Mabee v. Platte Land Co.

• Decision Date: 12 May 1902
• Citation: 68 P. 1058,17 Colo.App. 476
• Parties: MABEE et al. v. PLATTE LAND CO., Limited.
• Court: Colorado Court of Appeals

68 P. 1058

17 Colo.App. 476

MABEE et al. v. PLATTE LAND CO., Limited.

Court of Appeals of Colorado

May 12, 1902

Appeal from district court, Arapahoe county.

Action by the Platte Land Company, Limited, against W.A. Mabee and another. From a judgment granting plaintiff the relief prayed for, and also granting defendants the relief claimed by them defendants appeal. Affirmed.

William T. Rogers, for appellants.

H Riddell, for appellee.

WILSON P.J.

Plaintiff the Platte Land Company, Limited, alleged in its complaint that it was the owner of certain described agricultural lands situate near the terminus of a ditch or canal owned and operated by the Northern Colorado Irrigation Company commonly known as the "High Line Ditch"; that it then was, and had been for a number of years, planting said lands in agricultural crops; that it was also the owner of certain water rights used for the irrigation of said lands and which had been and were conveyed to it through said High Line ditch and laterals constructed therefrom at a point above the terminus of the main ditch; that the defendants, who were also cultivating lands in the vicinity, had at numerous times, by shutting down the headgates and in sundry other ways, prevented the water from flowing into said lateral ditches, and thereby prevented plaintiff from receiving and using the water to which it was entitled. The prayer was for an injunction restraining the defendants from the commission of such acts as would interrupt the flow of water from said High Line ditch into or through said laterals, etc. The answer of defendants denied the allegations of matters of fact. For a third defense, and by way of cross complaint, the defendants averred that the High Line ditch discharged its surplus and waste waters into a natural drain or stream made by surface waters which ran through land owned by defendant William A. Mabee, the father of the other defendant; that in thus flowing through the lands of defendant such surplus water was washing away the banks and increasing the size of said drain, to his damage and injury; that upon complaint of this to the officers of the company owning the High Line ditch he was told by the president thereof that after such surplus or waste water was discharged from the ditch the company had nothing further to do with it, and that he (the defendant) could take and use it if he desired, as he pleased; that thereupon defendant built and constructed a ditch from the terminus of the High Line ditch to defendant's land, and thereby appropriated all the waste and surplus water discharged from the main ditch, and had since said time been using said waste water for the cultivation of crops upon his land; that plaintiff had upon divers occasions obstructed the flow of said waste and surplus water from the terminus of said High Line ditch. The prayer was that the defendant W.A. Mabee be decreed the first and prior...