Crippen v. Comstock

• Decision Date: 09 December 1901
• Citation: 17 Colo.App. 89,66 P. 1074
• Parties: CRIPPEN v. COMSTOCK et al.
• Court: Colorado Court of Appeals

66 P. 1074

17 Colo.App. 89

CRIPPEN v. COMSTOCK et al.

Court of Appeals of Colorado

December 9, 1901

Error to district court, Chaffee county.

Action by J.J. Crippen, trustee, against A. Comstock and others. From a judgment for defendants, plaintiff brings error. Affirmed.

Hodges, Wilson & Hodges, for plaintiff in error.

G.K Hartenstein, for defendants in error.

WILSON P.J.

This controversy involves the ownership of an undivided one-eighth interest in what is known as the "Bowen Ditch," taking water from Chalk creek, in Chaffee county, for the purpose of irrigation, and of the right to the water flowing in said ditch to the extent of one-eighth of the whole. The material facts upon which the issues turn are that on August 8, 1888, George L. Smith made application in writing to Crippen, Lawrence & Co., for a loan of $1,000 to secure the payment of which he proposed to execute a deed of trust upon 160 acres of land owned by him. In this formal application occurred, inter alia, the following: "Q. 13. From what canal is the land irrigated? A. Private canal out of Brown's creek; also one-eighth interest in large ditch from Chalk creek" "Q. 16. Will you assign above water rights as security for this loan? A. Yes." The loan was made, and on August 20th following Smith executed a deed of trust to secure its payment. In the deed of trust after the usual conveyance clause and a description of the land it was recited: "Together with all ditches and water rights thereunto belonging or in any wise appertaining; to have and to hold the same, together with all and singular the tenements, hereditaments, *** including all water rights and privileges, ditch or ditches, *** or in case of waste, or nonpayment of taxes, water dues, or assessments," etc. The loan was made for a period of five years. On October 12, 1888, Smith and seven others prepared and filed in the office of the county clerk of Chaffee county, as required by law, a statement of their intention to take out an irrigating ditch, to be known as the "Bowen Ditch," from Chalk creek, and also a map showing the line of the ditch, capacity, etc. In this verified statement it was recited that work was commenced on the ditch on September 24, 1888. On July 22, 1890, Smith executed a deed of trust upon certain other lands adjoining, however, those described in the first-mentioned deed of trust, to secure the payment of a note given by him to the Colorado Loan & Mortgage Company. In this deed, after the conveying clause and a description of the land to be conveyed, it was recited: "Together with a one-eighth interest in Bowen ditch and all of Brown's creek ditches, including with said land all ditch and water rights thereunto appertaining or in any way belonging, or which are held or controlled by the said party of the first part at this date, or which may be acquired by said first party as to said land during the existence of this trust deed." A number of other conveyances were offered and received in evidence, and are preserved as exhibits in the record, but a consideration of these two only is necessary for the determination of the cause. The plaintiff, who is here plaintiff in error, claims title under and through the first deed of trust; the defendants under the second. The relief prayed was that the defendants be adjudged and decreed to have no right, title, or interest in or to any part of the Bowen ditch, or use of any part of the water decreed to or flowing in the same, adverse to that of this plaintiff, and that they be forever barred and estopped from making or asserting any claim thereto adverse or paramount to that of any of the other parties to the action, such other parties being the owners of the other interests in the ditch. The defendants answered, denying the asserted claims of plaintiff in all respects. They also alleged ownership of the ditch interest in themselves, and prayed judgment that they be adjudged to be such owners. The issues were found in favor of the defendants, and judgment rendered accordingly.

The complaint was framed on the theory that Smith, through whom both parties claim, held the ditch interest and water right in controversy as trustee for the grantors of the plaintiff but present counsel have practically abandoned that theory, and rely for recovery upon the contention that the ditch and water right were appurtenant to the land conveyed in the first deed of trust, and as such were embraced in such deed of trust, and passed to the purchaser and his successors upon foreclosure. This point only we will consider. That the interest in the ditch itself was not conveyed in any manner by the first deed of trust is apparent, because it is not specifically mentioned, and for the additional cogent reason that it was not in existence at that time; the ditch not even having been commenced. The...