Denver, T. & Ft. W. Ry. Co. v. Pulaski Irrigating Ditch Co.

• Decision Date: 15 January 1894
• Citation: 35 P. 910,19 Colo. 367
• Parties: DENVER, T. & FT. W. RY. CO. v. PULASKI IRRIGATING DITCH CO. [1]
• Court: Colorado Supreme Court

35 P. 910

19 Colo. 367

DENVER, T. & FT. W. RY. CO. v. PULASKI IRRIGATING DITCH CO. ^[1]

Supreme Court of Colorado

January 15, 1894

Appeal from district court, Las Animas county.

Action by the Pulaski Irrigating Ditch Company against the Denver Texas & Ft. Worth Railway Company for damages to plaintiff's ditch. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

This is an action to recover damages for an alleged trespass. The appellee, on and prior to the 1st day of August, 1887, was the owner of an irrigating ditch taken out of the south side of the Las Animas river. It was about 15 miles in length, 15 feet wide at the top, and 12 feet wide at the bottom, and covered with water to the depth of 2 feet, and was used in irrigating a large area of land, and was of the alleged value of $30,000. As its cause of action, plaintiff avers 'that on or about said date the defendant entered upon said irrigating ditch with teams, plows, and scrapers, and dug up and destroyed said ditch in many places, and afterwards laid its railroad track over, on, and along said ditch, and built bridges across, over, and on said ditch, and changed the natural drainage of the adjacent lands so as to cause great floods to strike said ditch, so as to totally destroy and render worthless said ditch, to the damage of the plaintiff in the sum of thirty thousand dollars.' The complaint originally contained a second count and prayer for equitable relief, but the same was dismissed upon the trial, in pursuance of the following stipulation: 'It is here in open court stipulated between the counsel for plaintiff and defendant, and agreed that the same be made part of the record in said cause, as follows, to wit: 'Dismissed as to second count, and prayer for abatement and injunction. Cause to proceed on first count for permanent damages, and upon understanding that road remain permanently as located and acquire rights thereby to remain permanently as located.'' The trial was to a jury, and resulted in a verdict in favor of plaintiff for the sum of $2,400. Motion for new trial was overruled, and judgment rendered on the verdict. To revise this judgment, defendant below prosecutes this appeal.

Teller & Orahood, for appellant.

John McKeough, for appellee.

GODDARD J., (after stating the facts.)

The principal question presented by the assignment of errors is as to the character and amount of the damages recoverable under the complaint. It is insisted by counsel for appellant that such damages, if any, as resulted from the temporary interference of the flow of water in the ditch occasioned by appellant while constructing its road, are not recoverable under the pleadings, and that no recovery can be had for damages accruing from the alleged wrongful acts subsequent to the commencement of the suit. We are clearly of the opinion that under the complaint, especially as supplemented by the stipulation the trespass complained of should be treated as a permanent one, and such as entitles appellee to a single recovery for the whole of the damage that resulted therefrom. By virtue of the stipulation the appellant was...