City and County of Denver v. Walker

• Decision Date: 01 March 1909
• Citation: 45 Colo. 387,101 P. 348
• Parties: CITY AND COUNTY OF DENVER et al. v. WALKER et al.
• Court: Colorado Supreme Court

101 P. 348

45 Colo. 387

CITY AND COUNTY OF DENVER et al. v. WALKER et al.

Supreme Court of Colorado

March 1, 1909

Error to District Court, City and County of Denver; Frank T Johnson, Judge.

Action by Pennina W. Walker and others against the City and County of Denver and others. From a decree for plaintiffs defendants bring error. Reversed and remanded.

Henry A. Lindsley, City Atty., H. L. Ritter, and Allen & Webster, for plaintiffs in error.

J Warner Mills, for defendants in error.

CAMPBELL J.

Plaintiffs who are owners of two adjoining five-acre tracts of land situate in the city of Denver, designated in the record as lots 5 and 6, and who also claim to be owners, through their grantors, of an independent appropriation, of the right to the use of water for irrigating these tracts and to utilize the same through a ditch belonging to the defendant city, brought this action against defendants, the city council of Denver and its board of park commissioners, who have immediate supervision and control of the city ditch, to restrain defendants from doing certain acts which it is alleged they are about to do, or by a mandatory writ compel them to make such changes in their plans already carried out, which, unless the appropriate relief is given, will result in depriving plaintiffs of their alleged water right. The defendants, answering, deny that plaintiffs are appropriators of any water through the city ditch, and allege that defendants' threatened or completed acts in relation to the city ditch, which plaintiffs charge are wrongful, are only such acts as they, owners and controllers of the same, have a perfect legal right to perform. Upon the final hearing the court found the issues for plaintiffs, and the decree went accordingly, from which defendants are here with this writ of error.

Neither the complaint nor the evidence is definite or precise as to the alleged rights of plaintiffs. Assuming, however, as do the attorneys for the city, that the complaint alleges an appropriation of water, and that, as against a general demurrer, it is sufficient, we are entirely clear that the evidence does not sustain its allegations. The complaint alleges that plaintiffs' grantors about the year 1867 diverted water from the South Platte river, and by means of what is now the city ditch carried the same to, and used it upon, the premises in controversy, and ever since that time plaintiffs and their grantors have continued so to use water upon the lands for raising agricultural crops. The evidence by which plaintiffs sought to establish their case does not have the probative effect claimed for it; indeed, it falls far short of it. There is not a particle of evidence that plaintiffs' grantors ever made or acquired an appropriation of water from the South Platte river by any means. Perhaps it inferentially appears, or is virtually admitted, that, by means of the ditch in question, an appropriation of water was made by the grantor of the city which right at least after its acquisition by the city has been applied by the municipal authorities in irrigating lawns, gardens, trees, and parks of the city and of its inhabitants under appropriate municipal regulations not shown by the evidence. The main city ditch crossed the corner of one of these lots of plaintiffs. It may be that from water carried therein plaintiffs' grantors, through some arrangement with its then owner, irrigated their lands, but as to what that arrangement, if any, was the record is silent. Some light, however, is thrown upon the custom or regulation of delivering water after the city acquired the ditch by the testimony of Mr. Dailey, one of plaintiffs' witnesses. He says that about 1870 he, and possibly some other residents of the city, constructed, with the consent of the city authorities, a lateral from the main ditch across the tracts of land now owned by plaintiffs, through which water was used for irrigating trees of the builders lying beyond plaintiffs' premises. Dailey testifies that this, so far as concerns the taking of water from the ditch, was with permission of the city council, and not as of right--merely such privilege or use as citizens generally were permitted to make of the water therefrom, and apparently plaintiffs' grantors made no objection to the lateral being built on their land. After plaintiffs acquired their interests, it seems that the city authorities desired to build a lateral from the main ditch across their tracts, or to enlarge the lateral already there, for the purpose of conveying water therethrough for use by its inhabitants in certain portions of West Denver, and that the mayor and the city council or a...