Nippel v. Forker

• Decision Date: 01 January 1897
• Citation: 9 Colo.App. 106,47 P. 766
• Parties: NIPPEL v. FORKER et al.
• Court: Colorado Court of Appeals

47 P. 766

9 Colo.App. 106

NIPPEL v. FORKER et al.

Court of Appeals of Colorado

January, 1897

Appeal from district court, Garfield county.

Action by Edward Nippel against William E. Forker, George H. Forker and Mrs. E.P. Gibson to recover damages, and to enjoin further trespass and injury to plaintiff's water reservoir. Judgment for defendants on cross complaints, and plaintiff appeals. Affirmed.

J.W Dollison, Hayes & Prentiss, and Perkins & Thompson, for appellant.

Ed. T Taylor, for appellees.

REED P.J.

Mrs Gibson is the widow of Eli P. Gibson. In the year 1885, Mr. Gibson and wife settled upon the unsurveyed land of the United States, on what had formerly been the Ute Indian reservation, the title to which had been obtained by treaty with the tribe. On the 22d day of April, 1885, the township within which the settlement was made was opened for settlement and occupation under the pre-emption act of 1841. By the terms of the Ute treaty, title could only be acquired by pre-emption and purchase at $1.25 per acre, the proceeds of sales to be a fund held in trust by the government for the benefit of the Ute Indians. It appears that the settlement of Eli P. Gibson was made November 5, 1884, and on the first day that the land office was open (April 22, 1885) he filed his declaratory statement in the United States land office. Owing to erroneous surveys, on the 17th of August, 1885, the land in the township was withdrawn by the government, and remained so withdrawn until June 29, 1893. Eli P. Gibson died October 28, 1887. His widow (appellee) remained upon and has continuously occupied the land filed upon by her former husband. On the day the land office opened (June 29, 1893), she filed a pre-emption claim in her own right upon the land,--and on the 7th of October, 1893, proved up upon the land, and received a receipt from the receiver of the United States land office. On the 1st day of July, 1881, William Forker settled upon the land adjoining that of Mrs. Gibson on the south. He made extensive improvements, put 100 acres under cultivation and remained in the possession and occupation of the land until October, 1888, when he sold his possessory right to William E. Graham, who entered upon and occupied the land until October 9, 1892, when he sold and delivered the possession to George H. Forker, who remained in the occupancy and possession, and on August 7, 1893, filed upon it, and on February 12, 1894, proved up, paid for it, and received a receipt from the receiver of the United States land office. Both the Gibson and Forker claims were extensively improved and cultivated after 1885, and in that year were inclosed by substantial fences on the exterior lines, but without a division fence between them. Upon the lands of Gibson and Forker was the bed of a lake or natural basin that filled with water from the melting of ice and snow. The water was retained by an elevation or natural dam at the lower end. It was in extent about 87 acres, 75 of which were on the Forker place, and 12 on the Gibson place. When not covered by water, it was swampy and unfit for cultivation. In 1885 the parties jointly cut a drain through it and the elevation at the lower end, reclaimed the land, and it became a meadow from which hay was cut annually.

Appellant's rights, as stated in the complaint, are as follows: "That since the first day of April, 1889, he was the owner of, and entitled to the possession and enjoyment of, a certain tract or parcel of land in Garfield county [description], containing 160 acres; that without irrigation no crops could be produced on said lands; without irrigation the whole of said land would be valueless; that, for said purposes of irrigation, plaintiff, on or about the 3d day of April, 1889, constructed a reservoir on the S.E. 1/4 of section 24, Tp. 6 S., R. 89 W., and duly filed in the office of the recorder of Garfield county a plat and statement of said reservoir site, claiming said land for reservoir purposes; that a portion of the land covered by the water stored in said reservoir is in section 19, Tp. 6 S., R. 88 W.; that, at the time of the location of said reservoir site, the survey of said Tp. 6 was suspended, and has ever since remained, and now is, suspended; and, by reason of said suspension of said Tp. 6 aforesaid, that portion of said reservoir site does not appear on said plat of said reservoir site." The land claimed by appellant lay below to the west of the claims of Gibson and Forker, 80 rods, two 40-acre tracts of vacant land lying between them. The map referred to as showing the plat and statement of the reservoir and the claim of appellant, which was filed in the recorder's office, is in evidence, made by J.C. Kune, a civil engineer. The reservoir, as shown, is about 600 feet long in greatest length, and 500 feet wide in greatest width; does not extend over the line of Gibson and Forker. Its upper end is 500 feet from the lower end of the old lake bed, and is platted as being entirely upon vacant public land. In the recorded statement filed, it was said: "All of said reservoir site lies in the N.E. 1/4 of S.E. 1/4 of section 24," etc.; clearly indicating the absence of any intention of appropriating any land of Gibson and Forker which was in sections 19 and 29. The reservoir, as platted and filed, covers about five acres. On August 1, 1889, appellant filed with the county recorder a supplemental or additional statement, not verified or accompanied by a map or plat, claiming "a reservoir site not exceeding 120 acres on Sec. 19"; and on the same date (August 21, 1889) he prepared and filed in the office of the county recorder "a notice to the world," "that he was entitled to the use, occupation, enjoyment, and possession of all that portion of the unsurveyed public domain included within the bounds of what was formerly sections 19, 20, 29, 30, 32, and 33 in township 6, and section 4 in township 7," etc., which included farms in the actual occupancy of parties who had been in possession several years, among them those of Gibson and Forker. This wholesale appropriation of 4,480 acres of land was, as claimed, for the purpose of irrigating his farm. In March, 1895, six years after his alleged appropriation, he testified: "I claim to own the water by appropriation and usage. In 1890 I used a little; in 1891 and 1892 I used most of it; and in 1893 I used a little. I never used all the water, because I am not prepared and fixed yet. I intend to take up a desert land claim as soon as I can get this suit settled; so I will need all the water, and more than there is there."

This action was brought by appellant to recover damages for an alleged trespass and injury to his reservoir by appellees. The alleged wrongs and injuries are stated as follows "That plaintiff has had the quiet, peaceable, and undisturbed possession of said reservoir and use of water collected therein at all times since the 3d day of April, 1889, until April, 1893. That Mrs. Tillie Gibson claimed that a portion of certain land claimed by her, and covered by said reservoir site, was overflowed, and threatened that she would endeavor to defeat plaintiff's right to hold and maintain said reservoir site, built a fence across said reservoir site, and is continuing to build fences across said reservoir site; and that she forbade plaintiff the right to enter upon said land so occupied as said reservoir, to take care and protect the same; and that she (the said defendant) has conspired and is now conspiring with the said W.E. and George Forker, the other defendants herein, and others, to injure and destroy said reservoir, and to deprive said plaintiff of the use of the waters collected and stored therein, by causing a great quantity of water to be discharged into plaintiff's reservoir. That the claim of Mrs. Tillie Gibson is subsequent and subject to plaintiff's reservoir right. That on or about the 2d day of April, 1893, William E. Forker and George Forker, two defendants herein, constructed a dam above the lower part of said reservoir, with the knowledge of said Mrs. Gibson, and upon the land claimed by her, in such a poor and temporary manner as to be unsafe and insufficient to hold the water collected thereon; and that after said dam was so constructed, and was about filled with water, it gave way, and discharged a large volume of water into the lower part of said reservoir of plaintiff, causing the damage thereto. That said dam was constructed solely for the purpose of destroying plaintiff's reservoir, and depriving him of the use of the water. That neither said William E. Forker nor George Forker had any interest in or to any land embraced in said reservoir, and said dam was built by said Forkers against the protest of plaintiff. That a further trespass was committed on the 27th day of April, 1893, by the interference with the reservoir outlet, which caused a great loss of water out of said reservoir. That, by reason of the premises, plaintiff was damaged in the sum of $200. That defendants have threatened to and will continue said acts complained of against plaintiff's reservoir. That plaintiff cannot obtain water from any other source to irrigate his land, and, without water to irrigate it, said land is valueless. That defendants are insolvent, and have no property out of which an execution could be satisfied. That plaintiff's only remedy is by injunction. Plaintiff prays judgment against defendants for the sum of $200 damages, costs of suit and injunction." On May 24, 1893, appellant filed the following supplemental statement as an addition to his former complaint: "That since filing complaint on the 11th day of May, 1893, and service of summons, one of the defendants, Mrs. Gibson, disregarding plaintiff's rights in his reservoir...