Ogilvy Irrigating & Land Co. v. Insinger

• Decision Date: 08 February 1904
• Parties: OGILVY IRRIGATING & LAND CO. v. INSINGER.
• Court: Colorado Court of Appeals

75 P. 598

19 Colo.App. 380

OGILVY IRRIGATING & LAND CO. v. INSINGER.

Court of Appeals of Colorado

February 8, 1904

Appeal from District Court, Larimer County.

Action by the Ogilvy Irrigating & Land Company against W. Albrecht Insinger. Judgment for defendant, and demurrer to the complaint, and plaintiff appeals. Reversed.

H.E. Churchill, for appellant.

H.N Haynes, for appellee.

MAXWELL J.

The complaint avers the corporate capacity of plaintiff; the ownership of an irrigating canal constructed in 1882, whereby 91.066 cubic feet per second of time of the waters of the Cache la Poudre river were appropriated for irrigating 3,500 acres of land owned by the stockholders of plaintiff and others, lying under the canal, for whom and itself action was brought; that the head gate of plaintiff's canal is in the northeast bank of the river; that the source of supply for plaintiff's canal is the Cache la Poudre river together with its several tributaries, and the waste seepage, surface, and drainage water coming into the said river above the head gate of plaintiff's canal; that owing to the lateness of plaintiff's appropriation, its supply of water, except during the flood season, is almost entirely dependent upon the accretions to said river below the dam and head gate of No. 3 Canal, which dam and head gate are located upon said stream about nine miles above the head gate of plaintiff's canal; that, between plaintiff's head gate and the head gate of No. 3 Canal, the only appropriation prior to plaintiff's is that of Mill Power Canal; that, except during the flood season, the amount of water which plaintiff's canal is able to obtain and divert during the irrigating season has been from 30 to 40 cubic feet of water per second of time which has been used for the irrigation of lands lying under plaintiff's canal; that its entire appropriation, and all the water it can derive from the river and its accretions, are necessary to be diverted to irrigating the lands lying thereunder, and the continued use and enjoyment of all the accretions of the said river below the head gate of No. 3 Canal are necessary for such purposes; that in November, 1893, defendant commenced the construction of an irrigation ditch; that such ditch does not have its head gate in the Cache la Poudre river, but said ditch is so constructed as to intercept waters flowing into said river, and augmenting the water supply thereof; that the initial point or head gate of said ditch is located about a mile above the head gate of appellant's canal (describing the point), and at a point about 1,000 feet west of the Cache la Poudre river; that from said point said ditch extends in an easterly direction and crosses said river a distance of about a mile and a half; that said ditch so constructed has a carrying capacity of upwards of 5 cubic feet of water per second of time, and such quantity of water is collected, diverted, and used by defendant's ditch; that the water so collected, diverted, and used by defendant's ditch consists of the waste and seepage water arising under certain sections of land south and west of the Cache la Poudre river; also the drainage waters from said lands collected by drainage ditches and otherwise, and discharged into the said river; also the sewer and waste water from the sewer system of the city of Greeley, which is located upon said land; also the waste, seepage, and drainage water from the lateral ditches of No. 3 Canal used in irrigating said lands, and the waste and seepage water from the Mill Power Canal, used in part for the irrigation of said lands, and in part for mechanical purposes; that for many years prior to the construction of defendant's ditch all of said waste water flowed into the river above the head gate of plaintiff's canal, and was a part of the water diverted by its canal, and had been a source of supply for said river, augmenting the water supply thereof, and during each irrigating season had been used by plaintiff and its stockholders in irrigating the lands lying under its canal; that since the construction of defendant's ditch all of the said water, to the amount of upwards of 5 cubic feet per second of time, has been diverted thereby, to the injury and damage of plaintiff, its stockholders and customers; that all of the water of said river and its tributaries and accretions from every source, and of every character and nature whatsoever, are necessary to be diverted and used by plaintiff in the irrigation of the lands lying under its canal; that, since the construction of defendant's ditch, and the diversion and use of the water thereby, plaintiff and its water consumers have not been able to procure from said river a sufficient supply of water to irrigate and water the crops growing upon the lands lying under its canal; that the continued diversion of said water by defendant will result in irreparable injury and damage to plaintiff, its stockholders and water consumers; and that plaintiff has no speedy and adequate remedy at law. Prayer, that defendant be enjoined from diverting and using any water by means of said ditch from the Cache la Poudre river, or any of its sources of supply, and from intercepting or diverting any waste, seepage, flood, or drainage water or water from the sewer system of the city or Greeley, which are sources of supply...