Haines v. Marshall

• Decision Date: 01 December 1919
• Docket Number: 9312.
• Parties: HAINES et al. v. MARSHALL.
• Court: Colorado Supreme Court

185 P. 651

67 Colo. 28

HAINES et al. v. MARSHALL.

No. 9312.

Supreme Court of Colorado

December 1, 1919

Department 3.

Error to District Court, Jefferson County; Charles Cavender, Judge.

Suit by Robert P. Rollins, for whom Mrs. Dora Marshall as sole legatee and devisee of Robert P. Rollins, deceased, was substituted, against John P. Haines and others, as executors of the last will and testament of Julia Merritt, deceased. Judgment for plaintiff, and defendants bring error.

Affirmed.

Ponsford, Carnine & Kavanaugh and Crump & Allen all of Denver, for plaintiffs in error.

William Young, of Denver, for defendant in error.

ALLEN J.

This is a suit for a mandatory injunction. The cause was instituted by Robert P. Rollins, hereinafter designated as the plaintiff, against certain persons as executors of the last will and testament of Julia Merritt, deceased. The controversy relates to a certain lake or reservoir, known as Ward reservoir No. 1, situated in Jefferson county, Colo and upon land which was owned by the testatrix of the defendants. The reservoir, and the land upon which the same is located, is in the possession and control of the defendants, acting as executors. The reservoir in question is filled, or receives water, at certain times, from an irrigation ditch known as the Ward ditch, and from another known as the Agricultural ditch. Both plaintiff and defendants have rights in and to the water flowing in the above-named ditches. The principal relief sought by the plaintiff was an injunction compelling the defendants to allow the plaintiff to store his water from the above-named ditches in Ward reservoir No. 1, and to draw such water therefrom when needed for irrigation purposes. This and other relief was granted to the plaintiff by the decree of the trial court. The defendants bring the cause here for review.

The first contention of the plaintiffs in error, defendants below, is that the plaintiff 'did not establish a right to store water in Ward reservoir No. 1.' The argument on both sides, on this branch of the case, is concerned chiefly with the evidence.

The testimony contained in the record should be viewed in the light most favorable to the party successful in the trial court. Sebold v. Rieger, 26 Colo.App. 209, 142 P. 201. The appellate court will draw every inference fairly deducible from the evidence in favor of the judgment. 4 C.J. 786, § 2739. The evidence in this case, when reviewed under the foregoing rules, establishes the facts hereinafter set forth the most of which are substantially embodied in the findings in the trial court's decree.

The land now in possession of the defendants, and on which the reservoir in question is located, is known as the William S. Ward land, and was formerly owned by William S. Ward. The plaintiff's land, which is affected by the controversy over the storage rights in Ward reservoir No. 1, is known as the Jasper D. Ward land, and was formerly owned by Jasper D. Ward.

Since about 1882, William S. Ward and his grantees or successors in interest, on the one hand, and Jasper D. Ward and his grantees or successors, on the other hand, each were entitled to, and received, for the purpose of irrigating his or their respective lands a certain amount of the water flowing in and through the ditches now known as the Ward ditch and the Agricultural ditch.

Ward reservoir No. 1 was constructed, maintained, and used in or prior to the year 1882. It was used jointly by William S. Ward and Jasper D. Ward from 1882 until 1899. In the latter year, Jasper D. Ward conveyed his land to the plaintiff, and also transferred to plaintiff all his rights in ditches and reservoirs used for conveying or storing water applicable to such land. Since 1899 Ward reservoir No. 1 was used jointly by William S. Ward and his successors, including the testatrix of the defendants, and by the plaintiff. The use of the reservoir during all of the time hereinbefore mentioned was not merely as a right of way for the conveyance of water, but the reservoir was maintained for the purpose of storing the water to which the respective parties were entitled and which they received from the Ward ditch and the Agricultural ditch, so that such water could be withdrawn and applied on their lands at times when there was not sufficient running water in the ditches to meet the needs of irrigation.

The plaintiff at the time this suit was brought was the owner of three shares of stock in the Agricultural Ditch & Reservoir Company and, by virtue of such stock, was entitled to 120 inches of water from the Agricultural ditch. He also owned 1,800 shares in the Ward Canal Company, and was entitled to his proportionate share of the water from the Ward ditch. These water rights, or substantially the same water rights were held by the plaintiff ever since he acquired the Jasper D. Ward land in 1899, or for a period of 17 years. During all of this time his water from the Agricultural ditch and from the Ward ditch had been diverted into and stored by him in Ward reservoir No. 1, and there retained until needed for the irrigation of his lands. From the facts hereinbefore noted, it appears that Ward reservoir No. 1 had been used by the plaintiff and his grantor, as well as by the defendants and their predecessors in interest, for the purpose of storing water, belonging to the respective parties from the two ditches above mentioned, from the year 1882 until the time this action was brought, in 1916. This covers a period of 34 years. Such period is unquestionably long enough to enable the plaintiff to claim the right to store water in the reservoir, as an easement acquired by prescription. The evidence shows that the use was uninterrupted for that length of...