Nippel v. Forker

• Decision Date: 08 February 1899
• Citation: 56 P. 577,26 Colo. 74
• Parties: NIPPEL v. FORKER et al.
• Court: Colorado Supreme Court

56 P. 577

26 Colo. 74

NIPPEL v. FORKER et al.

Supreme Court of Colorado

February 8, 1899

Error to court of appeals.

Action by Edward Nippel against William E. Forker and others. Judgment for defendants was affirmed by the court of appeals (47 P. 766), and plaintiff appeals. Affirmed.

Thompson Perkins & Thompson and C. E. & F. Herrington, for appellant.

Edward T. Taylor, for appellees.

CAMPBELL C.J.

This action was decided in favor of the defendants below (the appellees here) by the district court of Garfield county, and its judgment was affirmed by the court of appeals, whose opinion is reported in 9 Colo.App. 106, 47 P 766. The action relating to a 'freehold,' in the sense of the term as employed in our court of appeals act our jurisdiction has been properly invoked by the plaintiff below, the appellant in the court of appeals, to review the judgment of the latter tribunal. The pleadings give a tolerably clear notion of the nature of the controversy which, we are constrained to say, appellant's original brief does not materially tend to elucidate. The conceded facts, and as found by the trial court, which the evidence supports, may thus be stated: The land in controversy, originally part of the Ute reservation, is situate in Spring Valley, Garfield county, Colo. This valley is about a mile wide, lying in a basin on the mesa near the town of Glenwood Springs. It is comparatively level, sloping to the westward, being drained at the west end by a deep ravine, called 'Red Cañon.' Near the lower end, and above the head of the cañon, there is a slight elevation of the land, about eight feet high at the highest point. William E. Forker made the first settlement in this valley in July, 1881, long before the government survey, filing upon a 160-acre tract as a pre-emption, and continuously occupied and cultivated it until November, 1888, when he sold his possessory rights to one Graham, who continued in the possession and cultivation of the tract for about four years, when he sold his possessory rights only to the appellee George H. Forker, who continuously thereafter occupied and cultivated the tract until the present time. In November, 1884, E. P. Gibson, the deceased husband of the appellee Tillie Gibson, settled in the valley, and located, under the pre-emption laws, a quarter section of land adjoining that of Forker. At this time the land had not been surveyed, and it was not thrown open for filing until April, 1885, on which day William E. Forker and E. P. Gibson made their pre-emption declaratory statements for their respective claims, and surrounded both tracts with a good, substantial fence, and the same have remained thus inclosed from that time until the present. In August, 1885, the survey of this township was suspended by order of the commissioner of the general land office on account of an erroneous survey, and it remained suspended for nearly eight years, or until June 29, 1893; Gibson, Forker, and the successors of their possessory rights, in the meantime continuing the occupation and cultivation of their respective claims. In October, 1887, Gibson died, and his widow continued to occupy what was formerly his pre-emption claim, and cultivated the same, intending to file upon it as a pre-emption in her own right as soon as she could do so under the rules and regulations of the land department. This she did on the 29th of June, 1893, and on October 7, 1893, proved up on the land, and obtained the receiver's receipt therefor. George H Forker, being in the possession of his tract, filed on it August 7, 1893, and on February 12, 1894, proved up and got a receipt from the receiver of the land office. In order to draw off from these two tracts of land the water, from melting snow and natural drainage, that flowed and stood upon them, the occupants, in 1882, jointly dug a ditch through the elevated portion at the lower end of the valley, by means of which such water was carried, ultimately, down the cañon. In April, 1889, while these two tracts of inclosed land were in the possession and occupancy of the respective claimants, Edward Nippel, the plaintiff, began the construction of, or selected a site for, a reservoir upon public lands of the United States lying in the valley west of the land and ditch claimed by the defendants, for the purpose of impounding water to use for irrigating agricultural crops on lands owned, or to be acquired, by him lying further down the valley. He prepared a statement and a map of this reservoir and its accompanying ditches, which he filed with the county clerk and recorder of Garfield county, and apparently proceeded as if seeking to acquire a priority of right to the use of water for purposes of irrigation, under the state statutes applicable thereto. The reservoir, as originally planned, was wholly upon the unoccupied public domain, and covered about four or five acres, and in no wise interfered with the defendants' claims. In August, 1889, Nippel conceived the idea of enlarging his reservoir, and prepared and signed a notice, not verified, but acknowledged before a notary public, claiming therein the right to use, for reservoir purposes, several thousand acres of the unsurveyed public domain in Spring Valley, including the lands claimed by these defendants. We do not understand from the record that, as a matter of fact, he enlarged his reservoir to cover the lands described; but it seems that he did spend some money in running a ditch to draw the water from it, but if he made a beneficial application of the water through his ditch, and, if so, to what extent, the evidence in this record fails to show it. After the passage of the act of congress of March 3, 1891, in regard to right of way for ditches, reservoirs, etc., on the public domain, Nippel attempted to perfect his rights under its provisions, and, in pursuance of such intention, prepared a map and statement of his reservoir and ditches, in which his claims are fully set out. Therein he declares that he makes the filing in order to get the benefit of the act of 1891, and he also claims the benefits of sections 2339 and 2340 of the Revised Statutes of the United States. He filed this map and statement in the local United States land office at Glenwood Springs on August 11, 1893, and the same was approved by the secretary of the interior, October 18, 1894, subject, however, to the right of way of the Glenwood High Line Railroad and all other valid existing rights. At the time Nippel began the construction of his small reservoir, the defendants notified him not to interfere with their inclosed land, and until a short time before the beginning of this suit none of his acts caused any injury to it. Shortly before the beginning of this action, by enlarging, or raising the dam of, his reservoir, the plaintiff caused the water from it to be set back through their ditch and cover a number of acres of land claimed by these defendants, and they thereupon cut the dam, and did other acts, so that the water thus backed up on their lands was allowed to pass off, and the plaintiff thereupon brought this action to enjoin the defendants from further like interference with his reservoir, which they threatened. In the separate answers were cross-complaints asking affirmative relief restraining the plaintiff from any acts in connection with his reservoir which would cause the water therefrom to cover defendants' lands.

1. Very much of the argument of both parties here has been upon propositions of law not germane to the real questions involved under the facts of the case. It is unquestionably true that a settler upon the public domain, who has taken steps under the pre-emption law to acquire title to public land, acquires no vested rights as against the United States prior to his full compliance with the laws relating to its disposition and the payment of the purchase price of the land; but it is equally true that one who, in good faith, goes upon the public land, and seeks to obtain title under the public land laws, has, as against a subsequent claimant, certain rights which...