Greeley Irr. Co. v. Von Trotha

• Decision Date: 02 May 1910
• Citation: 108 P. 985,48 Colo. 12
• Parties: GREELEY IRR. CO. et al. v. VON TROTHA et al.
• Court: Colorado Supreme Court

108 P. 985

48 Colo. 12

GREELEY IRR. CO. et al. v. VON TROTHA et al.

Supreme Court of Colorado

May 2, 1910

Appeal from District Court, Weld County; James E. Garrigues, Judge.

Action by Erich Von Trotha and another against the Greeley Irrigation Company and another. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

C. D. Todd, for appellants.

Elbert C. Smith, for appellees.

WHITE J.

Appellees as plaintiffs, brought this suit against appellants to recover damages to their crops, caused by the overflow of the Cache la Poudre river upon their lands. The appellants owned and operated, jointly, a certain line of ditch commonly known as 'canal No. 3,' which has its headgate on the south bank of, and takes its supply of water from, the Cache la Poudre river at a point upon plaintiffs' land.

The complaint, in substance, alleges: That defendants in November, 1903, constructed a wooden dam or check in and across said river at a point about 60 feet below the headgate of canal No. 3; that during the spring of 1905 defendants negligently allowed sand, silt, and the débris from the river to accumulate in said canal and headgate thereof; that about the 5th day of June, 1905, the defendants negligently allowed said dam or check to remain in the river during a rise of the water, neither raising nor lowering it; that on account of said accumulation of sand and débris, and on account of not properly handling or regulating said check or dam, the defendants caused the water in the river to back up and overflow its banks in and upon plaintiffs' property to their damage; that said water would not have escaped its river banks, but would have remained therein without harm to the plaintiffs if said sand, silt, and débris had been properly removed, or said check or dam raised or lowered in the river.

The answer, after admitting certain allegations of the complaint alleges, in substance: That in 1870, while the land owned by plaintiffs was a part of the public domain, the assignors of defendants constructed a dam across the river at substantially the same point, and of the same height, and for the same purpose as the dam or check of which complaint is made; that from time to time said dam was repaired and reconstructed, and such was the work done thereon in November, 1903; that the dam as repaired and reconstructed with flashboards thereon, was no higher and no greater obstruction in the river than the dams previously maintained at said point; that said dam was necessary for the operation of said canal, and was constructed according to the customs and laws relative to the construction of dams and canals for the appropriation of water; that the patents for the land, owned by plaintiffs, conveyed the same subject to the rights of defendants to maintain said dam as theretofore maintained, and ever since said dam has been maintained, used, and enjoyed, with the knowledge and consent of all owners of said land, including plaintiffs; that by reason of the premises the appellants obtained, and had a vested right and easement in and upon, said land and stream to keep and maintain said canal, headgate, and dam with the right to check back the waters in the stream and upon appellees' land; that the injury complained of was caused by an extraordinary flood; that plaintiffs had allowed the river channel to become narrowed by the undergrowth and the accumulation of débris in the channel upon their own land and thereby caused the overflow and consequent injury; that plaintiffs' cause of action accrued more than 6 vears, and more than 20 years, before the commencement of this suit. The answer then denies all other allegations of the complaint. A replication was filed and the cause subsequently tried. The defendants requested, at the close of the evidence, that the jury view the premises, which was denied. A verdict was returned, and judgment entered, for plaintiffs, from which defendants prosecute this appeal.

In 1870 the defendants, or their predecessors in interest, built a dam of dirt, gravel, and brush, commonly known as a 'brush dam,' across the river at a point about 60 feet below the headgate of canal No. 3, for the purpose of diverting therein the water from the river. The dam would at times wash out, and was rebuilt practically in the same manner from time to time until 1883. In the fall of that year the brush dam was replaced by one made of piles and plank, with flashboards which were taken out or off during periods of high water. This dam with the flashboards was practically of the same height as the original dam.

In November, 1903, the piles forming the basis of the dam constructed in 1883 were sawed off, and an apron or floor was constructed thereon which consists of plank 3 inches thick and 12 feet long. Above the apron is a structure made of 8"'X8"' timbers about 12 feet in length, set 5 or 6 feet apart, at an angle of about 45~ downstream. On each timber in the center is a 2"'X2"' board and on that a 2"'X8"' cleat forming a slot or groove into which boards, so made as to slide up or down, are placed, forming the face of the dam. These sliding boards are commonly known as 'flashboards,' and in operating this dam, as well as the one built in 1883, it was the intention and custom to take out, remove, lower, or raise these flashboards during flood times in order to allow a freer passage of the water in the river. The dam is supplied with a sand chute about 15 feet in width, operated for the purpose of keeping the headgate and ditch from choking up with sand. The sand chute was not operated in 1904, and a sandbar filled in above the dam in the ditch, and in front of the headgate. It was about 130 feet long, 30 to 40 feet wide, 1 1/2 feet in depth, and extended about 40 feet past the headgate. It was two-thirds larger than any sandbar previously there. It so remained in 1905, at the time plaintiffs' crops were destroyed, extending into the ditch between the headgate and the weir. When the high water that damaged plaintiffs came, the flashboards tightened and could not be removed, lowered or raised. At the time of the construction of the brush dam the lands of plaintiffs belonged to the United States, and so continued as to one portion thereof until 1874, and as to the other until 1895, when patents issued to the then purchasers, who thereafter conveyed the same to plaintiffs. The patents to plaintiffs' land conveyed the same 'subject to any vested and accrued water rights * * * and rights to ditches and reservoirs used in connection with such water rights as may be recognized by the customs, laws and decisions of courts * * * as by law provided.'

At the close of the evidence, the court took from the consideration of the jury the third alleged defense, and instructed them, in effect, that, if plaintiffs were injured as alleged in the complaint, their cause of action accrued at the time the damages were sustained, to wit, in June, 1905, and was not barred by the statute of limitations. The action of the court in this respect is urged as constituting reversible error. It is contended that this defense involved two propositions: First, 'that the plaintiffs purchased their lands with full knowledge of the rights of defendants in and to said dam and ditch, and the nature and extent of said appliances as existing structures, and the effect of the use and operation thereof upon said lands'; and, second, 'the defense of the statute of limitations.' All the matters contained in the third alleged defense, except solely the statute of limitations, were covered and pleaded in each of the two preceding defenses, and were therein fully submitted to the jury. Moreover, it is quite evident the pleader never intended to present, by the third defense, nor did the court, or jury, understand, that thereby there was presented any defense, other than the statute of limitations. Plaintiffs' cause of action accrued when the water invaded their premises and the damages occurred, and not before. The court, therefore, properly told the jury that plaintiffs' cause of action, if proven, was not barred by the statute of limitations.

Defendants contend that under the facts of the case, and by virtue of sections 2339 and 2340, Rev. St. U.S. (U. S. Comp. St. 1901, p. 1437), and by the reservations in the patents to the land of plaintiffs, the former acquired, and still have, the right to maintain a permanent dam of the elevation originally constructed, and that the court ignored such right by refusal to give instruction No. 6 requested by them. We think that the instruction requested was fully covered by other instructions given, and the matters of defense pleaded were fairly submitted to the jury.

It is perhaps, true that defendants had a right to maintain a dam across the river at substantially the same place and of the same height, and which set back the water in the river to the same extent, as the dam originally constructed and maintained, and plaintiffs acquired their land subject to such right, and could not recover for an injury sustained by them by reason of the fact of such dam. To this effect the court instructed the jury. The defendants, however, had no right to rebuild and maintain a new dam in such a way as to place a greater servitude or burden upon the property of plaintif...