Croke v. American Nat. Bank of Denver

• Decision Date: 08 September 1902
• Citation: 70 P. 229,18 Colo.App. 3
• Parties: CROKE v. AMERICAN NAT. BANK OF DENVER. [1]
• Court: Colorado Court of Appeals

70 P. 229

18 Colo.App. 3

CROKE v. AMERICAN NAT. BANK OF DENVER. ^[1]

Court of Appeals of Colorado

September 8, 1902

Appeal from district court, Arapahoe county.

Suit by the American National Bank of Denver against Edward J. Croke. From a decree for complainant, defendant appeals. Affirmed.

M.J. Bartley, for appellant.

T.J O'Donnell, for appellee.

GUNTER J.

T.B Croke, owning a reservoir on section 9, desired to irrigate therefrom 15 acres in section 15. Barker, owning a reservoir on section 10, wanted to irrigate therefrom about 40 acres in the S.W. 1/4 of section 10. A ditch located on the S.W. 1/4 of section 10, connecting the reservoir on section 9 with the 15 acres in section 15, would convey the water from both reservoirs to the parcels to be irrigated. Barker, owning the S.W. 1/4 of section 10, orally agreed that, if Croke would build the ditch, he would furnish the land, and that the ditch should be used by them jointly. In about 1888, pursuant to this understanding, the ditch was constructed by Croke and used as intended by the original parties until 1894, and by their successors in interest until 1897. The rights of T.B. Croke are held by the present plaintiff, the rights of Barker by present defendant. In 1897 the defendant refused to allow plaintiff to use the ditch for the conveyance of water in irrigating the 15 acres in section 15. This action was brought to enjoin defendant from interfering with plaintiff's alleged easement. Plaintiff had judgment, and defendant appealed.

1. The complaint stated facts which, if established, entitled plaintiff to a decree enjoining defendant from interfering with the right of plaintiff to flow through the ditch in question sufficient water to irrigate 15 acres in section 15. There was a direct conflict on the material allegations of the complaint between the testimony of Wright Barker, the main witness for plaintiff, and T.B. Croke, the leading witness for the defendant. The trial court gave credit to the testimony of the former, and found the material allegations of the complaint established. These findings we accept. It is objected that the decree departs the findings. The court finds plaintiff entitled to use the ditch in question for irrigation of 15 acres in section 15, "subject, however, to the right of the said Barker to use the said ditch to carry water from a reservoir situated on said S.W. 1/4 of section 10 for the irrigation of about 40 acres of his land." The decree, however, permits plaintiff to use the ditch at all times, even though defendant is using it; thus departing the findings in not making such use of plaintiff subject to the Barker use, to which last use, as stated, defendant has succeeded. We are not advised by the evidence or findings that the section of ditch in question is of sufficient capacity to permit the simultaneous use of it by plaintiff and defendant to the extent of their above respective rights. If it is not of sufficient capacity to permit such simultaneous joint use, the attempt to exercise the same would result in an interference with defendant's superior right. The decree in this particular should conform to the findings by making the use of plaintiff subject to the use of defendant. While it is testified that it was not the practice to use the ditch by both parties at the same time, there is no reason why it should not be so used, provided it can be done without interference with the above superior right of defendant. The decree below will be modified here to satisfy this conclusion in the following manner: There will be eliminated from the decree all that portion thereof beginning at the words "to its full capacity for the irrigation of said lands," in folio 229, down to and inclusive of "the irrigation season of each year," in folio 230, and there will be substituted therefor the following: "For carrying water from the said reservoir situated on said E. 1/2 of section 9 to irrigate the 15 acres of land in said section 15 owned May 19, 1887, by plaintiff, subject, however, to the right of said defendant to use the said ditch, to carry water from a reservoir situate on said S.W. 1/4 of section 10 for the irrigation of about 40 acres of land owned by him May 19, 1887, in said section 10."

2. The contract whereby Barker gave to Croke the right to construct the ditch in question over his land was not in writing. It is contended that, such being the case, the contract is void under the statute of frauds. The contrary is decided in De Graffenried v. Savage, 9 Colo.App. 131, 47 P. 902. See, also, Tynon v. Despain, 22 Colo. 240, 43 P. 1039.

3. Barker, who granted to T.B. Croke the right to construct and use the ditch in question over his land in section 10 conveyed the S.W. 1/4 of section 10 to the defendant...