Beaver Brook Reservoir & Canal Co. v. St. Vrain Reservoir & Fish Co.

• Decision Date: 08 April 1895
• Citation: 6 Colo.App. 130,40 P. 1066
• Parties: BEAVER BROOK RESERVOIR & CANAL CO. et al. v. ST. VRAIN RESERVOIR & FISH CO. [1]
• Court: Colorado Court of Appeals

40 P. 1066

6 Colo.App. 130

BEAVER BROOK RESERVOIR & CANAL CO. et al. v. ST. VRAIN RESERVOIR & FISH CO. ^[1]

Court of Appeals of Colorado

April 8, 1895

Appeal from district court, Boulder county.

Application for a writ of injunction by the St. Vrain Reservoir & Fish Company against Charles F. Fifer and another. From a decree of perpetual injunction, defendants appeal. Affirmed.

This was a suit in equity by appellee against appellants, and a controversy over the right to the possession of land in the mountains as a reservoir site for the storage of water to be used for irrigating agricultural lands some distance below Beaver Brook, the source of water supply for the reservoir being a tributary of the St. Vrain river. Until the year 1889 all the land in controversy was public domain, the property of the United States. Some time in the year 1882, Beach Bros. commenced the construction of a dam to make the reservoir. When partly constructed, in the same year (1882), Starbird, Bond & Culver organized under the name of the Tip Top Reservoir Company, purchased from the Beach Brothers, who were to complete the dam the ensuing year, for $10,000, which was paid, the dam was completed, and the Tip Top Company succeeded to the rights of Beach Bros. and took possession. The main dam was 400 feet long, 20 feet high from 50 to 60 feet wide on the bottom, and 20 feet wide on top. There was also another small dam, about 150 feet long and 10 feet high. Some time in the latter part of 1883 or in 1884, the Tip Top Reservoir Company sold the reservoir to the Supply Ditch Company. During the fall and winter of 1884 the reservoir was filled with water. At that time the entire cost was about $13,000. In the year 1884 the Supply Ditch Company and the Highland Reservoir were the joint owners. In June, 1885, a portion of the dam, about 70 feet in length, was carried away by high water. Many parties below were injured by the flood resulting from the breaking of the dam. Several suits were brought for the damages, and a large amount in the aggregate was paid by the owners. By reason of the litigation and want of money, no work of construction or repair was undertaken. Engineering work was done, and plans submitted preparatory to rebuilding. In 1888 work was done upon the small dam to the amount of about $60. In 1889 nothing appears to have been done except a visit from the officers of the owners, and tests made to ascertain the depth to bedrock with a view to putting in a permanent and substantial dam. In 1890 the companies employed Charles F. Fifer to make a drain ditch for the foundation, for which they paid him about $800. In 1891 and 1892 a large force was employed, the dam permanently built and completed, with the exception of putting in a large iron valve for controlling and discharging the water. Up to that time appellee and its grantors had expended from $22,000 to $24,000 in construction. In August, 1889, Charles F. Fifer made a settlement upon 160 acres of land a part of which was in the basin of the reservoir. His line crossed the dam of appellee's, taking a portion of it, on which appellee subsequently built the masonry for the reception of a discharge valve. On August 26, 1889, Fifer filed upon the land as a homestead for agricultural purposes, at the United States land office. In 1890 he "proved up," paid $200, and took a government certificate of entry. On June 17, 1893, he sold and conveyed the land to the Beaver Brook Reservoir & Canal Company (appellant). In August following (1893) appellant claimed title to that part of the reservoir site and so much of appellee's constructed dam as was embraced within the lines of the land purchased from Fifer, by virtue of the title of Fifer from the government. In the assertion of the rights claimed, appellant, it is alleged, by force and threats prevented appellee from removing the valve, and putting it in place, dispossessed appellee, took absolute possession of the reservoir and dam, and proceeded to remove a portion of the masonry erected, and with timber to finish the dam for the discharge of water. Appellee sued out a temporary writ of injunction restraining appellant from interfering with its possession. A trial was subsequently had, resulting in a decree of perpetual injunction, from which the appeal was prosecuted to this court.

Simon T. Horn, for appellants.

B.L. Carr and F.P. Secor, for appellee.

REED P.J. (after stating the facts).

Preliminary to the discussion of the legal questions involved, I may be permitted briefly to call attention to some of the peculiar features of the case, and facts evincing the intention and motives of the appellant Fifer, from whom the appellant corporation claimed to have acquired title to the property in controversy. The land taken by him as a homestead for agricultural purposes under the act of congress was, as shown by the evidence, a beaver swamp in the valley of the stream, so much of a bog as to render it almost inaccessible, producing a coarse sedge grass so poor in quality that stock would only eat when forced by hunger, but Fifer testified that a mowing machine might be used on it were it not for the angles and rocks. The balance of the land was covered with cliffs and rocks. The elevation was so great as to render the land totally unfit for cultivation. It is not shown that during the years it was occupied by Fifer an acre of it was put under cultivation. Previous to the taking of the land, a portion of one 40-acre tract, in connection with other adjoining land, had been taken, and for several years held and occupied as the reservoir site to store water for purposes of irrigation in the valley below. Thirteen thousand dollars had been spent in its improvement, perhaps not very wisely. Although a section of the dam had been carried away by a flood, at the time of his entry over 400 feet of it remained. The irregular shape of the claim taken, and the fact that he called the attention of the officer in the United States land office to the fact of the existence of the dam, and inquired in regard to his legal right to embrace it within his claim limits, shows almost conclusively the intention of the claimant to appropriate the dam, or at least to so control it as to render the remainder, and much larger portion, unavailable to the owners. The inequitable character of his claim of title to the property in controversy is shown by the fact that, with full knowledge of the claim of the owners, he looked on from 1889 to 1893, seeing thousands expended in improvements, recognizing the title and possession by accepting employment and receiving payment to the amount of $800, and in assisting the owners to appropriate land he claimed to own, and, when over $20,000 had been expended, and the construction practically finished, to take possession by force, and evict the owners, and, by holding the outlet as a key to the position, appropriating not only that portion within his boundaries but confiscating the balance. Such facts fail to appeal favorably to a court of equity, and go far towards estopping appellants from asserting any claim.

The evidence in regard to the possession previous to August 1893, is very peculiar and confusing. The evidence of Fifer and several other witnesses for the defense was that, after the entry of Fifer in 1889, he had "sole and exclusive possession." Sole and exclusive possession of what? The evidence established the fact that appellant and its grantors had had the actual possession of the property in controversy for many years, and retained it until forcibly dispossessed in August, 1893. If the evidence was intended to apply to the property in controversy, its falsity was so glaring as to subject it to severe criticism, if intended to be applied to the adjoining land occupied by Fifer, it was almost equally subject to criticism, being misleading in character and in regard to subject-matter where the rights of Fifer and his occupation and possession was conceded, and in regard to property in no way involved in the litigation. If the intention was to show constructive possession by reason of title, there was a misconception of the law of the case. The rule of law is well settled that there can be no constructive possession by virtue of title when there is an actual adverse holding. The fact is clearly established that appellee and its grantors had the possession of the property in controversy all the time; that in 1890 appellant did work for the company to the amount of $800; in 1892 and 1893 a large force of mechanics, laborers, and teams were employed, and the work practically completed early in August of the latter year; that on the 17th of August, Fifer shows by his own testimony that he and his associates forcibly dispossessed appellee, and the testimony clearly shows that the possession so taken at that date was the first actual possession of Fifer or his grantees. Fifer and other witnesses for the defense, in regard to their testimony as to possession, stand upon record in an unenviable light. Justice to them requires that they should apply or explain their testimony. It is evident the appellee and its grantors...