Hoge v. Eaton
| Decision Date | 27 February 1905 |
| Docket Number | 4,368. |
| Citation | 135 F. 411 |
| Parties | HOGE et al. v. EATON et al. |
| Court | U.S. District Court — District of Colorado |
N. E Corthell, for plaintiffs.
James W. McCreery, John T. Jacobs, and S. C. Downey, for defendants.
The bill was filed by six natural persons residing in the valley of Sand creek, in the state of Wyoming, and two corporations organized in Wyoming, against Benjamin H. Eaton and Bruce G Eaton, citizens of Colorado, and the Divide Ditch Company, a Colorado corporation. Three natural persons-- George Rintoul August Wurl, and Robert Ferguson-- were made respondents, but were not served with process. August Wurl appeared, and answered the bill. The issue made by him is entirely apart from the issue made by the other respondents, and has not been the subject of controversy in the suit. No decree will be entered as to him.
The prayer of the bill is to restrain the diversion of water from Sand creek within the state of Colorado. The source of Sand creek is in the mountains of Colorado, whence its waters flow in a northerly direction into the Laramie river, in Wyoming. The length of the stream is about 15 miles in each of the states of Wyoming and Colorado, or 30 miles in all. Complainants charge that their grantors first settled upon Sand creek in the then territory of Wyoming, and began the use of water from Sand creek in irrigating their lands in the year 1867.
In times of high water the stream overflowed its banks, and considerable tracts of land adjacent to the stream were irrigated in this way so as to produce good crops of hay. The first settlers confined their operations to cutting hay from the overflowed lands and to the use of the higher lands for pasturage. Within the decade from 1870 to 1880 the waters of the stream were diverted by means of short ditches to other lands, and perhaps also to the overflowed lands, to be used in dry seasons. Afterwards longer ditches were made so as to cover considerable tracts of land much higher than the stream, but not very far from its channel. The channel of the stream is shallow. In some places the banks are higher than the adjacent land, so that it is easy to divert the water. In general, the lands irrigated are in a state of nature, and produce hay or pasturage only, but some small tracts have been plowed in which other crops are cultivated. In all about 5,000 or 6,000 acres are under cultivation by complainants in the valley of Sand creek in the state of Wyoming. In dry years there has not been sufficient water in Sand creek to irrigate all of complainants' lands, and usually the water has been exhausted, so that none reached the Laramie river. Some of the complainants use certain lakes near the lower course of the stream for impounding the water, and take out such water when the stream fails in the end of the summer.
The year 1902 was exceptionally dry, and the supply of water in Sand creek was not sufficient to irrigate complainants' lands and the lands of other persons residing in the valley of Sand creek in the manner and to the extent which had been practiced in the years preceding and since the settlement of the country. The Divide Ditch Company, under the control of the Eatons, who were stockholders and officers of that company, opened a ditch which had been previously constructed between Sand creek and Sheep creek, and by means thereof turned the greater part of the water from Sand creek into Sheep creek. One witness says that more than one-half the water flowing in Sand creek was taken, and, if there is a more definite statement of the quantity taken, the court has not discovered it. The water left in Sand creek after the diversion seems to have been used by irrigators residing in Colorado below the point of diversion, so that none went down to complainants, and they lost their crops from want of water to irrigate them.
This bill was filed November 8, 1902. It sets forth the character of Sand creek, its length and course, and the appropriation of its waters for the purpose of irrigating the lands adjacent to the stream by complainants and their grantors in the years between 1867 and 1890. Proof was made of these facts. Indeed, the settlement of the lands and the appropriation of the waters of Sand creek seems to be the only subject referred to in the testimony. Respondents have offered no proof concerning their title or right to take the waters of Sand creek. In their answer to the bill, and in that part of it which is called 'a further answer, defense, and cross-complaint,' they give some account of the Divide Ditch Company, and state that it is the owner of certain ditches described in a paper filed by one Philip Wilson in the office of the State Engineer of the state of Colorado on the 22d day of July, 1897. The affidavit is set out in the answer, and is followed by the statement that the ditches therein mentioned were constructed. As to the use made of the water taken from Sand creek, the answer contains this averment:
'That the water so appropriated and diverted by the Divide Ditch Company from Sand creek and its tributaries as aforesaid, and the other ditches connected therewith, is thence run down into Sheep creek and from Sheep creek into the North Fork of the Cache la Poudre river; thence into and through the 'North Poudre Ditch,' so called, and into sundry large storage reservoirs connected therewith; that, after being so stored, the water is drawn off and to be drawn off for the benefit of the stockholders of the said the Divide Ditch Company and others having contractual rights therewith for water rights for the irrigation of land in Larimer and Weld counties, state of Colorado.'
Thus it appears that the waters of Sand creek, a tributary of Laramie river in the state of Wyoming, are taken by defendants into the North Poudre river, a tributary of the South Platte river in the state of Colorado, for irrigating lands in the counties of Larimer and Weld in the state of Colorado. From the point of diversion on Sand creek complainants' lands are nearly north a distance of perhaps...
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