in The Leggett Ditch. The claim that this association composed of a large number of owners of water rights in District No. 6 are paying the expenses of this proceeding, if true, did not constitute a defense to the action.
Seaton Co. v. Idaho Springs Co., 49 Colo. 122, 111 Pac. 834, 33 L. R. A. (N. S.) 1078; Mining Co. v. Bentley, 10 Colo. App. 271, 50 Pac. 920.
The plaintiffs in error moved to have the owners of the other ditches using this common channel made parties. This motion was denied. We find no error in this respect. Their rights were not in controversy; nothing was claimed from them nor in their favor, and the decree does not purport to in any manner affect them. The claim that all consumers in the district should have been made parties, upon account of the question of abandonment being involved, was decided otherwise in Affolter et al. v. Rough & Ready I. D. Co., 60 Colo. 519, 154 Pac. 738, that decision controls this question.
Sterling v. Pawnee D. E. Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A. (N. S.) 238; Canal Co. v. Loutsenhizer D. Co., 23 Colo. 233, 48 Pac. 532; Farmers’ Independent D. Co. v. Agricultural D. Co., 22 Colo. 513, 45 Pac. 444, 55 Am. St. 149.
It is claimed that the language of the decree restrains The White Rock Company from using any water by virtue of Priority No. 11, that in addition to the 10.78 cubic feet awarded The Boulder Ditch by this priority, 78.77 feet were awarded to other ditches, down this channel, by this same priority; that the owners of this water were not parties to the action, for which reason that the court was without authority to make any order concerning the use of their water by The White Rock Company. We agree with this latter conclusion, but we cannot agree with the construction that counsel place upon the decree. The issues tried were the abandonment of water decreed to The Boulder Company, and the right of The White Rock Company in 1911, and thereafter, to use any portion of the water decreed to The Boulder Company, which the latter had abandoned. As we read it, the reference in the decree to Priorities Nos. 11, 20 and 24 applies only to waters awarded to The Boulder Ditch; its restraining features concerning The Boulder Company includes the following exceptions: “Subject, however, to any statutory rights to the loan or exchange, or the change of point of diversion of such water.” In that portion restraining The White Rock Company, the exception reads as follows: “Except it be under and pursuant only to any statutory provisions for the loan or exchange or for the change of point of diversion of such water.” It will thus be observed that this' decree does not attempt to effect or change the priorities awarded in the original decree, with the exception of the amount held to have been abandoned by The Boulder Company; that as to other waters the two companies are left in the same
We have considered the assignments to the reception and rejection of testimony, but think no ruling thereon reversible error; as the trial was by the court the rules of evidence are hot so rigid as when the trial is by jury.
B. & W. R. D. Co. v. L. C. D. & R. Co., 36 Colo. 455, 86 Pac. 101; Washburn v. Williams, 10 Colo. App. 153, 50 Pac. 233.
Complaint is made concerning the taxation of costs. It is claimed that because The Leggett Company plead and sought to sustain the allegation that The Boulder Company had abandoned all its priority in excess of twenty feet, but were unsuccessful in furnishing testimony to establish it for forty-eight feet, that the costs should have been apportioned accordingly. The Leggett Company sustained its claim to injunction relief, also the greater part of its claim concerning abandonment. In such circumstances, We cannot agree that there was an abuse of discretion in taxing all the costs against the losing parties.
Perceiving no prejudicial error, the judgment will be affirmed.
Affirmed.
Decision en banc.