Nesbitt v. Jones

• Decision Date: 13 October 1959
• Docket Number: No. 18344,18344
• Citation: 344 P.2d 949,140 Colo. 412
• Parties: Don NESBITT, Plaintiff in Error, v. Josephine Graham JONES, Russell Lee Jones, Frederick E. Post, Emmeline E. Post, the Pleasant Valley and Lake Canal Company, and all unknown persons who claim any interest in the subject matter of this action, Defendants in Error.
• Court: Colorado Supreme Court

Page 949

344 P.2d 949

140 Colo. 412

Don NESBITT, Plaintiff in Error, v. Josephine Graham JONES, Russell Lee Jones, Frederick E.

Post, Emmeline E. Post, the Pleasant Valley and Lake Canal

Company, and all unknown persons who claim any interest in

the subject matter of this action, Defendants in Error.

No. 18344.

Supreme Court of Colorado, En Banc.

Oct. 13, 1959.

William H. Allen, William C. Stover, Eugene E. Mitchell, Ft. Collins, for plaintiff in error.

Albert P. Fischer, Ward H. Fischer, Ft. Collins, William R. Kelly, Greeley, for defendant in error Pleasant Valley & Lake Canal Co.

DOYLE, Justice.

Plaintiff in error was plaintiff in the district court in an action in which he sought to quiet title to certain lands and water rights in Larimer County, Colorado. He named five defendants, but only one of these, the Pleasant Valley and Lake Canal Company, appeared and defendant. That company is a mutual ditch company incorporated in 1879. It holds decreed priorities from the Cache La Poudre River aggregating 57.15 cubic feet per second of time which are dated as early as 1861.

At the trial the parties stipulated that the only controverted issue was that of title to a certain undivided one-fourth interest in 300 inches of water granted by an instrument dated July 28, 1879 and duly recorded in Larimer County. Trial was to the court and the findings and judgment were in favor of the defendant. The court ordered dismissal of the plaintiff's complaint and held that the defendant had acquired title to the water in question by adverse possession. Plaintiff seeks review of this judgment.

There are two distinct rights which were conveyed by the Canal Company to Post. The first of these was by agreement dated July 28, 1879, in which the Canal Company agreed that four people, Swan, Post, Harrington and Blackstock, were to

'have and retain the right to take from said parties (sic) Ditch not exceeding three hundred inches of water at any and all times when said parties of first part shall so desire to do, said water to be used on the following land * * *'.

The plaintiff is the successor in interest to Post, and he claims a preferred 75 inches of water upon the basis of this agreement. The other right granted Post 150 inches of water and is not directly in dispute. This right was exchanged in 1928 for 5 shares in the Canal Company and that exchange transaction, to the extent that it bears on title to the 75 inches of water, will be discussed in detail hereinafter. This was acquired by Post individually as a result of a conveyance dated April 13, 1880, to him from the Canal Company and it seemingly resulted from work and labor performed by Post in the construction of ditches for the purpose of utilizing water from the Cache La Poudre River. The consideration for this was payment of $100 and the release by Post to the Canal Company dated July 26, 1879, which stated:

'I do hereby sell, give, grant and release unto the said Pleasant Valley and Lake Canal Company and their successors and assigns all the right, title and interest which I now have in and to any share, shares, privilege or surplus credit for and on account of any work or labor performed on account of the same in the irrigating ditch known and described as the Pleasant Valley Irrigating Ditch Company, and hereby give and grant to the said Pleasant Valley and Lake Canal Company the right to enter upon and enlarge the said ditch where the same crosses my land, hereby granting a perpetual right of way fifty feet wide for said ditch over and through my said land where said Pleasant Valley Irrigating ditch crosses my land.'

On the death of William M. Post his farm was inherited by his wife, Emmeline E. Post, and on her death in 1925 her daughter, Lillian E. Griffin, was the successor owner. Mrs. Griffin was declared a mental incompetent of February 24, 1926, and she continued in this status until her death in 1952. Harvey Griffin was the husband of Lillian E. Griffin and was Conservator of her estate and upon her death became Administrator.

On April 18, 1953, Harvey Griffin executed an Administrator's Deed conveying the farm to the plaintiff. As originally executed, the deed failed to mention water rights. However, a correction deed which was also dated April 18, 1953, provided:

'* * * together with all water and water rights, ditches and ditch rights, used in connection therewith or appurtenant thereto, and especially five shares of the capital stock of the Pleasant Valley and Lake Canal Company.'

Evidence with respect to disposition of the water here in issue is meager. The only document indicating recognition by the Canal Company of this right in Post is an entry in the minute book of the company for December 1, 1888, relating to assessment against holders of water deeds; it mentions an assessment against Post's right to 150 inches, that which was granted in 1881, and in addition, it specifies that the 300 inches held by Blackstock, Post, Harrington and Swan is excepted from the assessment.

Harvey Griffin was shown to have managed the farm after 1924, and he testified that in his belief the 150 inches of water was the only water right that Post owned. The witnesses for the company were unable to supply information as to whether the right to the 75 inches of water had been exercised prior to 1924. In the year 1928 Griffin, as Conservator for his wife Lillian, conveyed back to the company the 150 inch right and in return received $3,500, together with five shares in the Canal Company. The language of this grant is significant and it reads as follows:

'The water right appurtenant to the farm * * * which said water right consists of a perpetual right to use and enjoy 150 cubic inches of water per second of time for the irrigation of said premises of and from the canal of The Pleasant Valley and Lake Canal Company as and when water is available therefor under the decreed priorities of said company.'

Griffin testified that prior to this exchange the farm had ample water derived from the 150 inch right, but afterwards there was often a shortage of water and that the tenant complained of this shortage. It can be concluded from this that during the period that Griffin managed the farm for the benefit of his wife his assumption was that the only right the estate owned was the 150 inches or the five shares in the Canal Company. He said that he had never heard of any other right. The findings of the trial court are in part as follows:

'The evidence shows that plaintiff's predecessors in title never claimed such additional water right. This appears from the evidence although at times in the 26 years after the 1928 deed they needed more water and the tenant was clamoring for more. The stockholders of the Company, certainly for more than 26 years, were exclusively and continuously getting that water. The presumption follows that all right to additional water than that on the five shares of stock had been relinquished, either back to the Company, or in the deed to the City of Greeley in 1905, or by long lapse from non use as an appurtenance to the land in question.

'Neither in the Lillian Griffin administrators deed to the plaintiff, nor the Correction deed from her heirs is there included, in reciting the water rights sold, an undivided one-fourth (1/4) in 300 inches or a 175 inches of water additional to the five shares of stock. A search to find it enumerated there is in vain. Lillian Griffins personal representatives construed 150 inches at the full extent of the right derived through the 300 inches in the 1897 written instrument. Harvey Griffin acting as Conservator of her estate under order of the Court for Lillian Griffin sold the water right appurtenant to her lands to the Company and took in exchange therefor five shares of the Company stock, plus cash. That was on May 15, 1928, more than 25 years before this suit.

'Thenceforth Griffin's right was construed by him and by the Company as the water of five shares only. He never demanded more, nor was delivered more. The Company delivered all the Post and Griffin water to its stockholders. Water was scarce. Griffin's tenant was short and wanted more. The right claimed would be one preferred over that based upon shares. The silence to assert it, under the circumstances, discredits it.

'After 1928, certainly, the Canal Company shareholders had exclusive possession of all the Griffin water other than that delivered to the Griffin farm on the five shares.

'The Griffin tenant often complained he needed more than what the 5 shares gave Griffin in that 26 year period after 1928. For the duration of the adverse possession 18 year statute, and the 20 year statute no more was delivered. The other stockholders possession of the water was not interrupted or disturbed, even in the many intervening dry years, to suit brought. The drouth of 1933 and following years having occurred during this period.

'That there were many such short water years from 1928 to 1954 in the Poudre water supplies is a notorious fact of which courts take judicial notice. The Supreme Court alluded to it in another case of claim for water right under this same canal (Pleasant Valley & Lake [Canal Co.] v. Maxwell, 93 Colo. 73, 78 ).'

The trial judge was impressed with the fact that there was a complete dearth of evidence to show that Post or his heirs had ever asserted a right to the 75 inches of water, and from this concluded that waiver or estoppel had arisen and that the claim was stale. The court based its decision on the additional conclusion that there had been adverse possession for a period exceeding the several statutes of limitations and that this alternative basis also justified dismissal of the complaint. This is apparent from the final paragraphs of the conclusions:

'Here such construction by the parties, laches, estoppel and adverse use have occurred and barred the claim of the plaintiff to any water more than that under...