Osborn & Caywood Ditch Co. v. Green
| Decision Date | 17 November 1983 |
| Docket Number | No. 82CA0028,82CA0028 |
| Citation | 673 P.2d 380 |
| Parties | OSBORN & CAYWOOD DITCH CO., Plaintiff-Appellee, v. Gerald GREEN and Kay Green, Defendants-Appellants. . II |
| Court | Colorado Court of Appeals |
Chilson & Stanton, P.C., John H. Chilson, Loveland, for plaintiff-appellee.
R.B. Fickel, Berthoud, for defendants-appellants.
This is an appeal from an injunction issued by the trial court which prohibited the defendants Green from irrigating across the plaintiff's canal. We modify the injunction, and, as modified affirm.
The trial court found the facts to be as follows. Plaintiff is Osborn-Caywood Ditch Company (company) which owns the Osborn-Caywood Ditch. This ditch, which has been in existence for many years, bisects the Greens' land. In 1977, the defendant Jerald Green contacted the owners of the ditch company and indicated that he desired to install a moveable overhead sprinkler to irrigate his land. He requested permission from the ditch company to cross the ditch with a pivot sprinkler, so that Green's land on both sides of the ditch could be irrigated by the sprinkler method. Permission was granted, and beginning in 1978, Green began operating his sprinkler irrigation system on his farm. Green installed railroad ties on the banks of the ditch to allow the pivot sprinkler system to roll across the ditch on planks supported by the ties.
After the new sprinkler operation had begun, the company discovered that the operation of the sprinkler system caused problems in the operation and maintenance of the ditch. The water from the sprinkler created a muddy condition on the access road which ran parallel to the ditch, softened the banks of the ditch so that the railroad tie crossings cut gouges in the ditch banks when the sprinkler wheels crossed over it, and greatly increased the weed growth on the banks of the ditch. Additionally, because the sprinkler kept the banks wet, the company was unable to spray and burn the weeds at appropriate times during the 1978 irrigation season. Because of these and other difficulties the company encountered in maintaining the ditch, the company notified Green that permission to cross the ditch would be terminated at the end of the 1979 irrigation season. Green, however, continued to operate the sprinkler across the ditch throughout 1980. As a result, the company filed this action seeking damages and injunctive relief.
On supporting evidence, the trial court found the defendant's operation of its sprinkler system substantially interfered with the plaintiff's use and enjoyment of its ditch easement. In its decree, the trial court, feeling a need specifically to define the boundaries of the easement, included the following paragraph in its order:
"That the plaintiff Osborn and Caywood Ditch Company is the owner of an easement across the land owned by the defendants. Said easement being a total of 72' in width, laying 36' on either side of the center line of the existing Osborn and Caywood Ditch, as it crosses the following described real property owned by the defendants ...."
On appeal, the parties concede, that a determination of the width of plaintiff's easement is not necessary to this case since neither party had sought such determination. If a ditch easement arises by prescription, the dimension of the access right to maintain the ditch is that which is reasonably necessary. Accordingly, we direct that the above quoted paragraph be stricken from the trial court's order. See Neville v. Loudon Irrigating Canal & Reservoir Co., 78 Colo. 548, 242 P. 1002 (1926); see also Shrull v. Rapasardi, 33 Colo.App. 148, 517 P.2d 860 (1973).
Paragraph 14 of the trial court's decree states:
"The defendants and their heirs, successors and assigns be and [are] hereby enjoined and prohibited from committing any of the following acts:
A. Placing any object of any nature or description on, in, or across plaintiff's ditch.
B. Causing or permitting any irrigation, sprinkler system to cross plaintiff's ditch or to sprinkle irrigation water on plaintiff's ditch banks or access road.
C. Interfering with or in any manner obstructing or preventing plaintiff's full use and...
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