Mountain Supply Ditch Co. v. Lindekugel

• Decision Date: 14 April 1913
• Citation: 24 Colo.App. 100,131 P. 789
• Parties: MOUNTAIN SUPPLY DITCH CO. v. LINDEKUGEL.
• Court: Colorado Court of Appeals

131 P. 789

24 Colo.App. 100

MOUNTAIN SUPPLY DITCH CO. v. LINDEKUGEL.

Court of Appeals of Colorado

April 14, 1913

Appeal from District Court, Larimer County; James E. Garrigues Judge.

Action by August Lindekugel against the Mountain Supply Ditch Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Rhodes & Temple, of Ft. Collins, for appellant.

John J Herring, of Aztec, N.M., for appellee.

KING J.

From a verdict and judgment in favor of the plaintiff in the sum of $1,225, the defendant appealed.

The first question presented by the assignments of errors is that the complaint does not state a cause of action. No separate demurrer was filed, but the sufficiency of the complaint was challenged by a clause incorporated in the answer, and the attention of the court was first called to it after the jury had been impaneled and sworn to try the cause upon its merits. That practice has become customary in some sections of the state but is not to be commended, either as to the manner of pleading or the delay in presenting the issue of law. "It is a custom more honored in the breach than in the observance." It is dilatory and savors of obstructive tactics rather than of an attempt to reach trial on the merits. The demurrer was overruled, and no objection on the ground of insufficiency of the complaint was made to the evidence offered.

However faulty it may be, we think the complaint, as aided by the answer, which to some extent cured its defects, may be sustained. It is alleged, in substance, that defendant appellant here, is a mutual ditch company organized as a corporation under the laws of Colorado for the purpose of furnishing water to its stockholders for irrigation; that plaintiff was a stockholder of said corporation to the extent of 62 1/2 shares, and was the owner of 240 acres of land requiring irrigation, lying under defendant's ditches and reservoirs and having no other source of supply; that in the spring of 1907 plaintiff prepared and seeded to grain 178 acres of said land, and was entitled to and demanded water for its irrigation; that a small quantity was furnished in June, sufficient only to irrigate 40 acres once, and that thereafter defendant failed, refused, and neglected to furnish plaintiff any water; that it purposely and voluntarily diverted all the water stored in certain reservoirs for the express purpose of irrigating plaintiff's land, and the only reservoirs from which his land could be irrigated, from those reservoirs into other reservoirs and to other lands, by reason of which plaintiff's crops were destroyed or seriously injured. Defendant answered, denying its willful diversion of the water so stored, as alleged in the complaint, and alleged that it distributed the water in accordance with its regular custom, and to the best interests of all its stockholders, including the plaintiff whenever he was entitled thereto, and it had any water for the use of its stockholders, thus putting in issue the very matter which defendant contends was necessary to be pleaded in the complaint in order to state a cause of action.

The defendant company, having been organized for the purpose of supplying water to its stockholders by means of a ditch...