Central Trust Co. v. Culver
| Decision Date | 09 December 1912 |
| Citation | 23 Colo.App. 317,129 P. 253 |
| Parties | CENTRAL TRUST CO. v. CULVER. |
| Court | Colorado Court of Appeals |
Appeal from District Court, Boulder County; Harry P. Gamble, Judge.
Action by Elvira E. Culver against the Central Trust Company. Judgment for plaintiff, and defendant appeals. Affirmed.
John H. Denison, of Denver, for appellant.
John A Rush, of Denver, for appellee.
This action was begun by appellee (plaintiff below) against appellant (defendant) to establish title to certain water rights and ditches claimed by plaintiff, and to enjoin defendant from interfering with plaintiff's use thereof. Defendant's answer denies plaintiff's claim, and alleges a prior right to and ownership in the water rights and ditches in question. The case rests largely upon facts which were sharply contested at the trial. Whichever way the court may have found the facts there appears to be ample evidence to have supported the findings. The court found in favor of plaintiff and entered a decree accordingly; and unless the record discloses some prejudicial error in the proceedings below we are bound thereby, according to the well-settled practice of this court that a judgment will not be disturbed, which is founded on controverted facts, if there be sufficient evidence to support it.
Appellant's entire title, if it has any, to the water rights and ditches in controversy depends upon the title previously held by W.R Blore and wife. What is known as the W.R. Blore No. 2 ditch, and its alleged abandonment, appears to be the storm center of this suit. The court found, and the evidence tended to show, (1) that no water had ever passed through Blore No. 2 ditch after 1867; (2) that the water rights decreed to Blore No. 2 ditch in 1883, as well as the ditch itself, were owned and used by Blore at the time that decree was rendered, but had been wholly lost and abandoned since that time, and that neither plaintiff nor defendant had any right or interest therein; (3) that plaintiff had established her ownership in the Culver and Mahoney ditch, which had a priority of April 15, 1867, and was the oldest priority on the Little Thompson creek in water district No. 4, and had at all times applied the waters decreed thereto to irrigate her lands, and to other beneficial uses; (4) that defendant had no right or interest in the said Culver and Mahoney ditch; (5) and that no change in point of diversion of the water decreed to Blore No. 2 ditch had ever been made, and neither defendant nor its predecessor or representatives had ever used the waters decreed thereto in or through any other ditch or ditches. The court having so found, a decree for plaintiff was inevitable. All the findings of facts by the court were based upon conflicting evidence. With courteous persistence counsel for appellant ably and forcefully presses his contention that the record fails to disclose sufficient evidence to support the decree. From a painstaking examination of the record, we are unable to reach that conclusion. Even if Carey Culver's testimony were eliminated from the record, we still think there would remain sufficient evidence to support the findings of the trial court upon the disputed facts.
The real crux of this contest appears to be the issue of abandonment as to Blore No. 2 ditch. Considerable evidence was adduced on this issue. It needs no citation of authority to support the statement that abandonment is a question of fact to be determined by the trial judge or jury, as the case may be, and to constitute abandonment both act and intention must be shown. Much evidence was also received relative to other ditches and water rights aside from the Blore No. 2 ditch, namely, "Culver and Mahoney" ditch, Blore No. 1 ditch, Supply ditch, and Supply Lateral ditch, all of which were subsequent priorities to Blore No. 2 ditch; likewise Blore No. 1 ditch, Supply ditch, and Supply Lateral ditch, were subsequent priorities to "Culver and Mahoney" ditch. Defendant does not contend that any water was conveyed through Blore No. 2 ditch after 1867, but does strenuously urge that its grantors exercised and used the water rights granted to that ditch by conveying the water through Blore No. 1, Supply, and Supply Lateral ditches, and by so doing clearly negatived any intention on its part to abandon the water and water rights granted thereto. The finding of the court, however, was against it on this contention, as above shown.
We agree with defendant that the rule is well settled that on the issue of abandonment the burden of proving the same is on the one asserting it. Putnam v. Curtis, 7 Colo.App. 437, 43 P. 1056. The law indulges in no presumption that a valuable right shown to have once existed has been abandoned by its possessor. It is not the question here whether or not we think, upon reading the evidence, the trial court should have found the issue of abandonment in favor of appellant, but rather, Does the record show sufficient evidence to support the court's findings upon that issue? We have decided it does.
Appellant further complains that the admission by the court, over its objection, of certain evidence relative to acts, sayings, and doings of appellee and her predecessors, concerning abandonment of Blore No. 2 ditch, etc., prior to the decree of 1883, and the admission in evidence of certain deeds offered by plaintiff, was prejudicial error, because the decree conclusively established nonabandonment of the ditch or water rights by defendant at the time it was rendered. It may be conceded that the decree of 1883 is conclusive as to the amount of water the several ditches mentioned were entitled to and the date of their respective priorities as fixed by the decree, and that at the time it was rendered there was no abandonment of the water rights decreed to any of such ditches. However, the Supreme Court has held, in Alamosa Creek Canal Co. v. Nelson, 42 Colo. 140, 93 P. 1112, that, under the issue of abandonment, if there be sufficient legal evidence tending to establish nonuser subsequent to the decree, then evidence of nonuser and similar acts of the owner prior to the decree is admissible for the purpose of showing his intent thereafter in not using what was awarded to him by the decree.
The evidence objected to was admissible for the purpose of showing intent only, and, the case being tried to the court without a jury, it will be presumed that the court considered it only for the purpose for which it was admissible; and, further, the deeds from Blore and his grantees to plaintiff, admitted against defendant's objections, were also properly admitted in evidence under plaintiff's claim that the same conveyed to him the water rights in issue, and that he was the owner thereof, and that such ownership could not be determined by the decree of 1883. In the instant case the court found "that at the time of the granting of the water decrees, in 1883, W.R. Blore was the owner of the ditch known as the W.R. Blore ditch No. 2, and entitled to the water thereto decreed." But it also found "that ever since the granting of the decree, in the year 1883, there has been no water run through W.R. Blore ditch No. 2, nor has the point of diversion been changed, nor the water at that time decreed been used through any other ditch by said Blore, or any one for him, or claiming under or through him; that said W.R. Blore ditch and the water thereto decreed has been wholly abandoned; that the plaintiff, Carey Culver, or Elvira Culver, his widow, or the defendant, has no right to the W.R. Blore ditch No. 2, or the water decreed thereto."
In its reply brief appellant says: "We do not claim that the decree of 1883 determined that Blore was the owner of the right in question, but we do claim that the evidence did, and, moreover, that that decree did, determine that the water right in question was then alive, and that therefore all evidence of abandonment before 1883 was erroneously admitted." The trial court did, however, in its decree, find that the decree of 1883 found that Blore was the owner of the ditch, in these words: "And in said decree [1883] it was stated also that at the time of the said adjudication the said Blore was the owner of said ditch and entitled to the water thereof. ***" If this is at all material in this case, then that part of the decree of 1883 just quoted is void to that extent, as it is the settled law in this state that in statutory proceedings for the adjudication of priorities and appropriations of water the court has no jurisdiction to determine ownership or property rights in the ditches, nor to determine who has the right to use the water awarded to the various ditches, canals, etc.: in other words, the district court can go no further than to determine the priorities of the several ditches and amount of water awarded thereto. Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 P. 854; Hallet v. Carpenter, 37 Colo. 30, 86 P. 317; Evans v. Swan, 38 Colo. 92, 88 P. 149; O'Neil v. Ft. Lyon Canal Co., 39 Colo. 487, 90 P. 849; Woods v. Sargent, 43 Colo. 268, 95 P. 932; Park v. Park, 45 Colo. 347, 101 P. 403; Rollins v. Fearnley, 45 Colo. 319, 101 P. 345; Putnam v. Curtis, 7 Colo.App. 437, 43 P. 1056.
Another question raised by appellant is that of estoppel by admissions in judicio; the contention being (1) that in a certain suit brought in 1893 by plaintiff's grantor against Laws, a water commissioner, his sworn complaint asserted the ownership of Blore No. 2 ditch to be in Blore and that Blore had used the water decreed thereto through plaintiff's ditches (this suit was not determined, but was dismissed, by stipulation, on October 26, 1895); (2) that Culver appeared as a witness in the proceedings which resulted in the decree of 1883, and gave...
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