McClellan v. Hurdle

• Decision Date: 22 May 1893
• Parties: McCLELLAN v. HURDLE et al.
• Court: Colorado Court of Appeals

33 P. 280

3 Colo.App. 430

McCLELLAN v. HURDLE et al.

Court of Appeals of Colorado

May 22, 1893

Appeal from district court, Weld county.

Action by William McClellan against Edgar F. Hurdle and others to have certain water rights declared, and for an injunction. Judgment for defendants. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by REED J.:

Appellant was the owner of, or in the legal possession of, 400 acres of land in Weld county. In July, 1886, he filed the necessary papers to secure his right, and subsequently excavated and constructed a ditch from Lone Tree creek to irrigate his land. The description of the stream or watercourse from which water was taken is given in the complaint as follows: "(2) That the said Lone Tree creek is a natural stream taking its rise near Granite Pass, in the state of Wyoming, and flows southeasterly through Weld county, Colorado, and empties into the Cache La Poudre river. That said Lone Tree creek has its rise in, and is fed by melting snows, seepage, surface and subterranean drainage. That the said stream, at times and places, flows above the ground, in an open channel, and, at other times and places below the surface, as a subterranean current. The surface water and underflow of said stream are connected and coexist. That at certain times of the year the surface flow prevails throughout the whole course of the said stream, which is at all times plainly marked; the course being indicated by a channel consisting of banks and sides, and by rank vegetation in places, indicating the place and presence of the subterranean channel." It is also alleged that appellant's rights and appropriation of the water were prior to any rights of appellees, who were owners and occupants of land lying above that of appellant on the same stream. The injuries complained of are stated as follows: "That about the month of June, 1889, said defendants sank a well, and put in an irrigation pump, at or near the northwest corner of his said lands, and at or near the bank of said Lone Tree creek, and put the same in operation for the irrigation of their lands, and have since continued to operate the same. That defendants have taken and drawn off the underflow of water in said creek by means of said pump, thereby depreciating the flow of water in said creek at the point where plaintiff's head gate is located, and diminishing the supply of water to which he is entitled, and has heretofore appropriated. That defendants have since that date further diverted the flow of water of Lone Tree creek to their own advantage, and the damage of plaintiff, by placing dams in the channel above plaintiff's head gate thereof, and turning the waters of said stream into their well, and into ditches constructed by themselves and others aforesaid, and using the same upon their said lands. That by reason of said acts and doings of defendants in diverting the said subterranean and surface flow of said stream to their own use, and in denial of the rights of plaintiff, plaintiff is damaged in the sum of five thousand dollars. (5) That the said defendants have since said last-mentioned date hitherto maintained, and still do maintain, said well, dams, and ditches, and pumping arrangements, for the diversion of the waters flowing in said Lone Tree creek, and threaten, during the irrigating season of 1891, to continue the diversion and use of said waters. That, as plaintiff is credibly informed and believes, the defendants are now engaged in sinking wells to reach said subterranean channel, and putting other pumps therein, and on the said described lands, for the avowed purpose of drawing off and diverting the waters of said stream to their own use, which, if done and consummated, will result in the further injury and damage to this plaintiff." Then prays that his appropriation of water, to the extent appropriated, be declared prior to that of appellees, and asking for an injunction restraining the pumping, use, and application of the water by appellees. By the answer it is denied that Lone Tree creek, or any portion of it, "flows beneath the ground as a subterranean stream, and is connected with its surface flowage, and that they coexist." Admits the sinking of the well, and the use of an irrigation pump to raise the water for purposes of irrigation. "Denies that defendants have taken and drawn off the underflow, as alleged in said complaint, or in any way interfered with the flow of said stream, by means of said well and pump, or otherwise, so as to depreciate the flow of water in said creek at the point where plaintiff's head gate is located, and to which he is entitled. Denies that defendants have since said date further diverted the flow of water of Lone Tree creek to their own use and advantage, and to the damage of plaintiff, by placing dams in the channel thereof, and turning the water of said stream into their said well, and into ditches constructed by themselves or others." A jury was had to try the issues presented, which was given the following instructions: "(2) The court instructs the jury that if you find, from the evidence, de...