New Brantner Extension Ditch Co. v. Kramer

• Decision Date: 01 June 1914
• Docket Number: 7047.
• Citation: 141 P. 498,57 Colo. 218
• Parties: NEW BRANTNER EXTENSION DITCH CO. v. KRAMER et al.
• Court: Colorado Supreme Court

141 P. 498

57 Colo. 218

NEW BRANTNER EXTENSION DITCH CO. v. KRAMER et al.

No. 7047.

Supreme Court of Colorado, En Banc.

June 1, 1914

Appeal from District Court, City and County of Denver; H. C. Riddle Judge.

Action by the New Brantner Extension Ditch Company against John Kramer and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

John T Jacobs and H. N. Haynes, both of Greeley (Platt Rogers, of Denver, of counsel), for appellant.

Milton Smith and I. N. Stevens, both of Denver (C. J. Blackeney, of Denver, of counsel), for appellee City and County of Denver.

J. C Helm, of Denver, for other appellees.

HILL, J.

A general demurrer to the amended complaint was sustained. The plaintiff elected to stand upon this complaint, and brings the case here for review. The complaint is voluminous. In substance, it sets forth the history of a certain irrigation canal, including its enlargements and extension by the predecessors of the plaintiff under a contract with certain of the defendants and the heirs, grantors, etc., of others who were the former owners of the canal. It is alleged that, under this contract, the possession and use of the canal in perpetuity was conveyed and turned over to the predecessors of the plaintiff, their assigns, etc., under certain conditions, among which it was provided that there should be at all times left in the canal for the use of the defendants, their heirs, grantors, etc., during the season when water is carried, etc., at certain places, etc., not less than certain amounts of water. A copy of the contract is set forth relying thereon; a full compliance with its terms, the expenditure of large amounts, the development and irrigation of a large tract of land, etc., are alleged. It is then alleged that each year thereafter and since 1880 that the waters carried through the canal were of certain amounts, and, with the exception of certain amounts delivered to the defendants or their predecessors, has been used for the irrigation of lands belonging to the predecessors of the plaintiff and the plaintiff's stockholders, upon whose behalf the action is also brought, in the aggregate of about 6,000 acres. It is alleged that the term 'inches of water,' at the time of the execution of the contract, was an indefinite phrase popularly used to designate the number of square inches in a cross-section of flowing water, without reference to grade, etc., and that the phrases '288' and '2,592,' used in the contract, were selected to indicate twice the number of square inches in a cross-section of a square foot of flowing water. Numerous allegations of facts are set forth, as tending to show what the parties meant by the terms used concerning the different amounts of water to be supplied the original owners of the canal, when to be supplied, the uses to be put, etc. The alleged uniform usage and practice followed by the parties and their successors ever since the execution of the contract and up to just before the bringing of this action are set forth. These are intended to disclose the construction placed upon the contract by the parties to it and their grantors, etc., at and from the time of its execution down to just before the bringing of this suit. These alleged facts include the assent and acquiescence of all parties at any time interested to a certain construction which gave to the defendants and their predecessors the right to have delivered to them, if and when needed for domestic purposes and the irrigation of certain lands, not more than 18 cubic feet of water per second of time, and to the predecessors of the plaintiff, and its stockholders, the possession of the canal and the right to all waters to be obtained therein by virtue of its original construction, enlargement, decrees secured therefor or otherwise, save and except the amount required to meet the needs of the defendants, etc., as called for in the contract, not to exceed the maximum amount of 18 cubic feet per second of time. It is alleged that such facts, consent, acquiescence, and recognition of all parties have continued and been maintained for 29 years last past. It is then alleged that notwithstanding all of these facts, that just prior to the bringing of this action, and never before, that most of the defendants wrongfully claim that by virtue of said contract and the rights reserved thereby, although contrary to its intent and meaning and the uniform construction placed thereon by usage, etc., that they, in the aggregate, are entitled to more water in the canal than belongs to them; that they wrongfully claim to own certain portions of the water and interest in the canal, which, in fact, belong to the plaintiff and its stockholders; that they cannot agree among themselves to the extent of such ownership in the aggregate; that some claim it is one amount, viz., 67.5 second feet, others a different amount, and others still a different amount. In addition to these alleged claims, sundry and different threats and alleged wrongful acts of the defendants are set forth, such as the different individual claims of ownership, the threat to sever the water rights under such claims from the land under the ditch, to sell and convey same with intent to cause it to be changed in point of diversion to other ditches, and without sale to make changes of all water decreed to said ditch by virtue of its first three priorities, and to claim 20.7 second feet out of its fourth priority, that, if the defendants are not restrained, the plaintiff and its stockholders will suffer irreparable injury and be deprived of water of great value, etc., and that, unless restrained, the defendants severally will, as some of them have threatened, execute written conveyances or instruments wrongfully purporting to sever all water rights above set forth from the lands to which they are appurtenant, and will assert and claim the right to convey in fee simple senior and prior appropriations of said ditch in the aggregate to the extent of 67.5 second feet, or at least of 47 second feet, and will cause the instruments to be placed of record, etc., thereby further clouding the title of plaintiff as trustee for its stockholders, all of which will depreciate the value of its property and stock, and, unless restrained and plaintiff's title to its water be determined, the defendants will severally institute suits to obtain decrees, change point of diversion, or cause their proposed vendees under the said proposed conveyances to institute such proceedings severally which will cause plaintiff and its stockholders great and irreparable damages, unnecessary loss, a multiplicity of suits, etc. The prayer is to restrain the sundry acts as threatened, and that decree be entered defining and construing the respective rights of plaintiff and defendants, that the interests of the defendants and the plaintiff be decreed to exist as alleged, and that the plaintiff's title be forever quieted, and for general relief.

Stripped of its historical narrations and allegations of evidence, the complaint attempts to state a cause of action as a bill in equity to quiet the title of the plaintiff in and to its use under certain conditions for certain purposes of a canal and the right to certain portions of the water to be derived through the same. That a bill of this character will lie to quiet title to water rights and to enjoin any interference with them is well settled in this jurisdiction. Kimball v. Northern Colo. I. Co., 42 Colo. 412, 94 P. 333; Town of Sterling v. Pawnee D. E. Co., 42 Colo. 421, 94 P. 339, 15 L.R.A. (N. S.) 238; Cooper v. Shannon, 36 Colo. 98, 85 P. 175, 118 Am.St.Rep. 95; Gutheil P. I. Co. v. Montclair, 32 Colo. 420, 76 P. 1050; Bessemer I. D. Co. v. Woolley, 32 Colo. 437, 76 P. 1053, 105 Am.St.Rep. 91; Grand Val. I. Co. v. Lesher, 28 Colo. 273, 65 P. 44.

The plaintiff has attempted in its pleading to deraign its title by setting forth the contract under which it claims, and alleging the facts and circumstances under which it was executed, and the construction given to it by all parties to, or interested in, it for 29 years following its execution, in order to show what was intended by the language used, if, by so doing, it has alleged facts which disclose that it has no right or title to that which it claims, the demurrer was properly sustained. On the other hand, if there are sufficient material facts alleged to show that it is entitled to any portion of that which it claims, when considered in connection with the alleged acts of the defendants, it was not subject to a general demurrer.

The defendants contend: First, that the contract is unambiguous, and that its plain language discloses that the plaintiff does not own, and was not entitled to the use or enjoyment of, that which it claims, and, inasmuch as it bases its title on the contract, the execution of which it alleges, for this reason the demurrer was properly sustained; second, that if, in disregard of the terms of the contract, the plaintiff claims to hold the water by adverse possession on account of appropriating it to its own use for 29 years, it cannot do so, because by the terms of the contract the plaintiff has had sole possession and control of the ditch, which constituted a trust estate as trustee, which, under such circumstances, prevents it from acquiring title as against the defendants, and further because there is no allegation that the defendants acquiresced in the breach of trust by the trustee, and for this reason the demurrer was properly sustained.

In considering the first question, it is not our intention to place a construction upon the contract, or to consider its meaning further than to determine if the court was right in holding that it was unambiguous, and that...