Messenger v. Gordon

• Decision Date: 12 November 1900
• Citation: 62 P. 959,15 Colo.App. 429
• Parties: MESSENGER v. GORDON et al.
• Court: Colorado Court of Appeals

62 P. 959

15 Colo.App. 429

MESSENGER v. GORDON et al.

Court of Appeals of Colorado

November 12, 1900

Error to district court, Bent county.

Action by Kemron E. Messenger against Edward Gordon and others. From a judgment sustaining a demurrer to the complaint, plaintiff brings error. Affirmed.

Ezra C Nowels and John R. Smith, for plaintiff in error.

C.C Goodale, for defendants in error.

THOMSON J.

This appeal was taken from a judgment sustaining a demurrer to the complaint. The following is a copy of that pleading "The plaintiff complains of the defendants herein, and for cause of action alleges: First. That the defendants, and each of them, are residents of Prowers county, Colorado, and own and occupy land in said Prowers county under the irrigation canal known now as the 'Fort Lyon Canal Company Canal.' Second. That for the purpose of conveying water from said canal to their lands in Prowers county, Colorado, to irrigate same, and for water for domestic purposes, the defendants excavated and constructed or were interested with others in constructing, a lateral ditch upon the following described land in Bent county, Colorado, to wit, southwest quarter ( 1/4) of section one (1) in township twenty-two (22) south, of range forty-eight (48) west, in Bent county, Colorado; that said lateral ditch when first constructed was only about one foot in depth and two and one-half feet in width, and was of sufficient capacity to carry all the water necessary for their domestic use, and for the irrigation of their said lands; that since the construction of said lateral ditch the defendants, being owners thereof or therein, have negligently and wrongfully permitted the same to become greatly enlarged in width and depth by erosion caused by the flow of water therein; that said lateral ditch is now in many places of the width of fifteen feet, and of a depth of from three to five feet; that in other places said lateral is only three and one-half feet wide and three to four feet deep; that the bottom of said lateral ditch is very soft and swampy when the soil is damp from the flowing of water through said lateral ditch; that said defendants have negligently and wrongfully permitted willow bushes and cottonwood trees to grow in and upon the banks of said lateral ditch until said lateral has become obstructed in places, and the course changed several feet, and that the defendants have so negligently cared for and managed the said lateral ditch that the same has become and is dangerous and unsafe; that the course of said lateral through the land herein mentioned is generally from west to east, and from fifty to sixty feet north of the south line of said land above described, thereby leaving a strip of ground between said lateral and south line of said tract that cannot be used to pasture stock or for farming without crossing said lateral; that defendants, and each of them, have refused to change or permit the said lateral to be changed to the south line of said land, where same could be fenced at a trifling cost; that the land herein described is all well set to alfalfa, and has stock corrals, sheds, stabling, and stock scales erected thereon, and is used as a...