Fluke v. Ford

• Decision Date: 04 December 1905
• Citation: 84 P. 469,35 Colo. 112
• Parties: FLUKE et al. v. FORD.
• Court: Colorado Supreme Court

84 P. 469

35 Colo. 112

FLUKE et al. v. FORD.

Supreme Court of Colorado

December 4, 1905

Appeal from District Court, Delta County; Theron Stevens, Judge.

Action by Ann E. Ford against William Fluke and others. Judgment for plaintiff, defendants appeal. Modified.

S. S. Sherman, for appellants.

A. R King and Milton R. Welch, for appellee.

CAMPBELL J.

Action to quiet title to a water right. From a judgment for plaintiff Ford, defendant Fluke appeals. William McMillan is the common source of title. The plaintiff Ford deraigns title by a deed of conveyance from William McMillan to Wiley J McMillan, and from the latter to her; while defendant Fluke claims under a deed of conveyance to him by William McMillan. The deeds which evidence plaintiff Ford's title are earlier in point of time, but later in record, than that to defendant William Fluke; but this is not important, because when Fluke bought he had actual knowledge and notice of Ford's rights and claims. In the deed from William McMillan to Fluke the specific 20 inches of water here in dispute are described, and there is no question that, if McMillan then owned the water right, it thus passed to Fluke. If, however, William McMillan, by his earlier deed to Wiley J. McMillan, conveyed this water right, then plaintiff's right is superior. Whether Wiley's deed passed the water right must be determined from the deed itself and the circumstances attending the transaction of sale.

William McMillan conveyed to Wiley J. McMillan a certain tract of land specifically described, and in the deed was the further following granting clause: 'Together with one-half interest in the irrigation ditch known as the Clear Fork ditch and one-half interest in the water belonging to said ditch, or that is entitled to run through the same either by decree, appropriation or ownership.' William McMillan, the grantor, says that he did not sell, and it was not his intention to convey, to Wiley J. McMillan the 20 inches of water in dispute; while Wiley, the grantee, says that it was the intention of his grantor to sell and convey and his intention to buy, these 20 inches of water, which intent is evidenced by the language above quoted, when considered in the light of the surrounding circumstances. The facts are that this identical amount of water had been used for irrigating the particular land before it was sold by William to Wiley, and was continuously used by Wiley in irrigating the same until the latter conveyed it to plaintiff Ford, and by the latter until defendant diverted it to his own use elsewhere. At the time of the conveyance to Wiley William owned a one-half interest in the Clear Fork ditch, and a one-half interest in the water belonging thereto which had been decreed to it in the appropriate statutory proceedings. He also owned the 20 inches of water in controversy, which originally had been decreed as a part of the appropriation of the Fluke ditch taking water from the same stream in the same water district. By an arrangement between William McMillan and other persons interested in the Fluke and Clear Fork ditches, William received a deed of conveyance of 20 inches of water belonging to the Fluke ditch appropriation which he was permitted to divert, and which, by himself, tenants, and grantees, was diverted, and applied to the land now owned by plaintiff Ford, through the headgate of the Clear Fork ditch.

The court found that William McMillan owned this water right at the time he executed his deed of conveyance to Wiley, and that, by agreement of all parties concerned, it had been theretofore diverted and used through the Clear Fork ditch in irrigating the...