Oppenlander v. Left-Hand Ditch Co.

Citation18 Colo. 142,31 P. 854
PartiesOPPENLANDER et al. v. LEFT-HAND DITCH CO. et al.
Decision Date21 December 1892
CourtSupreme Court of Colorado

Appeal from district court, Boulder county.

Action by George F. Oppenlander, Mrs. Mary Bowman, Mrs. Ida Lehman Mrs. Emma Kemble, Julia Baun, and Frank Goyn against the Left-Hand Ditch Company, a corporation, and J. W. Daniels water commissioner for district No. 5.

Appellants were plaintiffs below, and obtained a preliminary injunction against appellees. The cause was tried upon the merits, and resulted in a finding in favor of defendants. The injunction was thereupon dissolved, and the action dismissed. The plaintiffs bring this appeal. Affirmed.

James M. North, for appellants.

R H. Whiteley, for appellees.

ELLIOTT J.

St Vrain creek takes its rise on the western slope of the Rocky mountains, near the summit of the Continental divide. Thus it has a good supply of water from the regions of perpetual snow. The general course of the stream is eastward through the mountainous regions of Boulder county, and thence across the plains until it becomes a tributary of the South Platteriver. Left-Hand creek is a tributary of the St. Vrain, from the south. Its general course is also eastward, until it forms a junction with the former stream, some miles out upon the plains. James creek, a still smaller stream, takes its rise between the St. Vrain and Left-Hand creek, and makes a junction with the latter stream before it emerges from the foothills. Neither Left-Hand creek nor James creek has as good natural water supply as the St. Vrain,--their sources, respectively, not being so far up the mountain slope; and as a consequence the natural water supply of Left-Hand creek is not sufficient to irrigate the agricultural lands lying along its borders upon the plains. Early in the sixties, certain settlers upon the plains along the valley of Left-Hand creek made appropriations of water from said stream for the irrigation of the lands occupied by them, respectively; but, as there was not enough water in the natural stream to supply their wants, they undertook to increase the supply by artificial means. At a certain point in the mountains, James creek and the south fork of the St. Vrain are but a short distance apart. Taking advantage of this proximity of the two streams, a channel or ditch was cut through the narrow strip of land separating them. Thus water from the St. Vrain was carried into James creek; thence down the channel of the James to Left-Hand creek; thence down Left-Hand creek, and out upon the plains, to supply the settlers with water for irrigation. The artificial channel thus uniting the St. Vrain with James creek was first constructed in 1863; and since that time said channel, including the natural channels of the James and the Left-Hand below the junction, has been called the 'Left-Hand Ditch.' This will not appear so strange, when it is understood that the volume of water flowing in the channel of Left-Hand creek was more than doubled by the original construction of the artificial channel, and that by an enlargement thereof in 1870 the stream was increased to about 10 times its original size.

1. The right to divert and convey the water of a natural stream across an intervening 'divide,' to be used for the irrigation of lands in the valley of another natural stream, and for that purpose to utilize the channel of the second stream as a ditch to convey and distribute the water diverted from the first stream, has been distinctly recognized by this court. The diversion from the St. Vrain to the James and Left-Hand creeks, as above stated, was upheld in Coffin v. Ditch Co., 6 Colo. 449. The controversy in this case arises over a claim made by plaintiffs to the use of water from Left-Hand creek or ditch to irrigate a parcel of land situate in sections 26 and 27, township 2 N., range 70 W., in Boulder county, through which said stream flows. It appears that George F. Oppenlander first settled upon the land about 1860, and by means of certain small ditches appropriated water from Left-Hand creek for the irrigation of a few acres during the years 1861, 1862, and 1863. Oppenlander also assisted in constructing Left-Hand ditch, in 1863, whereby the volume of water was increased, as above stated, but he never acquired the government title to the land. He testified that he sold and turned over the place in 1863 to one Frederick Baun, his brother-in-law, by verbal agreement, explaining to his successor how the water irrigated the land. Baun continued thereafter to occupy and irrigate the land, and subsequently obtained the government patent for it. In 1871 Baun conveyed the land by warranty deed to one Stockdorf; and on the same day Stockdorf, by similar deeds, conveyed an undivided half thereof to Baun's wife, and the remaining half to Baun's children,--Mary, Ida, Emma, and Julia,--plaintiffs herein. Not long after this, Mrs. Baun having died, Mr. Baun, in 1874, andertook to convey his interest in his deceased wife's estate to his said children. Baun, however, continued in possession and control of the land until shortly before the commencement of this action. In the mean time, the land having been sold for taxes, the plaintiff Oppenlander purchased the tax certificates, and holds them, as he testified, for the benefit and protection of his nieces and coplaintiffs herein. Oppenlander also, in March, 1889, purchased at sheriff's sale all the right, title, and interest of Baun in said premises. The plaintiff Goyn claims no interest in the land, except as the lessee in possession under Oppenlander since April, 1889. The complaint alleges that Oppenlander, in his lease to Goyn, agreed, among other things, to furnish water sufficient to irrigate said farm, if within his power.

2. In 1866, previous to the conveyance of the land to Stockdorf, the Left-Hand Ditch Company was incorporated and Baun became an original subscriber for one share of the capital stock. Shortly thereafter, he became the owner of a second share. It appears, also, that at one time a third share was assigned to him; but as the evidence is not clear as to the ownership of such third share when this controversy arose, and as Baun himself was not produced as a witness by him children, nor his absence explained, the inference was natural that his interest in the stock of the company was limited to two shares. It is unnecessary, however, to decide in respect to Frederick Baun's title to the third share. He not being a party to this action, his rights are not affected by this decision. Besides, the ownership of the third share is not important in this controversy, since there is no evidence that plaintiffs, or either of them, ever acquired it; and, as will hereafter appear, plaintiffs do not base their claim to water upon the ownership of stock in the ditch company. The evidence shows that the Left-Hand Ditch Company distributed water to its stockholders in proportion to the number of shares owned by them, respectively, and there is nothing in this record indicating that such mode of distribution in any way conflicts with the 'better right' of prior appropriators. See Combs v. Ditch Co., 17 Colo. ----, 28 P. 966. In the course of time, shares of stock in the Left-Hand Ditch Company became very valuable. Baun assigned one of his shares in 1883, and the other in 1885, as collateral to secure certain loans. Failing to pay these loans, the shares were afterwards, and before the commencement of this action, sold for nearly $1,600 in the aggregate, and passed into the hands of third parties. Thereupon the ditch company shut off the supply of water to plaintiffs. The St. Vrain and its tributaries, 'except the Boulder, its tributaries, and Coal creek,' constitute irrigation district No. 5. See Sess. Laws 1879, p. 98. It appears that in November, 1882, decrees were rendered, determining the priorities of the several ditches in said irrigation district under the acts of 1879 and 1881. The decrees show the amount of water appropriated by the Left-Hand ditch from the St. Vrain creek, and also the appropriation made by the Holland ditch and by the Baun & Goyn ditch from Left-Hand creek; the...

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24 cases
  • State of Wyoming v. State of Colorado
    • United States
    • U.S. Supreme Court
    • 5 de junho de 1922
    ...Thomas v. Guiraud, 6 Colo. 530; Strickler v. Colorado Springs, 16 Colo. 61, 26 Pac. 313, 25 Am. St. Rep. 245; Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 Pac. 854; Wyatt v. Larimer & Weld Irrigation Co., 18 Colo. 298, 33 Pac. 144, 36 Am. St. Rep. 280; Crippen v. White, 28 Colo. 298......
  • Walbridge v. Robinson
    • United States
    • Idaho Supreme Court
    • 3 de julho de 1912
    ... ... Guiraud, 6 Colo. 530; Hammond v. Rose, 11 Colo ... 524, 7 Am. St. 258, 19 P. 466; Oppenlander v. Left Hand Ditch ... Co., 18 Colo. 142, 31 P. 854.) ... Interstate ... streams have ... ...
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    • United States
    • Wyoming Supreme Court
    • 26 de janeiro de 1970
    ...Pioneer had theretofore permanently disposed of a small portion of its right by deed. Contestant also relies upon Oppenlander v. Left-Hand Ditch Co., 18 Colo. 142, 31 P. 854, but that case is not particularly helpful on the question before In concluding our remarks on what appears to be a r......
  • Willey v. Decker
    • United States
    • Wyoming Supreme Court
    • 3 de agosto de 1903
    ... ... of lands through the construction of a ditch commenced in the ... year 1884, and completed in 1885, and the application of the ... water for ... water within the boundaries of the state. ( Coffin v ... Left Hand Ditch Co., 6 Colo. 443.) ... When ... the question was first considered in the State of ... Guiraud, 6 Colo. 530; ... Hammond v. Rose, 11 Colo. 524; 19 P. 466; ... Oppenlander v. Left Hand Ditch Co., 18 Colo. 142; 31 ... P. 854.) The court say in the case last cited: "The ... ...
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