Northern Colorado Irr. Co. v. Richards

• Decision Date: 07 May 1896
• Citation: 45 P. 423,22 Colo. 450
• Parties: NORTHERN COLORADO IRR. CO. v. RICHARDS.
• Court: Colorado Supreme Court

45 P. 423

22 Colo. 450

NORTHERN COLORADO IRR. CO. v. RICHARDS.

Supreme Court of Colorado

May 7, 1896

Appeal from district court, Arapahoe county.

Action by David M. Richards against the Northern Colorado Irrigation Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

This is an action brought by David M. Richards against the Northern Colorado Irrigation Company, in the district court of Arapahoe county, to recover damages for its refusal to furnish water for irrigation purposes. The complaint contains two distinct causes of action. In the first it is, in substance, averred that in the year 1884 defendant, a corporation duly organized and existing under the laws of the state of Colorado, was the owner of, and engaged in operating, an irrigating canal, for the purpose of irrigating lands lying under it; that plaintiff was the owner of 160 acres of land situate in Arapahoe county, lying under, and capable of irrigation by, said canal; that he had no other source from which to obtain water for irrigation, except therefrom; in the month of March of that year there was sufficient water flowing in said canal, undisposed of, for the irrigation of his land; that he then and there applied to defendant to deliver and furnish him water from said canal for the irrigation of his land, and then and there offered and was willing to pay a reasonable water rate or compensation therefor; that defendant refused to furnish or deliver water for such irrigation unless plaintiff would then and there pay, as a condition precedent, a certain bonus or royalty of $12 per acre; that this demand and offer were also made at the beginning of the irrigation season in 1885-86-87 and on each occasion defendant refused to supply water for the irrigation of plaintiff's land unless he would pay the said royalty; during these years no rate to be charged by the company had been fixed by the county commissioners; that by the refusal to supply him with water he had been deprived of great gains, etc. In the second cause of action it is, in substance, averred that in July, 1887, on application, the county commissioners of Arapahoe county made an order fixing the rate to be charged for supplying water for the irrigation of lands in said county at $1.75 per acre; that, during the irrigation season of 1888, plaintiff procured water from defendant for the irrigation of his land, and that on April 12, 1889, not having ceased to use water from said canal with intent to procure it elsewhere, he again applied for water for the irrigation of the same land, and offered and was willing to pay $1.75 per acre, the rate fixed by the board of county commissioners, and the defendant refused and neglected, during the whole of that season, to supply him with any water whatever, and believing that defendant would as in duty bound, deliver water to him as in the preceding year, he purchased divers implements and animals for the cultivation of said land, and also purchased and planted thereon a large number of trees and shrubs, and expended large sums of money in preparing the land for cultivation planted large quantities of grains, grasses, etc.; that by reason of the wrongful refusal of the defendant to supply him with water, and his inability to obtain it from any other source, the crops so planted perished, and the money expended was lost. The answer puts in issue all the material averments of the complaint. The cause was tried to a jury. Verdict in favor of plaintiff, assessing his damages upon the first cause of action in the sum of $2,200, and at $2,100 on the second. Judgment was entered on the verdict for $4,300 and costs. From this judgment the defendant prosecutes this appeal.

Hugh Butler, for appellant.

Wells, McNeal & Taylor and J. Warner Mills, for appellee.

GODDARD J. (after stating the facts).

The assignments of error discussed and relied on for a reversal of the judgment present the following objections: First, there was no sufficient demand for water, or tender made therefor, to support the first cause of action; second, that the evidence introduced under the second cause of action was variant from its averments, and failed to show such contractual relations between the parties as would entitle plaintiff, as a prior and continuing user, to water in the year 1889, and that the court erred in instructing the jury that the plaintiff was entitled to recover damages for the depreciation in value of the improvements made and stock purchased; third, that the damages assessed upon both causes of action are excessive.

It is undisputed that plaintiff's land lay under defendant's ditch, and that it constituted the only source from which water necessary for its tillage could be obtained, and that plaintiff in the month of March, 1884, applied to its manager for water for its irrigation; and we think it sufficiently appears that the company could have supplied the water, had it been so disposed. But it is contended that the plaintiff's demand was not sufficiently positive, nor his offer of compensation sufficiently definite and formal, to apprise the company's manager of his desire for water, or his willingness to pay a reasonable price for it. In other words, that the application was not sufficient to constitute a legal demand, and the defendant was justified in disregarding it. The plaintiff's testimony upon this branch of the case is as follows: 'I undertook to improve the farm in 1884. I took a friend of mine, who was gardening west of there, to examine the land, and made a provisional contract with him to improve the land, conditionally upon my getting water for it. * * * Previous to closing the contract with him, I went to Mr. Gilmore [the company's agent and manager] to see if I could secure water for the land. * * * Saw him at what is known as the 'Barclay Block' where the ditch company's office is still. I told him I was making an arrangement to cultivate the land, and I came to see if I could get water to irrigate it with. He immediately proceeded to tell me the conditions on which I could get water. There was a long conversation ensued, and he took out a contract which he told me I would have to sign in order to get water. I asked him to read it to me and he did so. I hesitated about it somewhat. * * * Mr. Gilmore informed me that the blank space for the number of dollars would be filled with twelve dollars ($12) for the privilege, as be termed it, of getting water. The annual rental world be one dollar and fifty cents ($1.50) per acre. * * * I said I was willing to pay the current charge for the use of water, and that I regarded such charge reasonable. I meant by the 'current charge, $1.50 per acre. There was a good deal more talk, but I don't remember any particular details, except on the question of payment, which was frequently referred to. * * * I offered to pay the annual rental for water,--$1.50 per acre. He said he could not accept it without the previous conditions of the royalty. * * * After a long discussion I went out, debating with myself whether I could possibly make the contract, and hope to own the land afterwards. I told Mr. Gilmore I would have to think about it; that I would not undertake to decide that day. * * * A few days afterwards I met him on Sixteenth street, near Lawrence, and he asked me what I concluded about it. I said I had concluded on taking the chances of a fight, rather than to submit to the conditions. This was near Daniels & Fisher's store. I saw him afterwards a number of times in his office, with the same result; that is, the same conditions were always imposed.' He also testified that in the month of March in the ensuing years, 1885-86-87, he made like demands, all of which were refused. On cross-examination the following question was put to him: 'Q. Did you say you would pay any other price, except $1.50 an acre? A. I don't think I did. I was not offered the privilege of paying any other price. Q. The only offer you made was that you would pay $1.50 an acre for the water? A. Yes, sir.' Mr. Gilmore, the manager of the company, testified, in regard to this interview, that...