Ft. Lyon Canal Co. v. Bennett

• Decision Date: 03 April 1916
• Docket Number: 8351.
• Citation: 156 P. 604,61 Colo. 111
• Parties: FT. LYON CANAL CO. v. BENNETT et al.
• Court: Colorado Supreme Court

156 P. 604

61 Colo. 111

FT. LYON CANAL CO. v. BENNETT et al.

No. 8351.

Supreme Court of Colorado

April 3, 1916

Error to District Court, Otero County; C. S. Essex, Judge.

Suit by Earl P. Bennett and others, administrators, substituted in the place of James L. Bennett, deceased, and Earl P. Bennett against the Ft. Lyon Canal Company. Judgment for plaintiffs and defendant brings error. Reversed and remanded.

Henry A. Dubbs, of Denver, O. G. Hess, of La Junta and Henry C. Vidal, of Denver, for plaintiff in error.

Fred A. Sabin, of La Junta, for defendants in error.

GARRIGUES J.

1. May 28, 1911, Bennett & Son, as copartners, spoken of as plaintiffs, filed a complaint in the district court of Otero county alleging, in substance, that the Ft. Lyon Canal Company, defendant below, plaintiff in error, owned and operated a canal called the Ft. Lyon storage canal or supply ditch, constructed to divert and carry water from the Arkansas river for storage in a reservoir; that plaintiffs were engaged in the business of farming a certain tract of arid land constituting part of the Holbrook irrigation district, and irrigated from the Holbrook canal an irrigating ditch belonging to the district which would have suppled plaintiffs with sufficient water to irrigate the land in 1910 had the lateral not been interfered with by defendant; that they possessed and had the right to use a lateral of sufficient size and capacity and in proper condition to carry the water from the Holbrook canal to and upon the land, except as it was interfered with by defendant; that in 1910, in carrying on their business of farming the land, they in proper time and workmanlikemanner plowed and seeded 20 acres to cucumbers, 24 acres to sugar beets, and 26 acres to wheat; that there was already growing thereon 107 acres of alfalfa and a bearing apple orchard, all requiring irrigation from the canal through this lateral; that some time prior to January, 1910, defendant constructed the supply canal across the line of the lateral; that it became necessary for defendant to provide a means of carrying the lateral and water used by plaintiffs in farming the land across the supply canal, and for this purpose it designed, adopted, and laid a line of vitrified sewer pipe in the form of an inverted siphon under the supply canal; that the siphon was negligently constructed, in that it was not of sufficient size to carry the water, was left rough on the inner surface, and hence not suitable for the purpose for which it was built; that all of this was done by defendant without any license, right, authority, or consent of plaintiffs or of the owner of the lateral; that during the year 1910 there was sufficient available water flowing in the Holbrook canal which plaintiffs were entitled to have delivered to them through the lateral to have produced full crops which they would have grown to maturity on the land except for the interference with the lateral by defendant, which rendered it impossible for plaintiffs to obtain from the ditch the volume of water necessary for the proper irrigation of the crops; that, except for such interference with the lateral, the land in 1910 would have produced 400 pounds of cucumber seed to the acre, 18 tons of beets to the acre, 45 bushels of wheat to the acre, 3 1/2 tons of alfalfa hay to the acre, and the orchard would have produced 150 boxes of apples; that on account of such interference, it only produced 85 pounds of cucumber seed to the acre, 8 tons of beets to the acre, 17 bushels of wheat to the acre, 2 1/2 tons of alfalfa hay to the acre, and the orchard only produced 20 boxes of apples; that plaintiffs were damaged on account of the partial failure of the cucumber crop in the sum of $1,008, of the beet crop in the sum of $128, of the wheat crop in the sum of $496.72, of the alfalfa crop in the sum of $508, of the apple crop in the sum of $150, and in attempting to run water through the siphon they were obliged to and did expend the sum of $155 in removing sand and debris therefrom and in cleaning the lateral of lodgments caused thereby.

Defendant filed a motion requesting that plaintiffs state more specifically the manner in which the loss of the crops was an injury to or damaged them; that is, the connection or relation of defendant with the damage, which was overruled. A general demurrer to the complaint was overruled, and defendant answered, admitting the corporate existence and the construction of the canal and siphon, and denying every other allegation of the complaint. By special defense it charged plaintiffs with contributory negligence for failing to properly place and maintain the lateral and to put and keep it in proper condition to carry the water. It also set up as a special defense that the construction of the canal and the siphon by defendant and the work in connection therewith were performed and completed in 1907, long prior to the existence of any title, possession, or right of possession in plaintiffs in or to the land; that the siphon was in part an underground structure, and it and the works in connection therewith were, and were designed to be, of a permanent character; that at all times after their construction, and up to and through the year 1910, and for a long time prior to the existence of any title, possession, or right of possession in plaintiffs in or to the land, the structures remained as they were originally completed; that during the year 1910 they were capable of carrying as much water to and for the land as at any time after their completion; that at the time of the completion of all the work thereon by defendant, for a long time thereafter, and up to and for a long time after the water for the irrigation of the land was first run through the siphon, the lands were owned by and in possession of persons other than plaintiffs and the structures were at all times after their completion and up to the year 1910 used in conveying water for irrigating the lands, and they were so irrigated; that all such rights as were possessed by plaintiffs to farm the lands for the year 1910 were acquired by them after the construction of and with full knowledge of the existence of the siphon and the work of installing it, and after the water for the lands was run through the siphon and used for their irrigation; that plaintiffs have never owned the lands or any part thereof, and have never owned any water rights for the lands.

The court ruled out this defense on general demurrer. Plaintiffs replied that, if the siphon had been constructed by defendant of proper size, grade, and materials, no sand or dirt.

2. The court should have sustained defendant's motion to make the complaint more specific. We do not reverse the case on this account, however; but, inasmuch as it must be reversed and remanded for other reasons, plaintiffs will be given an opportunity to file an amended complaint, if they desire. In a suit for damages to growing crops done before maturity, plaintiff's title, right, interest, ownership, or right of possession in the land should be stated for the purpose of showing his connection with the crop and the damages. The only allegation of fact touching the ownership of the land here is that plaintiffs were engaged in the business of farming the land, which they planted in certain crops. The allegations in this regard should be such as would, if true, when set out in an answer, constitute a bar against another suit brought by a purported owner or lessee of the land against the defendant for the same loss, if pleaded for that purpose. There is danger that the mere allegation that plaintiffs were engaged in the business of farming the land would not, when pleaded in a subsequent action, constitute such a bar.

3. The court erred in sustaining plaintiffs' demurrer to defendant's additional special defense. The demurrer admitted all facts therein well pleaded, which brings into consideration the legal sufficiency of the pleading. It alleged in this defense and offered to prove that the siphon was constructed long prior to the existence in plaintiffs of any title, possession, right, or interest in or to the land or water; that the siphon was permanent in character, and was maintained and operated as originally constructed for several years prior to the existence in plaintiffs of any title possession, or right of possession in the water, lateral, or land; that its capacity was the same at all times; that long prior to 1910 the lands were owned by and in possession of persons other than plaintiffs; that the siphon after its completion, and up to 1910, was used in conveying water to the lands; that whatever right plaintiffs may have had to farm the lands in 1910 was acquired by them long after the construction and with the knowledge of the existence of the siphon and the work of installing the same; and that plaintiffs never owned the lands or any part thereof nor any water rights for the same. From this defense it appears that the siphon was constructed in 1907, and was thereafter used as a permanent structure in connection with the land. Whatever right plaintiffs may have acquired in the land, if any, was admitted by the pleading to have been acquired long after the structure was built and had been in use in connection with the land. Under such conditions repeated actions year after year by subsequent purchasers, lessees, or croppers for the loss of the crops cannot be maintained. Such subsequent owners or lessees would take the land subject to the permanent conditions of the laterals as they existed when their rights were acquired. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6; Denver C. I. & W. Co. v. Middaugh, 12 Colo. 434, 21 P. 565, 13 Am.St.Rep. 234; Jackson v. Ackroyd, 15 Colo. 583, 26 P. 132; City of...