New Mercer Ditch Co. v. Armstrong

• Citation: 40 P. 989, 21 Colo. 357
• Case Date: July 01, 1895
• Court: Supreme Court of Colorado

40 P. 989

21 Colo. 357

NEW MERCER DITCH CO.
v.
ARMSTRONG, Water Commissioner.

Supreme Court of Colorado

July 1, 1895

Appeal from district court, Larimer county.

Action by the New Mercer Ditch Company against John L. Armstrong, water commissioner. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

This action was to restrain the water commissioner of water district No. 3, in division No. 1, from interfering with the flow of water into the headgate of plaintiff's ditch. The complaint alleges that the plaintiff is the owner by purchase of priorities Nos. 1 and 8 to the use of water out of the Cache le Poudre river, the first of which entitles it to 24.81, and the latter to 8.7, cubic feet of water per second of time, both of which priorities were duly decreed to its grantor, Joshua Yaeger, in April, 1882, by the district court of Larimer county, in proceedings instituted under the acts of 1879 and 1881, providing for settling of priorities of right to the use of water for irrigation. The complaint charges that the defendant, as water commissioner, refuses to recognize the plaintiff's rights under the decree, and declines to turn into the headgate of its ditch the water which these priorities give, and which it needs to irrigate its lands. The first defense of the answer is a general denial. The second defense alleges, in substance, that the priorities mentioned were awarded to Yaeger to be used to irrigate only [21 Colo. 359] 120 acres of land by means of the Yaeger ditch, and that it never has carried, and never could carry, more than 2 1/2 cubic feet of water per second of time, and that the land intended to be irrigated thereby does not require for proper cultivation to exceed the said quantity. During all the times since, as well as before, the decree was rendered, all the residue of the waters of the stream is averred to have been diverted and continuously used by subsequent appropriators, whose rights the water commissioners have recognized in distributing water under the decree. The third defense alleges that Yaeger, the then owner of these rights, wholly and voluntarily abandoned them in the year 1882, and that since said time no use thereof has ever been made by him, or by any one claiming under him. A replication was filed, traversing these affirmative defenses of the answer. The court referred the cause to a referee, who heard evidence, made findings of fact, and stated conclusions of law therefrom, and reported the same to the court, accompanied by his recommendation that the complaint be dismissed. Among the findings of fact is one to the effect that, since the date of the decree, and up to May 18, 1891, when he attempted to sell and convey these rights to the plaintiff, Yaeger did not at any time divert or use water to exceed in amount 3.5 cubic feet of water per second of time, and, as to the excess, there was an abandonment by him, which thereafter had been legally appropriated by others. There was also a finding that, after Yaeger conveyed both these priorities to the plaintiff, the latter, before the beginning of this suit, reconveyed to him the 3.5 cubic feet of water, the same being, in amount, equal to the quantity which, and which only, he had at any time applied to beneficial use. From these findings the referee concluded, as a matter of law, that, as to any water in excess of 3.5 cubic feet per second of time, a failure by Yaeger to make any use of the same within a reasonable time after the original diversion [21 Colo. 360] should be treated as an abandonment. The court approved the findings of the referee, adopted his conclusions of law, as well as of fact, and entered a judgment dismissing the complaint, from which judgment the plaintiff appeals.

George W. Bailey and E.A. Ballard, for appellant. J.W. McCreery and Robinson & Love, for appellee.

CAMPBELL, J. (after stating the facts).

The controversy can best be presented by giving a brief statement of the contentions of the respective parties. The appellant asserts that the decree of the court awarding these priorities in 1882 is an absolute verity, and cannot be questioned in the manner attempted by the appellee; that the two years have elapsed since the date of the decree, within which time, upon a proper showing, it might be reviewed, as provided in the irrigation act, as have also the four years therein limited as the time within which priorities to the use of water might be established by appropriate actions existing previous to the passage of said act; that there never has been an abandonment of the rights decreed to Yaeger; and that no rights of subsequent appropriators have been injuriously affected by the sale of these rights to the plaintiff and the change of the place of diversion and use sought to be made by the plaintiff after its purchase in 1891. The appellee's position is that, while the decree is a verity, yet that it is so, as to the quantity of water, only to the extent to which the water has been applied to a beneficial use; and that the law under which the decree was rendered must be so interpreted, and the decree itself expressly so provides; that the rights of subsequent appropriators would be infringed, not by the sale of Yaeger's priorities, but by the change of the point of diversion and place of use attempted to be made by his grantee. [21 Colo. 361] The object of these...