Bright v. Farmers' Highline Canal & Reservoir Co.

• Citation: 3 Colo.App. 170,32 P. 433
• Court: Colorado Court of Appeals
• Decision Date: 13 February 1893
• Parties: BRIGHT v. FARMERS' HIGHLINE CANAL & RESERVOIR CO., (HACKBERRY TREE, LAND & STOCK CO., Intervener.)

32 P. 433

3 Colo.App. 170

BRIGHT v. FARMERS' HIGHLINE CANAL & RESERVOIR CO., (HACKBERRY TREE, LAND & STOCK CO., Intervener.)

Court of Appeals of Colorado

February 13, 1893

Appeal from district court, Jefferson county.

Mandamus by Oliver L. Bright against the Farmers' Highline Canal &amp Reservoir Company, the Hackberry Tree, Land & Stock Company intervener, to compel defendant to sell plaintiff 70 inches of water. From a judgment denying plaintiff's petition and allowing the intervener 30 inches of plaintiff's 70 inches of water, plaintiff appeals. Modified.

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

An application for a mandamus, brought by the appellant as petitioner against the Farmers' Highline Canal & Reservoir Company as respondent to compel it to sell and deliver to the petitioner 70 inches of water from the ditch, to be by him used in irrigating an 80-acre tract of land occupied as a farm. It appears that petitioner commenced to occupy the land in 1872. In 1873 he purchased from the original company owning and operating the same ditch 75 inches of water, and annually purchased the same quantity until 1882, when he voluntarily reduced the quantity to 70 inches, which he continued to purchase annually until 1889. From 1885 to 1889, inclusive, he was farming upon a portion of section 36, school land, which he had bought. This land as well as the home 80, was irrigated by the same water,--70 inches,--part being used on each tract. Some time in 1888 petitioner advertised the land on the school section for sale, and in such advertisement occurs the following: "Two thirds under ditch, water right, besides living water." The only water right was that part of the 70 inches used by the petitioner. An agent applied to the petitioner to get the sale of the land, and was informed by the petitioner that 30 of the 70 inches which he purchased, and to which he was entitled from the ditch company, went with the land. The negotiations resulted in a sale of the land. The Hackberry Tree, Land & Stock Company became the owner from the purchaser. No water, or right to purchase water, was conveyed, the right of the purchaser company resting upon the application of the water by the grantor for five years to the land sold, and his parol statements in the advertisement, and to the agent who made the sale, that 30 inches of water went with it. In the ensuing spring petitioner demanded from the respondent the entire 70 inches of water for use upon his original 80 acres, and tendered payment for it. The Hackberry Company demanded the 30 inches for use upon the land purchased. Appellant (petitioner) filed his suit for a mandamus to compel the sale to him of the entire quantity, relying upon his former use, and alleged prescriptive right to the same. The respondent answered, denying some of the allegations in the petition, setting up the facts above stated, and the claim and demand of both parties to the water in controversy, and avowing their willingness to deliver the water to either when the legal right should be established. It denied the allegation in the petition that the entire 70 inches of water was necessary to irrigate the 80 acres of the petitioner, and alleged that 40 inches was all that was necessary to properly irrigate it. The respondent further, by its answer, or in the nature of a cross complaint, asked "that the rights and priorities of the said petitioner and the said company in and to the said thirty inches of water, being a part of the seventy inches of water mentioned in the petition therein, may be heard, adjudged, and determined, and that the said the Hackberry Tree, Land & Stock Company may be adjudged to be entitled to the same, and for such other further and different relief as may be just and proper, and for its costs." On the 11th of November, 1891, the Hackberry Company applied to be made a party, and by the court was allowed to intervene and become a defendant. It filed an answer and cross complaint in its own behalf, nearly identical with that of the respondent. The petitioner replied to the answers and cross complaints of the respective defendants. A trial was had to the court. A large amount of testimony was heard. The finding and judgment of the court was as follows: "Doth find for the intervening defendant as against the plaintiff, and doth find that the said the Hackberry Tree, Land & Stock Company, intervening defendant, is entitled to receive from the defendant the Farmers' Highline Canal & Reservoir Company, as against the plaintiff, the thirty inches of water for irrigation purposes, being a part of the seventy inches of water for which this action is brought, and which is claimed by the plaintiff herein; and doth further find that the right to the same was sold and conveyed by said plaintiff to the intervening defendant; and that by his conduct the plaintiff is estopped from claiming the same as against the intervening defendant; and that the plaintiff is not entitled to the same, or to demand or receive the same from the defendant; and doth order judgment to be entered accordingly. Wherefore it is ordered, adjudged, and decreed, and the court doth order, adjudge, and decree, that the plaintiff's petition herein be denied, and that as to the plaintiff the said defendant go hence without day, and do have and recover of and from the said plaintiff its costs in its behalf laid out and expended, to be taxed, and do have execution therefor; to which finding and decision the plaintiff, by his counsel, duly excepted. And it is further ordered, adjudged, and decreed, and the court doth further order, adjudge, and decree, that the prayer of the intervening defendant be granted; and that the said intervening defendant is entitled, as against the plaintiff herein, to the right to ask, demand, and receive of and from the defendant herein the thirty inches of water for irrigating purposes, and being a part of the seventy inches of water for which this action was brought; and the said plaintiff is not entitled to receive said thirty inches of water, or any part thereof; and that...