O'Brien v. King

• Decision Date: 02 December 1907
• Citation: 92 P. 945,41 Colo. 487
• Parties: O'BRIEN v. KING.
• Court: Colorado Supreme Court

92 P. 945

41 Colo. 487

O'BRIEN v. KING.

Supreme Court of Colorado

December 2, 1907

Appeal from District Court, Douglas County; Louis W. Cunningham Judge.

Action by Thomas J. King against Pleasant W. O'Brien. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Rogers, Shafroth & Gregg, for appellant.

Wm. H Davis, George F. Dunklee, and O. E. Jackson, for appellee.

GODDARD J.

This is a controversy over the right to the use of water from East Plum creek. The facts presented by the record proper are, in substance, as follows: On December 10, 1883, the appellant defendant below, was awarded a decree as owner of a ditch named the 'Castle Rock Ditch,' taking its supply of water from East Plum creek for two cubic feet of water per second of time, to be used for the irrigation of lands and for domestic purposes. The appropriation for which this decree was awarded dates from April 1, 1880. In the month of November, 1899, the appellant procured a decree permitting him to change his headgate and point of diversion. Such point of diversion, as a matter of fact, was changed in the month of August, 1893. On March 3, 1890, the appellee, plaintiff below, obtained a decree for the use of so much water through a ditch, named the 'King Ditch,' 'as will flow therein on grade of 1/4 inch to the rod with width on bottom of 20 inches, width on top of 2 feet, depth of water flow 6 inches, computed at, * * * the appropriation of which water * * * dates from February 23 1888.' This action is brought to restrain appellant from diverting any water from East Plum creek by virtue of the original decree to Castle Rock ditch, or that his right to divert water there-through in virtue of such decree shall be limited to the amount of water he has actually applied to a beneficial use prior to February 23, 1888, when the right of appellee to divert the waters of East Plum creek through the King ditch became vested.

The theory upon which the complaint is founded, as stated by counsel for appellee, is: (1) That appellant never perfected his appropriation to a greater extent than sufficient to irrigate two acres of land; (2) an abandonment of his appropriation subsequent to the original decree. The facts relied on by appellee to support his first contention are, in substance, that, notwithstanding the appellant was granted a decree by which he was entitled to the use of two cubic feet of water per second of time, through the Castle Rock ditch, that his appropriation, when made, was intended for the sole purpose of irrigating two acres of land for garden purposes, and at the time of his procuring the decree be owned but a small amount of land which could have been covered by said ditch, and that he had used the same to irrigate not exceeding one-fourth of an acre in extent. Over objection, the court below allowed evidence to be introduced in support of these averments. In this we think the court erred. These matters were not open to inquiry in this case. It has been frequently held that the volume of the priority awarded a ditch in the adjudication proceeding is res...