Handy Ditch Co. v. Louden Irrigating Canal Co.

Decision Date17 September 1900
PartiesHANDY DITCH CO. v. LOUDEN IRRIGATING CANAL CO.
CourtColorado Supreme Court

Appeal from district court, Larimer county.

Action by the Louden Irrigating Canal Company against the Handy Ditch Company and others to restrain defendants from diverting water to the detriment of plaintiff's right of priority. From a decree awarding defendant ditch company priority to 20 cubic feet of water per second, both parties appeal. Reversed.

George W. Bailey and Garbutt & Garbutt, for complainant.

Willard Teller and Frank J. Annis, for defendants.

CAMPBELL C.J.

The Big Thompson, the Louden, and the Handy irrigating ditches situate in water district No. 4, take water from the Big Thompson river, a natural stream, in Larimer county. In 1883, in the statutory proceedings provided for that purpose, there was rendered in the district court of Boulder county a decree, by which their respective priorities of right to the use of the water for irrigation were adjudicated and determined to be in the order just mentioned. This decree gave to the Big Thompson ditch a priority of 78 cubic feet of water per second of time. In 1897 the Handy Ditch Company, appellant, the owner of the Handy ditch purchased the Big Thompson ditch and its decreed priority and changed the point of diversion from the headgate of the Big Thompson ditch, through which up to that time the water had been carried, and thereafter diverted the water through the headgate of the Handy ditch, and applied the water thus diverted to the irrigation of lands belonging to its stockholders lying under the Handy ditch. The headgate of the Big Thompson ditch is several miles below those of the other two ditches. The appellee, the Louden Irrigating Canal Company, the owner of the Louden ditch, thereupon brought this action to restrain the appellant company (defendant below) and the water commissioner from diverting any part of the priority of the Big Thompson ditch, through the medium of the Handy ditch, until after the priority belonging to the Louden ditch was satisfied. One of the objections made by the appellee to this diversion was that there had been an abandonment by the owners of the Big Thompson ditch of the greater quantity of water decreed to it. Upon conflicting evidence the court found that all of such decreed priority except 20 cubic feet of water, had been abandoned, and since the year 1883 such excess had been in the undisturbed use and possession of appellee and other water consumers from the river; and upon this finding a decree was entered, permitting appellant to divert, through the Handy ditch, 20 cubic feet of water per second of time, and no more, of the Big Thompson priority. Both parties excepted to, and have appealed from, the decree, and duly assigned errors.

While the appellant complains of the action of the court in restricting it to 20 cubic feet of water, and maintains that it is entitled so to divert the entire 78 cubic feet, the appellee, on the contrary, insists that up to the time of the purchase by the Handy Ditch Company the former owners of the Big Thompson ditch never used for irrigating their lands to exceed 6 or 7 cubic feet of water. Much evidence was taken upon this and other controverted points. We have examined it sufficiently to ascertain that, though there is a substantial conflict in the evidence, yet the finding that there had been an abandonment of the priority in excess of 20 cubic feet rests upon sufficient legal evidence, and that the finding that 20 cubic feet of such priority has not been abandoned is likewise sustained. We therefore find it unnecessary to pass upon a number of assignments of error made by both parties, and based upon the rejection and admission of testimony, because if, as contended, there were erroneous rulings by the trial court, they were not prejudicial to either party.

A more important question grows out of that assignment of error by the appellee that the trial court erred in permitting the Handy Ditch Company to divert from the Big Thompson river into the Handy ditch any part of the Big Thompson priority. In its replication to the answer the appellee, plaintiff below, among other things alleged that below the headgates of the Louden and Handy ditches the water of the Big Thompson river was augmented by springs, seepage return water, and tributaries to the amount of about 50 cubic feet per second of time during the irrigating season, and that this increased flow was available for, and amply sufficient to supply, the entire appropriation to which the Big Thompson ditch was entitled; but when the Handy Ditch Company, after the purchase of the Big Thompson ditch and its priority, attempted to change the place of diversion from the...

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12 cases
  • Ft. Collins Mill. & Elevator Co. v. Larimer & Weld Irr. Co.
    • United States
    • Colorado Supreme Court
    • December 6, 1915
    ... ... the Chamberlain ditch, taking its supply from the Cache la ... Poudre river to he headgate of its canal, some 2 miles down ... the stream. The plaintiffs in ... The Larimer County ... Canal No. 2 Irrigating Company [61 Colo. 52] and the New ... Mercer Ditch ... L. & C. Co ... v. Wilson, 38 Colo. 101, 88 P. 265; Handy Ditch Co. v. Louden ... Canal Co., 27 Colo. 515, 62 P ... ...
  • Holt v. City of Cheyenne
    • United States
    • Wyoming Supreme Court
    • January 14, 1914
    ... ... Sec. 639; Wallace v. Ditch Co., 130 Cal. 578, 62 P ... 1078; 3 Farnham on Water & ... 161, 76 Am. Dec. 472; ... Ditch Co. v. Irr. Canal Co., 27 Colo. 515, 62 P ... 847; Cole v. Logan, 24 ... water per second of time, for the purpose of irrigating the ... southeast quarter of the northwest quarter; the ... ...
  • Quigley v. McIntosh
    • United States
    • Montana Supreme Court
    • June 21, 1940
    ... ... "Gallagher" ditch, 100 inches, and the ... "Hanley" ditch, 70 ... [103 ... irrigating the lands belonging to them and described in their ... 784, 877, 878; Ft. Lyon Canal Co. v. Chew, 33 Colo ... 392, 81 P. 37; Becker v. e Creek Irr. Co., 15 ... Utah 225, 49 P. 892, 1119; Handy Ditch Co. v. Louden Irr ... Canal Co., 27 Colo. 515, 62 ... ...
  • Comstock v. Ramsay
    • United States
    • Colorado Supreme Court
    • June 2, 1913
    ... ... Ditch, some two or three miles down the stream. The evidence ... About the year 1878 an irrigating ... ditch, known as the Lower Latham, was constructed upon ... appropriations, we cite the following authorities: Handy ... Ditch Co. v. Louden Irrigating Canal Co., 27 Colo ... ...
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