North Boulder Farmers' Ditch Co. v. Leggett Ditch & Reservoir Co.

• Citation: 168 P. 742,63 Colo. 522
• Decision Date: 05 November 1917
• Docket Number: 8634.
• Court: Supreme Court of Colorado
• Parties: NORTH BOULDER FARMERS' DITCH CO. et al. v. LEGGETT DITCH & RESERVOIR CO.

168 P. 742

63 Colo. 522

NORTH BOULDER FARMERS' DITCH CO. et al. v. LEGGETT DITCH & RESERVOIR CO.

No. 8634.

Supreme Court of Colorado, En Banc.

November 5, 1917

Error to District Court, Boulder County; Robert G. Strong, Judge.

Action by the Leggett Ditch & Reservoir Company against the North Boulder Farmers' Ditch Company and the Boulder & White Rock Ditch Company, and others. To review a judgment for plaintiff, defendants bring error. Affirmed.

H. B. Tedrow, of Denver, and A. W. Fitzgerard, of Boulder, for plaintiffs in error.

F. S Luethi, of Boulder, for defendant in error.

HILL J.

This action was brought by the Leggett Ditch & Reservoir Company against the North Boulder Farmers' Ditch Company the Boulder & White Rock Ditch Company, and certain water officials. The objects were: First, to have the original decree for the waters in Boulder creek in district No. 6, division No. 1, bearing date June 2, 1882, corrected in certain particulars wherein it is alleged there are manifest clerical and arithmetical errors. Second, to have all waters awarded to the North Boulder Farmers' Ditch Company's ditch by virtue of said decree, in excess of 20 second feet, declared abandoned, etc. And, third, to have defendants enjoined from diverting or using any waters from Boulder creek on account of priorities Nos. 11, 20, and 24 awarded to the North Boulder Farmers' Ditch Company's ditch in excess of 20 cubic feet of water per second of time etc. The findings and decree were in favor of the plaintiff the defendant in error here. They include a finding that, since the entry of said decree in 1882, all the waters thereby awarded to the North Boulder Farmers' Ditch Company's ditch in excess of 48 cubic feet per second of time has been wholly disused and abandoned.

There are 57 assignments of error. For the purposes of argument, counsel have arranged them in seven groups, the most important of which is the one bearing upon the contention that the testimony is insufficient to support the finding of abandonment. For convenience we will refer to the North Boulder Farmers' Ditch Company as the 'Boulder Company' and its ditch as the 'Boulder ditch,' to the White Rock Ditch Company as the 'White Rock Company,' and its ditch as the 'White Rock ditch,' and to the Leggett Ditch & Reservoir Company as the 'Leggett Company' and to its ditch as the 'Leggett ditch.'

The record discloses that Boulder creek in its course through the city of Boulder crosses Twelfth street, which is carried over the stream by a bridge known as the Twelfth Street Bridge; that just below this bridge is a diverting dam and headgate through which water is taken from the creek into a common channel used by eight or nine different ditches; that this channel is usually referred to as Dry creek; that it runs nearly due east and that any considerable amount of water running into it from Boulder creek in its natural state would rejoin the creek about three miles below Twelfth street; that this channel may have been once the main channel of the creek; that the pioneers differ in remembering whether, when the white man first came, this channel was dry or carried a part of the flow of the creek, but all agree that it carried waters in time of floods. In Boulder Ditch Co. v. Hoover, 48 Colo. 343, 110 P. 75, in referring to this channel it is said:

'The evidence shows that the original Dry creek ditch was built by D. H. Nichols, in the early sixties, and that the original channel and diverting works were enlarged, from time to time, upon the construction of other ditches.'

Plaintiffs in error claim that the organizers of the Boulder Company were the first who employed this means of carrying any considerable amount of water, and for that reason they were exercising virtually a proprietorship over the water course and the water in it in the year 1874. The question is immaterial. It is agreed that prior to 1862 this natural water course was in existence. The court found that it was formerly a division or branch of Boulder creek. The record discloses that in 1862 a number of farmers owning land adjacent to it constructed a channel in it and the first headgate at the Twelfth Street Bridge whereby they diverted water from Boulder creek into Dry creek and at convenient places took it out of this channel by constructing ditches therefrom; that a number of farmers owning land north and east of Dry creek participated in the original construction, or soon thereafter enlarged it, constructing a ditch therefrom at a point lower down than the others, naming it the North Boulder Farmers' ditch, and that in 1863 and again in 1864 this ditch was enlarged, and in 1871 those interested in it incorporated under the name of the North Boulder Farmers' Ditch Company; that in 1874 the White Rock ditch, then known as the Beasley ditch, was constructed, having its headgate at the same point as the others on Dry creek, utilizing it as the conduit for its water from the headgate at Twelfth street to Twenty-First street in the city of Boulder, a distance of about 700 yards, where its ditch diverges to the north from Dry creek; that in the same year the Boulder & Left-Hand ditch was constructed, using the same headgate to what is called the wye where it diverges to the northeast, parallel to the Boulder ditch; that on May 23, 1874, a contract was entered into between the Boulder Company and the White Rock Company, which states:

'That whereas both the said companies have filed certificates of incorporation covering the right of way upon the same line from the point of commencement in the north bank of Boulder creek in the town of Boulder in said Boulder county, near the bridge over said Boulder creek at the foot of Twelfth street in said town, to lot 9 in block D of the town of East Boulder, where said ditches diverge,

'And whereas the said North Boulder Farmers' Ditch Company has the oldest charter privileges to that portion of said line:

'Now therefore in consideration of the agreements herein entered into on the part of Boulder & White Rock Ditch Company, the North Boulder Farmers' Ditch Company hereby agree that said Boulder & White Rock Ditch Company shall have the right of way over that portion of their line and to carry the water from Boulder creek over said line to supply its said ditch, in the following terms and conditions, that is to say:

'First. The said Boulder & White Rock Ditch Company shall make, keep up and maintain a good and sufficient headgate at its point of commencement where the water is taken out of Boulder creek and diverted into said ditch for the use and supply of both said ditches.

'Second. Said Boulder & White Rock Ditch Company shall make and maintain a good and sufficient headgate on said lot nine in block D, where its said ditch diverges from the North Boulder Farmers' ditch, for the purpose of supplying the last-named ditch with water from the outlet to be opened or enlarged and improved by said Boulder & White Rock Ditch Company, from Boulder creek to the point of divergence of said ditches.

'Third. Said Boulder & White Rock Ditch Company shall open an outlet as above described from Boulder creek to said point of divergence, of sufficient capacity to supply the North Boulder Farmers' Ditch Company's ditch with all the water it will carry in its present condition in addition to the supply of water for the Boulder & White Rock ditch.

'Fourth. The said Boulder & White Rock Ditch Company shall supply the said ditch owned by the North Boulder Farmers' Ditch Company with all the water their said ditch will carry in its present condition, when desired by

the latter company so to do; and if said latter company shall elect to enlarge its said ditch at any time and shall at its own expense enlarge its said outlet in the same proportion to the enlargement of its ditch, so that the increased capacity of said outlet to carry and supply water shall be equal to the increased capacity of said North Boulder Farmers' ditch to convey such water, then the Boulder & White Rock Ditch Company shall supply water equal in quantity to the increased capacity of said North Boulder Farmers' ditch, and shall continue thereafter to supply said last-named ditch with all it will so carry when so requested by the officers of said last-named ditch company.

'On the terms and conditions aforesaid the said North Boulder Farmers' Ditch Company do hereby give, grant, bargain and sell unto said Boulder & White Rock Ditch Company the right of way from the said joint point of intersection of said ditches with Boulder creek in said town of Boulder to the point of divergence of said ditches on lot nine in block D, in the town of East Boulder, together with the right to convey water thereon for the purposes aforesaid, and also the exclusive right to all the water so conveyed over said line except sufficient thereof to supply the said North Boulder Farmers' Ditch Company's ditch with water to the extent before herein stated.

'And the said Boulder & White Rock Ditch Company hereby agree to the conditions above named and in consideration of the right of way and water privileges above herein granted by said North Boulder Farmers' Ditch Company, on the terms and conditions aforesaid, hereby bind itself to carry out said terms and conditions.'

The record further discloses that, after the passage of our irrigation acts of 1879 and 1881, an adjudication proceeding was instituted thereunder in the district court of Boulder county to determine the priorities in this water district which culminated in the decree of June 2, 1882, by which the White Rock ditch was awarded priority No. 35 from Boulder creek by original construction as of date November 1, 1873, for 556.7 second feet for the first 700 yards of its ditch from...