North Poudre Irrigation Co. v. Smith

75 Colo. 406 | Colo. | 1924

Mr. Justice Burke

delivered the opinion of the court.

These parties appeared in reverse order in the trial court and are hereinafter designated as there.

Plaintiff Smith is the owner of certain land irrigated by defendant’s canal, and also the owner of forty shares of the capital stock of defendant Company. Plaintiff Webster is the tenant of Smith. It is alleged in the complaint that defendant company, through its agents, interfered with plaintiff’s diversion of water through his headgate and diverting structure, during the years 1919, 1920, 1921 and 1922, to plaintiff’s actual damage in the sum of twenty-five hundred dollars. The prayer is for that amount, plus one thousand dollars exemplary damages, and a mandatory injunction requiring defendant to so operate and maintain the diverting structure as to deliver to plaintiffs the water to which they are entitled, and enjoining defendant from further interfering with their rights in the premises. The cause was tried to the court without a jury. The findings were that plaintiffs were entitled to water for irrigation as alleged in their complaint and that during the years 1920, 1921 and 1922, defendant interfered therewith. The decree awarded plaintiffs damages in the sum of fifteen hundred dollars. To review that judgment this writ is prosecuted and defendant asks that it be made a supersedeas. The parties join in a request that the cause be finally disposed of on this application.

The only question raised by the assignments and argued in the briefs, is the sufficiency of the evidence to support the judgment. No good purpose can be served by a review of that evidence. Suffice it to say that we have examined it with care and are of the opinion that it amply supports the findings of the trial court that defendant had interfered with plaintiffs’ rights as alleged, that plaintiffs had sustained damages thereby, and that it would have supported an award of damages in excess of the amount decreed. In addition thereto the trial judge, accompanied by counsel for the parties, inspected the diverting structure and surrounding conditions. It is therefore not within our province to interfere with those findings. Hallack v. Stockdale, 14 Colo. 198, 23 Pac. 340.

The supersedeas is accordingly denied and the judgment affirmed.

Mr. Chief Justice Teller and Mr. Justice Allen concur.