Bushnell v. Larimer & Weld Irr. Co.

• Citation: 56 Colo. 92,136 P. 1017
• Parties: BUSHNELL v. LARIMER & WELD IRR. CO.
• Decision Date: 01 December 1913
• Court: Supreme Court of Colorado

136 P. 1017

56 Colo. 92

BUSHNELL v. LARIMER & WELD IRR. CO.

Supreme Court of Colorado

December 1, 1913

Error to District Court, Larimer County; Jas. E. Garrigues, Judge.

Suit by the Larimer & Weld Irrigation Company against E. H. Bushnell and others. Judgment for plaintiff, and defendant named brings error. Reversed.

Fancher Sarchet, of Ft. Collins, for plaintiff in error.

Rhodes & Farnworth, of Ft. Collins, for defendant in error.

SCOTT J.

This suit was brought by the Larimer & Weld Irrigation Company against E. H. Bushnell, plaintiff in error, and other defendants.

It was alleged in the complaint in substance: That the plaintiff is the owner of a line of ditch known as the Larimer & Weld Irrigation Company's canal, and from which it supplies water to irrigate many thousands of acres of land to various consumers, including the defendant, each of said defendants having contracts to which the plaintiff was a party, giving them right to have and receive from the plaintiff water sufficient to irrigate their lands mentioned and described in the several contracts. That the plaintiff has a superintendent in charge of this canal, whose duties are to regulate and operate the canal and make distribution of water to the parties entitled thereto. That, in order that the superintendent of the plaintiff's canal may properly run and operate the same and make proper distribution of the water therefrom, it is necessary that he should have charge and control of the headgates upon the canal used for the distribution of water. It is then charged that the defendants claim and undertake to exercise the right or privilege of control and operation of the various headgates belonging to the plaintiffs and to raise and lower such headgates and take water from the said canal without any supervision by the plaintiff's superintendent, and refuse to allow the plaintiff to have any voice or say as to any water so needed by said defendants, and as to when it is proper that said headgates should be open or closed, or as to what quantity of water said defendants are to receive from the canal through said headgates, and that defendants have opened said headgates without authority from the said superintendent and have assumed to take from plaintiff's superintendent the right to conduct and operate said ditch or control the same, or the distribution of water therefrom, in so far as the headgates of the defendants are concerned.

The complaint prays for an injunction to prevent these acts and to compel the defendants to receive the water to which they are entitled by the direction and order of the superintendent of the plaintiff. To this complaint the plaintiff in error defendant Bushnell, filed his separate answer, in which he pleads that the matters and things involved in the complaint are as to him res adjudicata. It is alleged in this answer that an adjudication of the matters complained of was had in the case of the said defendant Bushnell against the Larimer &amp Weld Irrigation Company, plaintiff in this case, instituted in the district court of Larimer county on the 4th day of January, 1901. The pleadings and decree in that case are fully set out in Bushnell's answer in this case. From these it appears that there were certain original owners of appropriations and priorities of the irrigation ditch, then known as 'irrigation ditch No. 10,' taking its supply of water from the Cache la Poudre river, and that Benjamin Eaton, the grantor of the Larimer & Weld Irrigation Company entered into a contract with each of the said owners of priorities and consumers of water, among which was Franklin W. Garrett, from whom Bushnell deraigned his title. The contract between Eaton and Garrett was fully set out in the complaint in the case of Bushnell v. Irrigation Co., as follows:

'Know all men by these presents that I, Franklin W. Garrett, of the county of Larimer, state of Colorado, for the consideration hereinafter expressed to be performed by Benjamin H. Eaton, his heirs and assigns, do hereby sell, give, grant and release unto the said Benjamin H. Eaton, his heirs and assigns, all the right, title and interest which I have in and to any shares or privileges or any surplus credit for and on account of any work or labor performed on account of the same in the irrigation ditch known as Irrigation Ditch Company Number Ten (10), said ditch being located on the north side of the Cache la Poudre river in the county of Larimer, state of Colorado. Witness my hand and seal this 24th day of April, A. D. 1878.

'And I, the said Benjamin H. Eaton, do hereby agree as a consideration for said grant and sale above made that the said Franklin W. Garrett, his heirs and assigns, shall have the right and privilege and the said right and privilege is hereby granted unto the said Franklin W. Garrett, his heirs and assigns, to take from said irrigation ditch number ten (10), at the place where the lower portion of said ditch as now constructed intersects with a new survey made by the said Benjamin H. Eaton, a sufficient quantity of water to irrigate one hundred and sixty (160) acres of land and no more. The right to irrigate the said one hundred and sixty (160) acres of land from said ditch shall be perpetual and without expense to the said Franklin W. Garrett, in maintaining said ditch. And it is further agreed by the said Benjamin H. Eaton that in case he should fail to keep the said ditch in repair so that there should not be sufficient supply of water in said ditch to irrigate said one hundred and sixty (160) acres, then the said Benjamin H. Eaton shall forfeit his right by virtue of such sale above made after due notice of such failure and neglect on his part and further neglect and failure after said notice on his part to perform his agreements as aforesaid.'

It was further alleged in that complaint that after the execution of this contract the said Eaton acquired the right of way and the appropriation and priorities and right to the use of waters of said irrigation ditch No. 10 for the purpose of enlarging and extending the same. Also that on the 24th day of April, 1878, the said Garrett was the owner of the N. 1/2 of S.E. 1/4 of section 8, township 7, range 68 west, and other lands adjacent thereto. The land thus described is the land now owned by Bushnell and involved in this case. It was further alleged that, pursuant to the terms of the said contract, the said Garrett diverted from the said ditch the continuous use, for irrigation and domestic purpose, of sufficient water for 160 acres of said land, including the said described tract; that afterwards Eaton sold and conveyed to the defendant company the said irrigation ditch and the said appropriations of water so acquired by him; that Garrett conveyed the said tract of land involved in this suit, together with all rights to the use of water contained in the contract with Eaton, to Henry T. Miller; and that during the month of November, 1894, Miller conveyed the land, with all of the said rights to water and use thereof as provided in said contract, to the then plaintiff Bushnell, defendant in this case, who has ever since been the holder and owner of the same.

It is then set forth in the complaint in that case that Garrett Miller, and plaintiff during all the times mentioned, and while each is and was the owner of the water rights in question, enjoyed an uninterrupted use of water under the contract with Eaton for irrigation and domestic purposes, and had the sole and exclusive control of the said headgates of that certain lateral ditch extending from ditch No. 10 and known as the Larimer and Weld canal, to the land aforesaid, which said lateral ditch was and is used for the purpose of conducting the said water to the said premises; that Garrett, Miller, and the plaintiff in succession continuously used the said water upon the said lands for irrigation and domestic purposes and enjoyed...