Larimer & Weld Reservoir Co. v. Cache La Poudre Irrigating Co.
| Decision Date | 08 June 1896 |
| Citation | 45 P. 525,8 Colo.App. 237 |
| Parties | LARIMER & WELD RESERVOIR CO. v. CACHE LA POUDRE IRRIGATING CO. |
| Court | Colorado Court of Appeals |
Error to district court, Weld county.
Suit by the Cache La Poudre Irrigating Company against the Larimer & Weld Reservoir Company and others for injunction. Judgment and decree for plaintiff. The Larimer & Weld Reservoir Company brings error. Reversed.
A suit in equity brought by the Cache La Poudre Irrigating Company defendant in error, against the plaintiff in error and the Cache La Poudre Irrigating Ditch Company, the Dry Creek Ditch Company, and the Larimer & Weld Irrigating Company, for the alleged illegal diversion and appropriation of water from the Cache La Poudre river, and seeking to restrain the defendants by an injunction. The pleadings are very lengthy, being over 40 pages of printed matter. For the present purposes it will be sufficient to give the synopsis or digest of them only so far as defendant in error (plaintiff below), plaintiff in error, the Dry Creek Ditch Company, and the Larimer & Weld Irrigation Company are concerned. Defendant in error owned and operated a ditch or canal taking water from the north side of the Cache La Poudre river at a point in Larimer county, that runs in an easterly course, is about 27 miles long, covering for purposes of irrigation about 26,000 acres of land, a greater portion of which is in the county of Weld with a first priority over younger ditches of 110 cubic feet per second, dating October 25, 1870; a second priority of 170 cubic feet per second dating from September 15, 1871,--the two aggregating 280 cubic feet of water per second. A third priority was acquired in 1874, and a fourth in 1877, but the two latter are unimportant, as far as this adjudication is concerned. The Dry Creek Ditch Company owns the Dry Creek ditch, also taking water from the river on the north side, the head of such ditch being about 12 miles above the head of the ditch of the defendant in error,--such ditch having a priority of 11 2/3 cubic feet per second, dating June 10, 1861; second, of 14 5/12 cubic feet per second, dating October 21, 1870; a third, of about 12 cubic feet per second, dating September 15, 1873; and a fourth of 12 7/10 cubic feet per second, dating July 15, 1879. The Larimer & Weld Irrigation Company owns and controls a ditch known as the "Larimer & Weld Irrigation Canal," also taking water from the north of the river, about eight miles above the ditch of the defendant in error, with priorities as follows: June 1, 1864, 3 cubic feet per second; April 1, 1867, 16 2/3 cubic feet per second; September 20, 1871, of about 75 cubic feet per second,--with later appropriations unnecessary to be considered. The Larimer & Weld Reservoir Company, plaintiff in error, a corporation composed of persons taking water from the canal of the Larimer & Weld Irrigating Company, constructed a reservoir on a site known as "Terry's Lake," covering 410 acres, with the intention of storing water, in times of scarcity, to discharge the same into the canal of the Larimer & Weld Irrigation Company, by it to be conveyed and delivered to the stockholders of the plaintiff in error, who were also stockholders of the Larimer & Weld Irrigation Company. The water to supply such reservoir is taken from the Cache La Poudre river, through the Dry Creek ditch, by which it is carried nearly due north about 3 1/2 miles, where it is discharged into the bed of Dry creek, which it follows easterly nearly a mile, where a dam is built. From the dam it is carried north by a short ditch, and discharged into the reservoir. It will therefore be seen that whatever water is taken from the river to supply the reservoir is diverted at a point some 12 miles above the ditch of defendant in error, and by being discharged from the reservoir into the canal of plaintiff in error, which passes to the north of the head of the ditch of defendant, when it reaches that point, about 4 1/2 miles, and the two ditches running nearly parallel in their easterly course at the same or greater distance apart, would in no way reach or benefit defendant in error, or any lower proprietor, but would be, for all purposes, permanently diverted. The right of plaintiff to receive water from the river, except at times when there was an excess, is based upon the alleged ownership of 3 1/4 shares of the capital stock of the Dry Creek Ditch Company, by virtue of which it was entitled to over one-eighth of the entire water carried by such ditch, and alleging that all the water of the ditch had been, from the time of its construction, and still was, divided among its stockholders pro rata. Of the 3 1/4 shares, 1 1/4 were purchased from P.P. Black and Peter G. Terry. That the water represented by such shares had been applied and used for irrigating land subsequently embraced in, and covered by, the reservoir of plaintiff in error. The other two shares were purchased from N.C. Alvord, who owned three shares in the ditch. That he had owned them since 1880. That one share was sufficient for the land he had under the ditch. That the water represented by the two shares had been used every year. When not used by himself, he had rented it to other parties. A large mass of evidence was taken, only conflicting upon two or three points, which will be noticed hereafter. The court found for the plaintiff in error as to the 1 1/4 shares purchased from Black & Terry, and decreed its right to divert that amount of water, and transfer it to the Larimer & Weld canal, for the benefit of stockholders of plaintiff in error, and against plaintiff in error as to the water from the two Alvord shares, and enjoined it from diverting water represented by them. To reverse the latter finding the judgment and decree are brought here for review.
H.N. Haynes, for plaintiff in error.
Jas. E. Garrigues, for defendant in error.
REED P.J. (after stating the facts).
Taking up the questions of fact where the evidence was conflicting I find that the allegation following, contained in the replication: "(8) That at the time said defendant claims it became a consumer of water from said Dry Creek ditch, in 1891, by the alleged sale or transfer mentioned in said paragraph six of its answer, or in any manner or at any time, the water then and now so claimed by it is the excess and difference in part between the amount actually needed and used by the lawful consumers of water from said ditch for a beneficial use and purpose, and the amounts mentioned in said decree, and was abandoned and unused by said company and its consumers, for any beneficial use and purpose, before this defendant became a consumer therefrom,"--or that part of it necessary to be regarded, viz. that the water carried by the ditch was in excess of the requirements of the land under it, "and was abandoned and unused by said company and its consumers, for any beneficial purpose, before this defendant became a consumer therefrom," was not sustained by the evidence, but on the contrary, so far as the water in controversy was concerned, that prior to the purchase of the shares by Alvord, in 1880, and from the construction of the Dry Creek ditch, the water represented by such shares had been used for irrigating by his grantors, and that the same had been used for the same purpose during his ownership, from 1880,...
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