Farmers' Highline Canal & Reservior Co. v. White

• Decision Date: 14 November 1892
• Citation: 5 Colo.App. 1,31 P. 345
• Parties: FARMERS' HIGHLINE CANAL & RESERVOIR CO. v. WHITE.
• Court: Colorado Court of Appeals

31 P. 345

5 Colo.App. 1

FARMERS' HIGHLINE CANAL & RESERVOIR CO. v. WHITE.

Court of Appeals of Colorado

November 14, 1892^[1]

Appeal from district court, Jefferson county; CLAYTON F. BECKER Judge.

Action by the Farmers' Highline Canal & Reservoir Company against Torrence White to restrain defendant from forcibly taking water from plaintiff's ditch. From a judgment for defendant, plaintiff appeals. Reversed.

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

In June, 1889, appellant filed a bill in equity praying an injunction, and that the defendant (appellee) be restrained from opening the delivery boxes of plaintiff, and taking from the ditch, for irrigating purposes, water in excess of 45 cubic inches. Plaintiff is a corporation owning and controlling a ditch for supplying water to its shareholders (and perhaps others) for irrigation. Defendant was and is a landowner under the ditch, from which he gets his water. In the year 1889, the water allowed the defendant by the plaintiff corporation was 45 inches. The amount being inadequate, he demanded an additional 75 inches, making in all 120 inches, and tendered payment for it. The company refused the money, and refused to furnish the water. The following allegation appears in the bill of complaint as the ground for such refusal: "The said additional seventy-five inches of water, and no part thereof, can be supplied from said ditch to said lands without interfering with, and damage to, the rights and demands of those who according to law, have a right to demand and receive water from said ditch, and who have demanded and paid for the same and are entitled to receive the same for the year 1889. That the amount of water applied for and paid for, and which the said company is under law, as far as it is able to do legally bound to furnish for the year 1889 to the persons who are legally entitled to receive the same, has exhausted, and will continue during the year 1889 to more than exhaust, all the water which said company can or will secure in said ditch, and it is a physical impossibility for it to accede to and comply with the said application and demand of defendant for said additional seventy-five inches of water, or for any part thereof, without interfering with and damaging the rights and claims of others, as above mentioned, and making the plaintiff liable to each and every and to all of said parties having a right thereto." It is also alleged that on the 31st day of May, after such refusal, the defendant forcibly and wrongfully enlarged the box or opening at the ditch, and took from it, for his own use, the 120 inches of water he had formerly demanded, and declared his intention to take, at all times during the irrigating season of 1889, such quantity of water. The facts above stated are conceded by the defendant, and are attempted to be legally justified in the answer.

It appears that in the early history of the ditch it was known as the "Golden Canal," was of limited capacity, and all the water carried was for the use of the stockholders, who were the owners of the land under it. In the year 1873 parties were desirous to enlarge and extend the ditch. That one Nils Ahlestrom, with numerous others, was a stockholder in the same, and was owner of 240 acres of land covered by the ditch, and that appellee and wife (whose agent he was) became the owners of the Ahlestrom land, and had the title at the time of the trouble resulting in the bringing of this suit. In the year 1873 the ditch company appears to have been reorganized or incorporated, and became known as the "Golden City & Arapahoe Ditch Company," and under such name, on the 24th day of March, 1873, entered into and became a party to the following contract:

"This indenture, made and entered into this 22d day of March, A.D.1873, by and between the Golden City and Arapahoe Ditch Company, of the county of Jefferson, of the first part, and William Bomberger, Francis Gallup, and William A. Rand, partners doing business under the name and firm style of William Bomberger & Co., of the county of Arapahoe, of the second part, and Nils Ahlestrom, Elihu Evans, Oliver Evans, Hiram Evans, North Evans, Eli Allen, William Allen, John Clark, J.P. Maschebeuf, Charles Rand, William Rand, E.W. Hyatt, John A. Ward, Harpin Davis, John W. Cook, and H.P.H. Bromwell, stockholders in the said ditch company, and owners of land under said ditch, of the third part, witnesseth, that whereas, the said William Bomberger, Francis Gallup, and William A. Rand, by their said name and firm style of William Bomberger & Co., by a certain written agreement, made between said Golden City and Arapahoe Ditch Company and the said William Bomberger & Co., on the 20th day of March, A.D.1872, and recorded on page 344 of volume No. 'L' of the records of the county of Jefferson, territory of Colorado, in the office of the county clerk and recorder of said county, did become the lessees of the right of way and ditch of said company lying in said county of Jefferson, and are at this time in possession of said ditch and right of way under and by virtue of said lease; and whereas, it is desired to make certain other and further agreements for control and management of said ditch, and furnishing water for irrigation for the lands owned at this time by the said several parties of the third part from the said ditch, as well for the accommodation of the said parties of the first and second part as for the said parties of the third part, and for securing the said parties of the third part severally, and to each and every of their several assigns and vendees, lessees, and tenants of the said lands as now held severally by said several parties of the third part under said ditch, sufficient water from said ditch for the irrigation of the lands now owned or occupied or cultivated, or which may be hereafter cultivated by him or his assigns, as any part of the lands now owned or occupied by him under said ditch, upon the terms and conditions herein below set forth, which said lands so hereby intended to be irrigated from said ditch are set forth by the numbers thereof in a schedule annexed hereto, and marked 'List of Lands:' Now, it is hereby covenanted and agreed on the part of said William Bomberger & Co. that the said William Bomberger & Co. shall pay off all indebtedness and cost necessary to be paid in order to secure the clear and complete right of way of and for said ditch from the head of said ditch to Ralston creek, in said Jefferson county, and to pay the fees of attorneys and counsel now due from said company for legal services in and about the incorporation thereof, and

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