Hall v. Lincoln

• Decision Date: 08 November 1897
• Parties: HALL et al. v. LINCOLN et al.
• Court: Colorado Court of Appeals

50 P. 1047

10 Colo.App. 360

HALL et al. v. LINCOLN et al.

Court of Appeals of Colorado

November 8, 1897

Error to district court, El Paso county.

Action by Lucretia L. Hall and others against Andrew G. Lincoln and others to restrain defendants in the use of certain waters for irrigating purposes. There was judgment for defendants and plaintiffs bring error. Affirmed.

A.T. Gunnell, J.K. Vanatta, and Joseph W Taylor, for plaintiffs in error.

Colburn & Dudley and Joseph C. Helm (A.P. Rittenhouse, of counsel) for defendants in error.

WILSON J.

This suit was instituted by plaintiffs in error in March, 1890, to restrain defendants from diverting the waters of Big Fountain creek, to the damage of plaintiffs. It is a contest over the right to divert and use said waters for agricultural purposes between two irrigating ditches,--the Hall and Owen ditch owned by plaintiffs, and the Lincoln ditch, owned by defendants. The inception of the right of the Hall and Owen ditch was claimed to date from a diversion of the water and its actual appropriation to beneficial uses in 1862; that of the Lincoln ditch, from a similar diversion and appropriation in 1861. In February, 1882, in proceedings in the district court of El Paso county to adjudicate the rights and priorities of this and other ditches in accordance with the statutes then in force, a final decree was rendered whereby the Lincoln ditch was adjudged to have priority No. 5, and the Hall and Owen ditch priority No. 8. It is not claimed in this action that the owners of the Lincoln ditch were using more water than was allowed to them by this decree. In their complaint plaintiffs base their right to the relief demanded upon their prior diversion and appropriation and continuous user since 1862. Defendants W.H. and F.F. Roby, the other defendants not appearing, answered, denying the alleged priority of appropriation of plaintiffs, and setting up a prior appropriation by the Lincoln ditch, and a continuous user of the water. They also specially pleaded as a defense the decree of the district court of February, 1882, and also the statute of limitations. In their reply plaintiffs attacked the decree upon the ground that it had been falsely and fraudulently obtained, and on the further ground that since its rendition the owners of the Lincoln ditch had waived and abandoned their rights to the use of the water adjudged to them by this decree, and that plaintiffs had acquired a right thereto by their thereafter continuous and adverse use. Upon trial the issues were found in favor of the defendants, and judgment was rendered dismissing the bill. To this plaintiffs prosecute error.

The sole assignment of error is that the court erred in its findings and in its judgment of dismissal. While it would appear from the pleadings that plaintiffs intended to put in issue the validity of the decree, no attempt was made to do so, either in the argument or trial, and they expressly disclaim such intention, relying wholly upon the question of abandonment by defendants. It is well settled in this state by the highest judicial authority that the right to the use of water is based upon its actual diversion and its application to a beneficial use; also that the continuance of the right depends upon the continuous user of the water, and hence may be abandoned by nonuser. Sieber v. Frink, 7 Colo 154, 2 P. 901; Nichols v. McIntosh, 19 Colo. 22, 34 P. 278; Combs v. Ditch Co., 17 Colo. 152, 28 P. 966. Plaintiffs claim that the evidence shows--First, a waiver subsequent to the decree, by an agreement or consent of the then owners of the Lincoln ditch, of its adjudged priority in favor of the Hall and Owen ditch; second, the actual nonuser of the water by the owners of the Lincoln ditch from 1882 to 1890; and, third, the user by Hall and Owen during said period of the water so abandoned, openly and adversely, and under a claim of right. We might very properly, under the circumstances, dismiss the further consideration of this case upon the ground repeatedly held by this court, that the appellate court will not review findings of fact,...