Davis v. Randall

• Citation: 44 Colo. 488,99 P. 322
• Parties: DAVIS v. RANDALL et al.
• Decision Date: 04 January 1909
• Court: Supreme Court of Colorado

99 P. 322

44 Colo. 488

DAVIS v. RANDALL et al.

Supreme Court of Colorado

January 4, 1909

Appeal from District Court, Jefferson County; A. H. De France Judge.

Action by Edward W. Davis against Laura E. Randall and others. From an order overruling a motion for a new trial and a judgment dismissing the action, plaintiff appeals. Affirmed.

George W. Taylor, for appellant.

J. W Barnes, for appellees.

CAMPBELL J.

The ostensible object of this action was to restrain defendants from interfering with plaintiff in conveying water through certain ditches and laterals across defendants' lands and reconstructing or repairing the same. The record justifies the assertion that the real purpose was to establish in plaintiff the right to the use of water for irrigation purposes as against the asserted right of the defendants thereto. At the close of plaintiff's evidence the court, on defendants' motion, nonsuited plaintiff, and afterwards overruled his motion for a new trial, and dismissed the action. The controversy upon this review is therefore to be determined upon plaintiff's own evidence. The salient facts are that Laura E. Cook, in the year 1893, owned, in one contiguous tract, a quarter section of land and also other contiguous or adjacent lands, water rights, reservoirs, and ditches for applying water thereto. She divided the quarter section into eight 20-acre tracts four of which lay on the north, and four on the south, side thereof. She sold and conveyed to each of her four daughters, then living, 40 acres of this quarter section, each one taking 20 acres in the north, and 20 acres in the south, row of the tract so divided. The conveyance was made by one deed, which, after particularly designating the four several interests in the land conveyed, thus described the water rights granted with the lands: '* * * Together with the following water rights, to wit: To the said Olive I. McGinnis and Lillian B. Brinkerhuff each the right to purchase yearly from the irrigating ditch known as the 'Eureka Ditch' for use upon their respective parcels of land lying under and below said Eureka ditch twelve and one-half inches of water; and to the said Laura E. Randall and Emily F. Briggs each the right to use each and every year hereafter during the irrigating season thereof for the south twenty acres hereby granted and conveyed to her twelve and one-half inches of water from the upper lake situate on the northeast quarter of the southwest quarter of said section eight, and the right of way for a ditch to convey said water from said lake to their said lands; and to all of the said parties of the second part the right to use the balance of the water of said upper lake and the whole of the water of the lower lake on said last named forty-acre tract of land during each and every irrigating season hereafter for the irrigation of the remainder of their said lands respectively, each to have an equal share of such water and the right to enlarge the said lakes and to the use of the increased supply of water arising from such enlargement, each to have an equal share of such surplus or increased supply, and each to bear an equal part of the expense or cost of such enlargements.' Other description in the deed relates to grants of right of way for ditches to carry water to these several parcels. Thereafter plaintiff acquired title to two of these northern 20-acre tracts, one of which had theretofore been conveyed to Lillian B. Brinkerhuff, and the other to Emily F. Briggs. By plaintiff's deed he acquired title to the same water rights which Mrs. Brinkerhuff and Mrs. Briggs got by their deed from their mother, the latter deed being referred to in plaintiff's deed for a description of the water rights conveyed to him.

As we understand the record, plaintiff does not claim any other or different water or ditch rights than those expressly and by implication conveyed in the deed of Mrs. Cook to her two daughters, except such rights as, under another source of title, he claims to have obtained as the result of an independent appropriation, which latter claim will be hereinafter separately considered. It appears from the complaint, and also by the evidence, that the ditches, concerning which plaintiff seeks injunctive relief, and which are used for irrigating his lands, are higher up than either of the lakes or reservoirs which are the source of supply of the water with which the northern row of 20-acre tracts was to be irrigated; and it likewise appears that these reservoirs or lakes are lower than the northern portions of such tracts. The plaintiff introduced evidence that before Mrs. Cook conveyed to her daughters, she had, at different times, and in different ways, applied to her different tracts of lands the water rights which she owned, without observing the apportionment of water as made in her deed to the four separately transferred tracts, and after the conveyance to her daughters they did not always adhere to, or observe, such apportionment. There is no contention, and if it was made it could not be maintained, that plaintiff has not enjoyed the use of the water that was particularly described in the deed from Mrs. Cook to her daughters, and in his own deed for the two 20-acre tracts; but the claim made by plaintiff against defendants, who are immediate and remote grantees of the other two parcels, is that, since Mrs. Cook made conveyance of these two 20-acre tracts, which by mesne conveyances plaintiff has acquired, the implication of law arises that...