Norcross v. Cunningham

• Decision Date: 07 April 1913
• Citation: 54 Colo. 517,131 P. 428
• Parties: NORCROSS v. CUNNINGHAM.
• Court: Colorado Supreme Court

131 P. 428

54 Colo. 517

NORCROSS v. CUNNINGHAM.

Supreme Court of Colorado

April 7, 1913

Error to District Court, Larimer County; Harry P. Gamble, Judge.

Action by T. R. Norcross against John M. Cunningham. Judgment for defendant, and plaintiff brings error. Affirmed.

Rhodes & Farnworth, of Ft. Collins, for plaintiff in error.

Fred W Stow and Homer S. Stephens, both of Ft. Collins. for defendant in error.

HILL J.

Upon motion judgment on the pleadings was granted in favor of the defendant. The plaintiff's complaint alleges, in substance, that in May, 1906, he purchased from the defendant a farm situate under the Hillsoborough Canal, from which it requires water for its irrigation; that he paid $10,000 for the land and water to be conveyed therewith; that as a part of the consideration the defendant represented that there would be conveyed in the same warranty deed and in connection with the land, 125 inches of water in this canal; that this water was and would be a water right to said land for the entire irrigation season of each year; that it was of the earliest water appropriated from the Big Thompson river, the stream from which the canal received its supply; that certain crops, which could be raised and which made the farm especially desirable and very valuable, required late irrigation, and that the water rights which would be conveyed would furnish water during the late irrigation season to raise such crops; that relying upon defendant's representations with reference to the water to be conveyed and that was conveyed, he purchased said land and water and in May, 1906, received from defendant a warranty deed, which deed conveyed the land and 125 inches of water in one instrument; that upon receipt of the deed he entered into possession, began and has ever since continued to cultivate the farm; that after plaintiff took possession, defendant claimed that the water conveyed in connection with and for the irrigation of this land was simply a right to take water from this canal by reason of a contract entered into between the owner of the canal and other persons, which contract, through sundry conveyances had been conveyed to defendant; and that the defendant had only conveyed by his deed to plaintiff what was known as this water contract. The plaintiff further alleges that the canal company was under no obligations to furnish water under this contract, except when there was water in the canal derived from the Big Thompson river under an appropriation known as Priority No. 25, being of a late date; that he has been unable under and by reason of the water conveyed to him by said deed to obtain any water from this canal for the irrigation of this land, except in the early portion of each irrigation season, up to about July 1st; that after the 1st of July said water right so conveyed furnishes no water for said lands; that this condition has prevailed ever since the purchase, and it will so continue hereafter, except an intermittent amount during the early portion of the irrigation season; that by reason of these facts he cannot raise any crops upon the lands, except early crops; that the land without a water right furnishing water during the entire irrigation season, but only for the early portion, is of no value in excess of $5,000; that plaintiff has been injured damaged, and defrauded by the defendant through his false and fraudulent representations, etc., in the sum of $5,000, for which amount judgment is prayed.

In his answer the defendant, among other things, alleges that subsequent to the sale and in March, 1909, with full knowledge of all facts, the plaintiff instituted a suit etc., against the defendant by which he sought to have this deed for the land and the 125 inches of water decreed to convey as an appurtenance under the deed and to the land and as annexed to the land, a certain other 1.75 cubic feet of water which was a part of the canal's Big Thompson Priority No. 1; that in the same suit the plaintiff also sought to recover damages alleged to have resulted to him by reason of the alleged false and fraudulent representations made at the time of the sale pertaining to the water rights and upon account of his failure to procure the same; that, at the time of the commencement of the other suit, the plaintiff had full knowledge of all facts relative to his rights, etc.; that at the time there were two remedies open to him for the enforcement of his alleged claims arising out of the purchase of this land and water, which were, by claiming that he had received by this deed the 1.75 cubic feet of water above referred to and having it so decreed by the court, or that he had not received the water which he should have received by the deed, and recover damages against the defendant for failure to convey it;...