Burnham v. Freeman

• Decision Date: 30 November 1888
• Citation: 11 Colo. 601,19 P. 761
• Parties: BURNHAN et al. v. FREEMAN.
• Court: Colorado Supreme Court

19 P. 761

11 Colo. 601

BURNHAN et al. v. FREEMAN.

Supreme Court of Colorado

November 30, 1888

Commissioners' decision. Appeal from district court, Larimer county.

Susan Freeman, the appellee, was plaintiff, and George C. Burnham and Horace and Charles Emerson, appellants, were defendants in the court below. The plaintiff, claiming a third interest in an irrigating ditch formerly known as the 'Gilchrist Baker, and Emerson ditch,' and that defendants had disturbed her use thereof, brought this action to restrain future disturbance by them, and to recover damages for past injuries. This ditch received its water from Lone Pine creek in Larimer county, and was constructed in 1872 by the two Emersons, who are defendants, a person by the name of Gilchrist, and one E. L. Baker. These parties had three claims upon the public domain on said creek, which were contiguous,--the Gilchrist claim being the uppermost Baker's the next, and the Emerson claim the lowermost of the three. The ditch was built designedly to irrigate such portions of these claims as lay under the same. It was taken out above the Gilchrist claim, and ran across it and the Baker claim to the Emerson claim. Water was used from said ditch in 1872 by Gilchrist in irrigating a part of his claim and was also used that year by the Emersons in irrigating a part of their claim, but shortly after the building of the ditch Baker abandoned his claim without having used any water thereon from said ditch for any purpose, and none was used upon any part of the land included in the Baker claim until the year 1878, and not then by Baker, or for him, but by one Freeman, the husband of the plaintiff, who had settled upon the Baker claim in October, 1877. Freeman continued to reside upon this land with his family, and continued the use of water therein from said ditch each year, until some time in 1881, when he left the place, deserting it and his family. The plaintiff remained upon the land, and has since acquired title thereto from the United States government, and she used water from said ditch, to irrigate a portion of her land, in 1882, and claims to have done work upon the ditch that year in the way of repair. It is conceded that her husband did some work at repairing the said ditch while he lived upon this land, but the defendants claim that he did so, not as a party interested in the ditch, but solely in consideration for the temporary use of water from said ditch, and that he never became the owner of, or acquired or contracted for, an interest in said ditch; and that the plaintiff had no interest therein at the time of bringing this action, or at any time, but that what water she used therefrom, in 1882, was by the sufference or permission of the defendants. The defendant Burnham purchased the improvements upon the Gilchrist claim, and the Gilchrist interest in said ditch, in 1876, and during that year he and the Emersons repaired the ditch at considerable expense, and divided and used the water thereof equally between them in irrigating their respective claims, and the crops grown thereon. A jury was impaneled and sworn to try the issues, and under an order of the court, the parties consenting thereto, said jury was required to return a finding upon the following questions: '(1) Was the plaintiff at the time of filing her complaint herein entitled to use water from the irrigating ditch mentioned in her complaint, to irrigate her lands and crops mentioned in said complaint? (2) Did the defendants, or either of them, wrongfully prevent or interfere with plaintiff's right to the use of water from the irrigating ditch mentioned in said complaint, to the damage of the growing crops of plaintiff mentioned in said complaint, and, if the jury find affirmatively upon both of these issues, what amount of damages has the plaintiff sustained in consequence thereof?' The court instructed the jury, at the close of the testimony, to return a verdict in favor of the plaintiff upon both questions thus submitted, and to insert such sum for damages as they might find from the evidence the plaintiff had sustained. A verdict was returned accordingly, and for $233.70 damages in favor of the plaintiff. Upon this verdict a judgment was rendered, and a perpetual injunction granted, restraining the defendants from interfering with or obstructing the rights of the plaintiff in the premises, as found in and by the decree of the court. This action was brought in June, 1883, and a temporary injunction was then granted. It was tried in March, 1884. The decree finds, substantially, that the ditch was constructed expressly for the benefit of the lands...