Board of Com'rs of Clear Creek County v. McLean
| Decision Date | 01 May 1911 |
| Citation | 115 P. 525,50 Colo. 602 |
| Parties | BOARD OF COM'RS OF CLEAR CREEK COUNTY v. McLEAN |
| Court | Colorado Supreme Court |
Appeal from District Court, Clear Creek County; Flor Asbaugh, Judge.
Action by John W. McLean against the Board of County Commissioners of Clear Creek County. Judgment for plaintiff, and defendant appeals. Affirmed.
E. M. Sabin, for appellant.
William A. Dier, for appellee.
Appellee sued the appellant to recover an amount alleged to be due from it to him as its pro rata share for services performed by him as water commissioner of water district No. 9. The appellant denied that its county of Clear Creek, or any part thereof, was embraced in said water district, and alleged that there are no lands in said county irrigated from Bear creek or any of its tributaries. It denied that the appellee was the water commissioner in said district No. 9 and denied that payment had not been made for such services. Trial was to the court. Judgment was for the plaintiff in the sum of $1,138.33, from which this appeal is prosecuted.
The statutory provisions applicable to the controversy are as follows:
It will be seen that, in the section creating water district No. 9 Clear Creek county is not mentioned by name; hence, whether it or any part thereof was embraced in said district No. 9 was a question of fact to be determined upon the evidence, which discloses that Bear creek extended into and ran through a part of the counties of Clear Creek, Jefferson, and Arapahoe; that the lands irrigated from Bear creek and its tributaries are situated in these three counties and none other; that in Clear Creek county there were some eight or nine small ditches which took water from Bear creek for the purposes of irrigation; that about 150 acres of land in Clear Creek county was irrigated by the waters from this stream through these ditches; that approximately 3,000 acres of land were irrigated from the same stream and its tributaries in Jefferson county and about 1,000 acres in Arapahoe county. It was admitted that the services for which payment was claimed had been rendered by the appellee while acting in the capacity of water commissioner for this district, but that none of them had been performed in Clear Creek county, and that no request had been made to him by the county commissioners of that county or by any one else in that county for the performance of any services by him as such water commissioner to be performed in Clear Creek county. It was further admitted that no adjudication had ever been had to establish the priority of rights for the ditches taking water from Bear creek in Clear Creek county.
Under this state of the record we think the trial court correct in holding that Clear Creek county was liable for its pro rata (one0third) of the services rendered by the water commissioner in water district No. 9.
The fact that none of the services performed were rendered in the county of Clear Creek is no defense to the action, and is fully answered in the case of Board of County Commissioners of Park County v. Locke, 2 Colo.App. 508, 31 P. 351.
The fact that decreed priorities had not yet been established for these ditches is likewise no defense to this action. This question was thoroughly considered in the...
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