Bloom v. West

• Decision Date: 27 March 1893
• Citation: 32 P. 846,3 Colo.App. 212
• Parties: BLOOM et al. v. WEST et al.
• Court: Colorado Court of Appeals

32 P. 846

3 Colo.App. 212

BLOOM et al. v. WEST et al.

Court of Appeals of Colorado

March 27, 1893

Appeal from district court, Las Animas county.

Suit by Ed West and others against F.G. Bloom and others. Plaintiffs obtained a decree. Defendants appeal. Modified.

The other facts fully appear in the following statement by REED J.:

A suit in chancery was brought by appellees, to be declared to be the owners of one eighth of the water carried by an irrigating ditch known as the "Hoehne Ditch," and, in addition to one eighth, of an indefinite quantity, described in the complaint to be "the owner of the right to use for irrigating [certain lands described amounting to 40 acres or more] that portion of said water conveyed by said ditch, necessary for the proper irrigation for agricultural purposes of said land, and is the owner of the right to use said ditch for conducting said amount of water, necessary for the irrigation of said land for agricultural purposes, to the same." It appears by the pleading and evidence that other parties, who were made defendants, were the owners of three fourths of the ditch that their ownership and rights were conceded,--the contest being over the remaining one fourth, claimed to have been owned by appellee West and Bloom and his associates in common, their respective rights and ownership of the one fourth never having been determined. Plaintiffs asked to be decreed to be the owners of the interests as above stated and that the defendants (appellants) be enjoined from in any way interfering with it. The defendants answered, admitting by inference, the ownership of plaintiffs of one eighth of the ditch; admitting, also that they were the owners of one eighth, as stated in the complaint; but denying the right of the plaintiffs to any interest in such eighth, or to the use of any such water right from it, as claimed in the complaint for the use of the lands described; and for further answer, and what may be regarded as a cross complaint, filed the following: "That on or before the 31st day of October, 1879, one Michael Bashor was the owner of an undivided one-fourth interest in said Hoehne irrigating ditch; that at said time, and prior thereto, he used the water conveyed by said ditch, equal to one fourth thereof, to irrigate the northeast quarter of section five, and the southwest quarter of the southeast quarter and the north half of the southeast quarter of section five, township thirty-two south, of range sixty-two west; that on or about the said date the said Bashor conveyed to the plaintiff West an undivided one-sixteenth interest in said ditch, but that it was provided in said conveyance that said Bashor should retain the use of said water conveyed to said West at all times when the said West did not desire to use the same. The defendants further allege, upon information and belief, that said West never appropriated the use of said water, above specified, but for a temporary use and purpose of dipping sheep, which required but a few days during the season; that at all other times said water was used and appropriated by said Bashor upon the lands above described, and more particularly upon the lands hereinafter described, which were conveyed by said Bashor to these defendants; that on March 29, 1883, said Bashor conveyed to these defendants the west one half of the southeast quarter and the west one half of the northeast quarter of section five, and by said conveyance, also, an undivided one-eighth interest in said irrigating ditch, and that by said conveyance the said Bashor also conveyed all the appurtenances appertaining or belonging to said lands; that said Bashor had prior to said time conveyed the east two thirds of the east half of the northeast quarter of section five, together with an undivided one-sixteenth interest in said ditch; that defendants are informed and believe that the remainder of said water, equal to one fourth of the water conveyed by said ditch, continued to be appropriated upon the other lands owned by said Bashor up to the time the same were conveyed to these defendants. The defendants further allege, upon information and belief, that the amount of land in cultivation, upon which said water was used for irrigation upon that proportion of the lands conveyed to these defendants, was greater than the amount of land in cultivation upon all the other lands owned by said Bashor. The defendants further allege that there had never been a partition or division of the water used upon said lands purchased by Stanton and Presnell, to wit, the east two thirds of the northeast quarter of section five. The defendants allege, upon information and belief, that there was a greater amount of water used and appropriated upon that portion purchased by these defendants, equal to a one-twentieth interest in said ditch. The defendants further allege that the said West has claimed the right to appropriate one eighth of the water conveyed by said ditch upon the land owned by him, as described in the complaint. Wherefore, defendants demand judgment against the plaintiffs for a decree of this court establishing their right to use that portion of the water conveyed by said ditch in addition to the one eighth owned by them, equal to the proportion greater than one eighth which was used, consumed, and appropriated upon the lands which they now own, and for such other and further relief as may be meet and proper." To which new matter of defense and cross complaint a replication and answer were filed, traversing all the material allegations. A trial was had to the court, a finding in favor of the plaintiffs, and a decree entered, the material part being as follows: "Now, therefore, it is hereby ordered, adjudged, and decreed that the plaintiff West is the owner of an undivided one-eighth interest in said ditch, and the waters conveyed thereby, and in addition thereto is the owner of the right to conduct through, over, and along said ditch sufficient water to irrigate for agricultural purposes the said west third of the northeast quarter of southeast quarter of section five, township thirty-two south,...