259 F. 293 | D. Colo. | 1919
This suit was brought in the Circuit Court in January, 1909, by Samuel Sternberger, a resident and citizen of the State of Pennsylvania, against the defendants, both residents and citizens of Colorado. The bill sets up a controversy over water rights in the Fall River, a small mountain stream. The complainant was the owner of two placer claims and the “F” millsite on that stream. He also began the construction of a ditch and pipe line from the stream, known as the Pennsylvania Mining Company of Colorado’s Ditch Number Two, to the millsite, in December, 1905. He made claim to all of the water flowing in the stream for irrigation, placer mining,
A plea entered by the defendants disclosed that a proceeding was then pending in the State District Court in which the disputed water right was in issue, and would be adjudicated. This suit thereafter remained in suspense until that adjudication could be had, except the issuance of the temporary writ of injunction on April 19, 1909, enjoining the defendants from discharging the waters of Pall River at their power plant in such manner that they would not return to the bed of the stream above the complainant’s headgate and dam. The order for that writ further provided that—
“defendant shall be required to return the said waters to the sáid stream of Fall Kiver above the said dam and headgate of complainant by some proper and convenient method of return to be agreed upon, if such agreement is found possible, between the parties hereto, the complainant to provide and pay one-half of the actual expense of the construction of such necessary and propet method of return of said waters, and the defendants to pay the other one-half thereof, a true and correct account and statement of such expense to be certified and returned to this court and filed herein upon completion of said*295 work and the payment therefor, the amount so paid in advance by the parties hereto, respectively, to bo repaid by the unsuccessful party upon the final determination of this cause, and subject to the further and final order of this court in the premises.
“It is further ordered that in case of the inability of the parties hereto to agree upon a proper method of return of the said waters that application may be made to this court for a further and proper order in this regard.”
The parties were unable to agree on the method of returning the waters to the stream, and so reported to the court on May 19, 1910, and on that day the following order was made in the cause:
“This cause comes on now to be heard upon the motion of the complainant for an 'order modifying the injunction heretofore issued heroin, and is argued by counsel, .John R. Smith, Esq., appearing as solicitor for the complainant, and Emilio D. De Soto, Esq., appearing as solicitor for the respondents. And thereupon, on consideration thereof, and it appearing to 1he court that the parties hereto are unable to agree upon the method by which the waters in controversy are to he returned to the stream from which they have been taken by the respondents, it is ordered by the court that the respondents return to the stream the waters taken therefrom by them, in such manner as they shall select, at a point above the dam built by complainant, within fifteen days from this day.”
Thereafter, and on February 5, 1915, the complainant filed his supplemental complaint, setting up that the State court, on October 9,. 1914, had adjudged that complainant was the owner of the water right which he claimed in his- original complaint, and had denied to the defendant corporation the right to use said water. The complainant attached to his supplemental bill a statement of account showing that he had expended $1,048.85 in the construction of a flume during the months of June, July, August and September, 1910, for the return to the stream above complainant’s dam of the water which the defendant corporation had taken out of the stream and carried to its power plant.
The answer to the supplemental complaint, filed December 9, 1916, set's up that the defendant corporation, within fifteen days after the order of May 19, 1910, constructed a proper ditch for the return to Fall River, above the dam and headgate of complainant, of the waters taken therefrom by it, and it, through such ditch, returned the waters to Fall River, and that it has at all times since been ready and willing to return the waters to the stream through said ditch hut that the complainant, without the consent of the defendant corporation constructed a conduit flume by and through which the waters might be returned to the stream at another and different point selected by the complainant.
On October 6, 1917, the defendant corporation moved that the suit be dismissed for the reason that the complainant had parted with his entire interest in the property involved in this suit, to the Fall River Power Company, a corporation organized under the laws of the State of Colorado, and a citizen and resident of the same state as that of the defendants.
On January 14, 1919, Leopold Sternberger filed his petition in the cause reciting that since the commencement of the suit Samuel Sternberger, the complainant, had died, and that on the 17th day of December, 1918, Leopold Sternberger was appointed administrator of the estate of Samuel Sternberger by the County Court of Clear Creek Coun
Defendants’ motion to dismiss was then set down for hearing, and the defendants, to sustain the allegation of fact in their motion, offered in evidence two deeds from Samuel Sternberger to the Fall River Power Company, one of date November 17, 1910, and the other August 18, 1911. By these deeds Samuel Sternberger conveyed to the Fall River Power Company the two placer claims and the millsite named in. the complaint, also the dam, power house, plant and all buildings and improvements now upon said placer and millsite, and all poles, wires and transmission lines, and pipe lines now running to and from the power house and plant situated on the “F” millsite, together with the appurtenances and privileges thereto incident, also the ditch, flume or pipe line known as the Pennsylvania Mining. Company of Colorado’s Ditch, Flume or Pipe Dine Number Two, the stream from which water is taken for said ditch, flume or pipe line being the Fall River in Clear Creek County, and the terminus of the ditch, flume or pipe line being on the “F” millsite, and also all rights thereunder of every kind and nature. These conveyances are not denied. The defendants thereup"on pressed both their motion to dismiss and also moved to vacate the order reviving the cause in the name of the administrator, Deopold Sternberger. The two motions will be separately considered.
Leave until June 20th next is therefore given to the Fall River Power Company to come in and be substituted as complainant. On its failure to do so the motion to dismiss will be sustained.