Arnold v. Roup

• Decision Date: 01 May 1916
• Docket Number: 8521.
• Citation: 61 Colo. 316,157 P. 206
• Parties: ARNOLD et al. v. ROUP.
• Court: Colorado Supreme Court

157 P. 206

61 Colo. 316

ARNOLD et al. v. ROUP.

No. 8521.

Supreme Court of Colorado

May 1, 1916

Error to District Court, Routt County; John T. Shumate, Judge.

Action by Jackson T. Roup to declare an abandonment of a portion of a ditch decree for irrigation and have injunction against Harry Arnold and others. To review a judgment for plaintiff defendants bring error. Judgment reversed, and cause remanded for further proceedings in accordance with the opinion.

G. K. Hartenstein, of Buena Vista, J. M. Childress of Yampa, and Chas. A. Morning, of Steamboat Springs, for plaintiffs in error.

Ernest W. Norlin, of Oak Creek, and T. M. Morrow, of Scottsbluff Neb., for defendant in error.

GARRIGUES J.

The owner of the Collins ditch brought this action to have declared an abandonment of a portion of the Simon ditch decree for irrigation and to enjoin plaintiffs in error from diverting any portion thereof in excess of 1 2/3 cubic feet per second. The court found that the decreed amount over and above 4.86 cubic feet per second had been abandoned and enjoined the use of the excess. Defendants bring the case here on error.

Plaintiffs in error, except the water commissioner, own the Simon ditch. Defendant in error, Jackson T. Roup, owns the Collins ditch. Both ditches divert water from Middle Hunt creek, in Routt county, and the headgate of the Collins is below the headgate of the Simon ditch.

One Peter Simon located a government homestead on 160 acres of land, and in 1900 pre-empted an additional quarter section, to both of which tracts he obtained title. He also leased from the state a school section which he held for some 20 years prior to 1910. These tracts are contiguous, and in the main all the land is under the Simon ditch. During or prior to 1888 Simon constructed the Simon ditch for the purpose of diverting water from the creek for the irrigation of the lands under the ditch, and at the first general adjudication proceeding in water district No. 58 a decree was entered September 22, 1892, settling the volume and priority to all the irrigating ditches in the district, by which Simon, as claimant, obtained a decree for the Simon ditch No. 50, by which it is awarded ditch priority No. 52 for 10 cubic feet per second, which had been beneficially applied in the irrigation of 600 acres of the land. It then recites:

'It is hereby adjudged and decreed that there shall be allowed to flow into said ditch from said creek for the use aforesaid, for the benefit of the parties lawfully entitled thereto under and by virtue of appropriation, by original construction, priority No. 52 to 10 cubic feet per second, dating from June 1, 1888.'

The decree among other general provisions contains the following:

'Throughout said water district No. 58 one cubic foot of water per second of time, or 60 cubic feet of water per minute, is hereby adjudged to be sufficient in amount to properly and practically irrigate 60 acres of land, and nothing in this decree shall be taken or held to grant to any tract or parcel of land water to any greater amount than in said ratio and proportion, whether the said land be covered by one or more ditches.'

The Collins ditch was subsequently constructed, and thereafter a decree was entered September 19, 1910, settling its priority of appropriation which gave to it No. 206, ditch priority No. 143aa, dating from October 14, 1898, and fixed the volume appropriated to a beneficial use upon a 160-acre tract for which it was constructed to irrigate at 2 1/3 cubic feet per second. In 1910 Roup, plaintiff below, purchased this tract, together with the Collins ditch and water. The same year Simon sold and conveyed to plaintiffs in error by deeds which were duly recorded all his interest in the Simon lands, ditch, and water. The method of consummating this transaction does not clearly appear, but that is immaterial, inasmuch as their right and title to the volume decreed the ditch not found to have been abandoned by Simon is not disputed. The Simon lands consisted principally of meadow, pasture, and cultivated lands; the meadow land predominating. About 1909 or 1910 the state released the school section to the United States, and it was thrown open to entry upon payment to Simon by the entrymen for his improvements, including the ditch and water rights. Some arrangement or settlement seems to have been made whereby Arnold purchased Simon's homestead, Gumlick his pre-emption, and others settled upon the school section; they together purchasing the Simon ditch and water. In other words, they individually or collectively succeeded to all the rights of Simon in all the land and improvements thereon, including the ditch and water. These negotiations were in progress during 1910. There was no farming that year, no water was used on the land from the ditch, and it became filled up in some places and broken in others. Portions of the ditch lie in a mountainous country, and it was necessary to repair breaks and clean it each year. In 1911 plaintiffs in error repaired broken portions of the ditch and cleaned it out so it would carry 16 cubic feet per second, with the view of obtaining a second priority for a first enlargement, and diverted and beneficially applied upon the land the ditch's decreed appropriation from 1911 until and during 1913, and February, 1914, Roup commenced this action. He pleads the Simon decree of 1892, the Collins decree of 1910, his ownership of the Collins land, ditch, and water, and alleges that Simon since his decree and up to 1910 had not diverted, applied beneficially, nor used more than 1 2/3 cubic feet of water per second on to exceed 100 acres of land, and that the excess was prior to 1910 voluntarily abandoned by Simon and beneficially applied by plaintiff; that in 1910 Simon conveyed his land, ditch, and water to the various defendants, except Hutchinson, who is water commissioner, and they now claim to own the full volume of the decree, notwithstanding the alleged abandonment; that the conveyances, except as to the 1 2/3 feet not abandoned, are a nullity and void, and were made in defiance of plaintiff's vested right to the use from the stream of the abandoned water; that during the irrigating season of 1913 the water commissioner, notwithstanding the abandonment, recognized the Simon decree to its full volume as senior to the Collins appropriation, and permitted defendants (plaintiffs in error) to divert the whole 10 feet, although they had not to exceed 200 acres under the ditch subject to beneficial irrigation, which deprived plaintiff of the use of the water; that defendants are preparing to and will commence at once to enlarge their irrigated acreage and the use of the Simon appropriation by bringing large tracts of new land under irrigation, which, from the enlarged use of the water, will deprive plaintiff in times of scarcity of his appropriation under the Collins ditch; and he prays for a decree restricting defendants to the use of so much of the water decree the Simon ditch as has not been abandoned since the decree, when used at the ratio of one cubic foot to 60 acres of land; that the court specifically define and enforce the Simon decree; that the amount of water to which the ditch is now entitled be determined, and the decree reduced according to law and equity, and the plaintiff's right to the use of the water be adjudged and determined.

The court found, while there was decreed to the Simon ditch 10 cubic feet per second, with priority dating as of June 1, 1888, which had been beneficially applied for the irrigation of 600 acres of land, still, from the evidence in this case, there had not, in fact, prior to 1898, been brought under cultivation and beneficially irrigated to exceed 291.64 acres of land through the Simon ditch, and that there had not been beneficially applied and used to exceed 4.86 cubic feet per second for the irrigation of the land; that, if more than one cubic foot per second for each 60 acres had been used and permitted to flow from the ditch upon the land, it was unnecessary for its irrigation, and was in derogation of and contrary to the provisions of the decree of 1892; that a diversion of more than 4.86 cubic feet per second should not have been permitted through the ditch for the irrigation of the lands. It entered a decree to that effect, and perpetually enjoined the diversion of any water on the decree in excess of that amount.

2. It is uncertain whether the original purpose and object of this action was to have declared abandoned some portion of the volume decreed the ditch, or whether it was intended as an independent action in equity brought to adjudicate and settle the volume of an inchoate or conditional decree. It appears to contain both features. We are impressed that counsel who prepared and tried the case below entertained a theory that the Simon ditch decree was conditional--based upon the future beneficial application of the water. Here counsel for defendant in error contend that the Simon ditch decree is absolute, and base their argument in support of the judgment below upon abandonment. The two theories are irreconcilable, and the complaint should have been more specific and certain so the court might have known definitely whether it was trying an abandonment case or settling the volume of a conditional decree. From the remarks of the court as well as the findings it appears to have regarded the Simon decree as conditional and that the purpose of the action was to adjudicate and settle its conditional features as to volume, and counsel in support of such findings cite Drach v. Isola, 48 Colo. 134, 109 P. 748. In the same brief, however, they contend that the Simon decree is absolute, and in support of the abandonment theory cite New...