Flick v. Hahn's Peak & Elk River Canal & Placer Min. Co.

• Court: Colorado Court of Appeals
• Writing for the Court: WILSON, P.J.
• Citation: Flick v. Hahn's Peak & Elk River Canal & Placer Min. Co., 66 P. 453, 16 Colo.App. 485 (Colo. App. 1901)
• Decision Date: 14 October 1901
• Parties: FLICK v. HAHN'S PEAK & ELK RIVER CANAL & PLACER MIN. CO.

66 P. 453

16 Colo.App. 485

FLICK v. HAHN'S PEAK & ELK RIVER CANAL & PLACER MIN. CO.

Court of Appeals of Colorado

October 14, 1901

Appeal from district court, Arapahoe county.

Action by William Flick against the Hahn's Peak & Elk River Canal & Placer Mining Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

F.E. Gregg and George L. Hodges, for appellant.

W.E. So Relle, for appellee.

WILSON P.J.

Plaintiff Flick, seeks by this suit to foreclose a mechanic's lien claimed on account of work and labor done by him for the repairing, enlargement, and completion of certain ditches owned by the defendant company, and used by it for the conveyance of water in the conduct of placer mining operations, in which it was engaged. The principal ground of dispute arises from the construction of the contract for the work, which was in writing, and the material portions of which we quote. "This agreement, made and entered into," etc., "witnesseth: That whereas, the said party of the first part is the owner of those two (2) certain ditches in Routt county, Colorado, known as the 'Elk River Ditch,' which extends from a branch of the Elk river in a southwesterly direction for a distance of about twenty-one (21) miles to the town of Hahn's Peak and the 'Willow Creek Ditch,' which, when completed will extend from the west or main branch of the Willow creek in a southeasterly direction for a distance of about four (4) miles to Nugget Cut, a few hundred feet above said town; and whereas, the said party of the first part desires the said Willow Creek ditch to be completed, and the said Elk River ditch to be repaired, improved, and enlarged: Now therefore," etc. (Here follows a number of specifications of the work, as to the size of the ditch, flume, etc.) "A good, durable, strong flume, of sufficient size to carry the waters of said ditch as enlarged, shall be constructed by said Flick around Sand Rock Point, about two and one-half (2 1/2) miles below the headgate of said ditch. That said flume shall be so thoroughly and strongly anchored that it will remain in its position of construction permanently. The headgate of said ditch shall be constructed of substantial material, and the dam or bulkhead across the creek, just below the head of said ditch, shall be constructed of substantial and permanent materials, so that the same will at all times cause sufficient amount of the waters of said Elk river to flow into said ditch to fill the same. *** All of said work shall be completed on or before the 15th day of Aug., A.D.1897, and on completion thereof water shall be turned into the same at the headgate; and the said Flick guaranties that a full head of water shall flow through the said ditch for its entire length for a period of thirty (30) days immediately after its completion. It is expressly understood that a full head of water in said ditch shall mean a volume of water six (6) feet wide on top, three and one-half (3 1/2) on the bottom, and three (3) feet deep." Three several cash payments were required to be made to plaintiff, the last of which was on the 1st day of October, 1897, and the contract then provided further: "On the last aforesaid date, in addition to the aforesaid payments, said party of the first part agrees to make, execute, and deliver unto said party of the second part its conditional note, payable in one (1) year after its date, in the sum of twenty-one hundred seventy-five ($2,175) dollars, secured by seventeen thousand four hundred (17,400) shares of the capital stock of said company, with the condition that, if the said note shall not be paid on or before its maturity, the said stock shall be taken and received by the said party of the second part in full payment of said note. It is further agreed between the parties hereto that said first payment shall be limited to seventy-five (75) per cent. of the value of all work done at that time, and the said second payment shall be made upon the completion of all the said work by said Flick and the acceptance of the same by George B. McFadden, it being the intention that said Flick, upon the completion of said work, shall have received the total sum of five thousand ($5,000.00) dollars, and that no further payment shall be made to said Flick until after he shall have caused a full head of water to flow through said ditch for a period of thirty (30) consecutive days."

It is conceded that the plaintiff did not cause a full head of water, as described in the contract, to flow through this ditch for a period of 30 days, or for any time, after its completion, and for this reason the defendant contends that the plaintiff, having wholly failed to comply with his contract, forfeited all right to recover any further payments which had been provided for. In other words, defendant insists that the principal object of the contract was to secure the specified amount of water, and that the plaintiff bound himself to furnish it, and, failing in this, he was not entitled to recover. Plaintiff contends that the principal object of the contract was to repair enlarge, and construct the ditch so that it would be capable of holding and conveying the specified amount of water; that the only reasonable construction of the contract with reference to this requirement upon him to turn in the water was that it was intended thereby simply to test the capacity of the ditch, after the completion of the work, to hold and carry such an amount of water; and that his guaranty was to this effect and extent only. This being true, plaintiff insists that a failure on his part to comply with this provision in the contract would not wholly defeat his right to a recovery, but would simply entitle the defendant to set off against or reduce the amount of the payments to be made according to the contract by the amount of actual damage, if any, it had suffered by reason of any imperfect or defective work. The trial court seems to have taken defendant's view of the question, and, finding that plaintiff had failed and omitted to cause a full head of water to flow through the said ditch in the complaint specified for a period of 30 days consecutively, it further found that by reason of such failure plaintiff was not entitled to recover at all. In this we are clearly of opinion that the court was in error. In our view,...