Mason v. Cotton

• Decision Date: 17 November 1880
• Parties: MASON and others v. COTTON and others.
• Court: U.S. District Court — District of Colorado

4 F. 792

MASON and others v. COTTON and others.

United States Circuit Court, D. Colorado.

November 17, 1880

Wells Smith & Macon, for plaintiffs.

H. M. &amp Willard Teller and Haynes, Dunning & Haynes, for defendants.

HALLETT D.J.

Plaintiffs own a flouring mill, situated near Fort Collins, in this state, which is operated by water obtained from the Cache-a-la-Poudre river, through a race about one mile and one-fourth in length. This mill and race have been used by plaintiffs and their grantors since 1872. In the summer of 1879 the Fort Collins Water-power Company one of the defendants, made another race or canal, parallel in its general course to that used by plaintiffs, and above the latter, so as to take water from the Cache-a-la-Poudre river at a point about one-fourth of a mile above the head of plaintiffs' race. In the same year one Joseph P. Watson, having obtained water-power from the Fort Collins Company erected a flouring mill on the line of that company's canal, about one-half mile above plaintiffs' mill, and 50 yards from plaintiffs' race. Obtaining power from a point on the river above the head of plaintiffs' race, the position of Watson's mill is such that the waters used in operating it may be delivered into plaintiffs' race, and flow thence down to plaintiffs' mill. When the Watson mill was completed and set in operation in September, 1879, this was done by agreement between Watson and plaintiffs, and both mills were run with the same water through the autumn of that year, and until business was suspended by plaintiffs in the early part of this year. It is said, however, that this use of the same water by both parties was attended with much difficulty in operating plaintiffs' mill, as the water came to them irregularly, and not in sufficient quantity to run the mill. Accordingly plaintiffs revoked the permission they had given to Watson to deliver his water into their own race, and insisted upon their right to take water from the river through their race, as they enjoyed it before the Fort Collins canal was taken out, and before the Watson mill was built. In the early part of this year defendant Carter Cotton purchased the Watson mill, and soon thereafter, in compliance with plaintiffs' demand, changed his tail-race so as to carry the water from his mill to the river under plaintiffs' race. It will be remembered, that, by some understanding or agreement between plaintiffs and Watson, the water from this mill was before that time delivered into plaintiffs' race, with a view to run plaintiffs' mill with the same water, and by this change such use was entirely abandoned. In August last it was found that the waters of the river were not sufficient to supply the races of both mills, and the defendant Carter Cotton, continuing to divert the same for the use of his mill, this bill was filed by plaintiffs in the district court of Larimer county, on the first of September, to restrain such diversion. An injunction was allowed in that court, and subsequently much testimony was taken by a referee before the case was removed into this court; and upon that evidence and the pleadings the present motion to dissolve the injunction is founded.

Upon all the...