Oppenlander v. Left-Hand Ditch Co.

Citation18 Colo. 142, 31 P. 854
Case DateDecember 21, 1892
CourtSupreme Court of Colorado

31 P. 854

18 Colo. 142

OPPENLANDER et al.
v.
LEFT-HAND DITCH CO. et al.

Supreme Court of Colorado

December 21, 1892


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.

[18 Colo. 143] 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, [18 Colo. 144] 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 [31 P. 855] 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. [18 Colo. 145] 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.

[18 Colo. 146] 2. In 1866, previous to the conveyance of the land to Stockdorf, the Left-Hand Ditch Company was incorporated, and Baun became an...

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25 practice notes
  • State of Wyoming v. State of Colorado, No. 3
    • United States
    • United States Supreme Court
    • June 5, 1922
    ...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, 64 Pa......
  • Wheatland Irr. Dist. v. Pioneer Canal Co., No. 3756
    • United States
    • United States State Supreme Court of Wyoming
    • January 26, 1970
    ...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 meeting contestant's argument, Pioneer, in addition to point......
  • Walbridge v. Robinson
    • United States
    • United States State Supreme Court of Idaho
    • July 3, 1912
    ...P. 809, 810; Thomas v. 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 been the subject of controversy in several cases. Most of the cases say that no innovations in the law ......
  • Gould v. Maricopa Canal Co., Civil 738
    • United States
    • Supreme Court of Arizona
    • March 26, 1904
    ...him. Churchill v. Bauman, 104 Cal. 369, 36 P. 93, 38 P. 43; Dalton v. Rentaria, 2 Ariz. 275, 15 P. 37; Oppenlander v. Left-Hand Ditch Co., 18 Colo. 142, 31 P. 855; Davis v. Gale, 32 Cal. 27, 91 Am. Dec. 554; Hewitt v. Story, 51 F. 101. Therefore as to this question, Is the appellant entitle......
  • Request a trial to view additional results
25 cases
  • State of Wyoming v. State of Colorado, No. 3
    • United States
    • United States Supreme Court
    • June 5, 1922
    ...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, 64 Pa......
  • Wheatland Irr. Dist. v. Pioneer Canal Co., No. 3756
    • United States
    • United States State Supreme Court of Wyoming
    • January 26, 1970
    ...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 meeting contestant's argument, Pioneer, in addition to point......
  • Walbridge v. Robinson
    • United States
    • United States State Supreme Court of Idaho
    • July 3, 1912
    ...P. 809, 810; Thomas v. 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 been the subject of controversy in several cases. Most of the cases say that no innovations in the law ......
  • Gould v. Maricopa Canal Co., Civil 738
    • United States
    • Supreme Court of Arizona
    • March 26, 1904
    ...him. Churchill v. Bauman, 104 Cal. 369, 36 P. 93, 38 P. 43; Dalton v. Rentaria, 2 Ariz. 275, 15 P. 37; Oppenlander v. Left-Hand Ditch Co., 18 Colo. 142, 31 P. 855; Davis v. Gale, 32 Cal. 27, 91 Am. Dec. 554; Hewitt v. Story, 51 F. 101. Therefore as to this question, Is the appellant entitle......
  • Request a trial to view additional results

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