Cascade Ice Co. v. Austin Bluff Land & Water Co.

• Decision Date: 07 December 1896
• Citation: 47 P. 268,23 Colo. 292
• Parties: CASCADE ICE CO. v. AUSTIN BLUFF LAND & WATER CO.
• Court: Colorado Supreme Court

47 P. 268

23 Colo. 292

CASCADE ICE CO. v. AUSTIN BLUFF LAND & WATER CO.

Supreme Court of Colorado

December 7, 1896

Error to district court, El Paso county.

Action by the Cascade Ice Company against the Austin Bluff Land &amp Water Company to enjoin the diversion of the water of a stream. There was a judgment in favor of defendant and plaintiff brings error. Affirmed.

T. A McMorris, for plaintiff in error.

Colburn & Dudley, for defendant in error.

GODDARD C.J.

On the 31st day of December, 1890, the Cascade Ice Company instituted this action against the Austin Bluff Land & Water Company to enjoin the diversion of certain water from West Mounment creek, in the county of El Paso, state of Colorado and, for cause of action, alleged that it was an incorporated company, duly organized and existing under and by virtue of the laws of the state of Colorado, and was engaged in the business of cutting, storing, and dealing in ice; that it was the owner of two reservoirs, constructed and used for the purpose of receiving and holding water for the formation of ice; that, for the purpose of supplying the reservoirs with water, it had appropriated the water of West Monument creek and had diverted and used said water for the purposes aforesaid, by means of ditches and seepage from the stream; that the defendant company, by means of a pipe line constructed after plaintiff's appropriation of the water, wrongfully diverted all the water of said creek and totally deprived plaintiff of all the water flowing therein, as well as the seepage water theretofore appropriated by it. The defendant answered, denying all the allegations of the complaint, except the averments of incorporation of the respective companies, and, for a further defense, averred that long before the construction of the reservoirs and feeders mentioned in the complaint, and before the plaintiff performed any physical act towards diverting and using any water therefrom, several ditches had been constructed, through which all the water flowing in West Monument creek had been appropriated and applied to beneficial uses; that, through divers conveyances from the original appropriators, the defendant became the owner of the ditches and said water rights, and entitled to the use and enjoyment of all the water in the creek, except when the flow exceeded 22.18 cubic feet per second of time; that, after it became such owner, the defendant constructed a pipe line heading in said creek, for the purpose of conveying the water to which it was entitled by virtue of said water rights, and applying the same to irrigation and other beneficial uses; and that at no time had it conveyed through its pipe line more water than it was lawfully entitled to. The plaintiff, in its replication, denied that the purpose and use of the water, as set out in the answer, was for a beneficial and useful or lawful purpose, but for purposes of speculation only, and averred that, by reason of...