Hottell v. Farmers' Protective Ass'n

• Decision Date: 21 March 1898
• Citation: Hottell v. Farmers' Protective Ass'n, 25 Colo. 67, 53 P. 327 (Colo. 1898)
• Parties: HOTTELL et al. v. FARMERS' PROTECTIVE ASS'N.
• Court: Colorado Supreme Court

53 P. 327

25 Colo. 67

HOTTELL et al. v. FARMERS' PROTECTIVE ASS'N.

Supreme Court of Colorado

March 21, 1898

Appeal from district court, Weld county.

Action by the Farmers' Protective Association against Benjamin F. Hottell and the Colorado Milling & Elevator Company for damages, and for a decree that plaintiff is entitled to the use of certain water and machinery. From a judgment and decree for plaintiff, defendants appeal. Affirmed.

On March 19, 1884, Benjamin F. Hottell was the owner of two adjacent tracts of land at Fort Collins, Colo., separated merely by an arbitrary line, situate upon one of which was a grain elevator; and upon the other, and near this elevator was a flouring mill. On the last-mentioned tract was a mill race, and at the end thereof an iron pipe line, into which water from the race flowed, and thence was discharged on to a water wheel connected with the mill machinery, thus furnishing the motive power for the mill; and, by a sprocket chain connected with said machinery, power was transmitted to the elevator. This wheel and the machinery and appliances were so affixed to the mill as to become a part of the freehold. On the day mentioned, Hottell, for a consideration of $20,000, sold and conveyed to the Farmers' Protective Association (the plaintiff below, and the appellee here) the land on which the elevator was situated, and the perpetual use of said water power, and all machinery necessary for applying power of the elevator; and the language employed in the grant of these rights is as follows: 'The use of water from that mill race known as the 'Mason and Hottell Mill Race,' perpetually, to furnish power to operate and run the elevator standing upon the premises aforesaid; also the perpetual right to the use of all the machinery necessary to the successful application and use of said water power to operate said elevator. To connect with chain running from the mill to the elevator.' There was also an agreement in the deed 'that, when the water power shall be insufficient to operate both the mill and elevator, the elevator shall have the preference and priority in the use of the same.' The deed, containing covenants of seisin, against incumbrances for peaceable possession and quiet enjoyment, and a warranty was duly placed upon record. In estimating the value of this property, the elevator itself was put in at $10,000, and the water right and use of machinery at a like sum. For a time after the conveyance, Hottell himself retained ownership of the mill, during which period the company was furnished by him with said water power and use of machinery. Afterwards, and on the 24th day of August, 1885, Hottell sold and conveyed to one Sloan the tract on which were said mill property, mill race, and machinery; and a few days thereafter Sloan, who, it seems, was acting as the representative of the defendant company, conveyed to it the same property, by a quitclaim deed containing no express assumption by the grantee of Hottell's obligation, if any, respecting the water power. On the 10th day of July, 1886, the mill and machinery in question were destroyed by fire. Immediately thereafter the defendant company erected another mill upon the site of the old one, finishing it in the latter part of the year 1886, or the fore part of 1887, and therein put new machinery for utilizing the water power. The second mill was destroyed by fire on the 5th day of October, 1895, and seems to have been replaced by a third one. The evidence is unquestioned that the defendant company, soon after it acquired possession of the property, while apparently admitting that there were some rights in plaintiff to the water power, nevertheless protested against the claim asserted by the latter to the use of that power and mill machinery. The evidence is also to the effect that both of these defendants, from about the 10th day of July, 1886, to the 5th day of October, 1895, denied to the plaintiff, and excluded it from, the use of said water power, and the machinery requisite to the successful application and use of the water power to run the elevator, and that they both refused the plaintiff access to said premises for the purpose of availing itself of such other means as it might employ to make application of said power. The evidence tended to show that at the time of its purchase the defendant company had actual, as well as constructive, notice of the contents of the deed, and of the plaintiff's claim to the use and benefit of the water power and machinery, and knew that the plaintiff had actually availed itself of such use from the time of the purchase down to the time of the defendant company's acquisition of the mill property, and of such use thereafter, for a short time, by permission of the local manager of the defendant company. This action was brought to obtain a decree adjudging plaintiff to be entitled to the use of water from the mill race, perpetually, to furnish power for its elevator, and the perpetual right to the use of all machinery necessary to the successful application and use of power for that purpose, and for an order requiring defendants to furnish such power, and permit the use of the same by the plaintiff without any obstruction, and to give the plaintiff the preference in its use whenever the same was insufficient to operate both the mill and the elevator. The plaintiff also claimed damages suffered by reason of its exclusion by defendants from the enjoyment of the rights claimed. After the overruling of a demurrer interposed by defendants, they filed separate answers. Trial was had to the court without a jury, and damages were awarded to the plaintiff in the sum of $6,000; and a decree was entered establishing plaintiff's right to the perpetual use of the power and machinery, and enjoining the defendants from interfering with the plaintiff's use thereof, and commanding them to furnish it with, and permit the plaintiff to enjoy, the same. To reverse this judgment and decree, the defendants prosecute this appeal.

W. C. Kingsley and O'Donnell & Smith, for appellants.

W. Henry Smith, Willis B. Herr, and E. A. Ballard, for appellee.

CAMPBELL C.J. (after stating the facts).

Of the two branches of this case, one relates to the money judgment. Quite independently of the other questions as to the duty of the defendants to furnish water power, it is clear that both defendants should respond in damages for the wrongs committed by them. It is here conceded that the plaintiff company had the right to the use of the mill race as the source of its water power, though the extent of the right as claimed is denied. The mill race was on the defendants' premises, and for a series of years they obstructed the plaintiff in the use of the original appliances for delivering power to its elevator. They denied plaintiff access to their premises, whereby it might have availed itself of other means of transmission. But, if such access had been permitted, it was valueless, because the defendants so built the second mill over the point of fall of water that its benefits could be untilized only in connection with the machinery of the mill. The plaintiff, thus excluded from its admitted rights, was obliged to, and did, through the instrumentality of a steam engine and its appliances, obtain a motive power for its elevator. The rule of damages adopted by the trial court was the reasonable cost to plaintiff of this steam power. Upon conflicting testimony, estimating this cost from 50 cents to $4 per day, the court awarded damages in the sum of $6,000. It is true that defendants make the point that the court erred in not limiting damages to the beginning of the action, but allowed a recovery to October 5, 1895, the time when the second mill was burned. This point might be good, were it not that, as recited in the findings and decree, the parties themselves stipulated that, if the court awarded damages at all, the time might be extended to the latter date. This finding as to the amount of damages, as well as all other findings of fact, as set out in the foregoing statement, is supported by the evidence, and conclusive upon us in this review.

2. The second branch presents much more important and difficult questions. For convenience, it may be resolved into two subdivisions, though examination of the one involves more or less consideration of the other. The first inquiry is, what rights did Hottell sell and convey to the plaintiff? The second, the...