Parsons v. Fort Morgan Reservoir & Irr. Co.

• Decision Date: 01 December 1913
• Citation: 56 Colo. 146,136 P. 1024
• Court: Colorado Supreme Court
• Parties: PARSONS et al. v. FT. MORGAN RESERVOIR & IRRIGATION CO. et al.

136 P. 1024

56 Colo. 146

PARSONS et al. v. FT. MORGAN RESERVOIR & IRRIGATION CO. et al.

Supreme Court of Colorado

December 1, 1913

Error to District Court, Morgan County; H. P Burke, Judge.

Action by the Ft. Morgan Reservoir & Irrigation Company and others against F. B. Parsons and others. Judgment for plaintiffs and defendants bring error. Affirmed.

In the summer of 1911 the Ft. Morgan Reservoir & Irrigating Company and others brought an action against F. B. Parsons and others, the purpose of which was to have priorities awarded the Parsons ditch decreed abandoned. The defendants answered putting in issue the material allegations of the complaint upon which the abandonment of the priorities in question was predicated. The cause was tried to the court and a decree rendered adjudging that the priorities involved were abandoned, and decreeing that the defendants be forever restrained and enjoined from diverting any water thereunder. The defendants bring the case here for review on error. The only question urged upon our attention which presents any merits is that the testimony is insufficient to sustain the judgment of the court.

In November, 1895, under statutory adjudication proceedings, the Parsons ditch was awarded priority No. 2, as of date January 1, 1871, for four cubic feet of water per second, and priority No. 46, for 48 cubic feet, as of date September 8 1889. There is some conflict in the testimony as to the date when water was last diverted through the ditch for the purpose of irrigation; it being the contention on the part of the defendants that water was so diverted as late as 1897 and possibly 1898. There is testimony, however, to the effect that in 1895 a flood occurred in the river which destroyed the diverting dam and so injured the headgate and lowered the river channel that the ditch was not thereafter used. It also appears from the testimony that in 1898 Parsons, one of the owners of the ditch, constructed a dike across its mouth in order to prevent lands under the ditch from being flooded. It is clear from the testimony that after this date the ditch was not used for any purpose. It also appears that from this time, and possibly for some time prior, no work was done upon the ditch; that it was broken in one or more places; that it had been filled in by the construction of roads across it--although Parsons testifies that he objected to the construction of one highway, and was told by the county commissioner, with whom he talked, that if the ditch was put in repair an opening through the fill would be made so as not to interfere with the flow of water in the ditch. There was also testimony on the part of the defendants to the effect that the owners of the Parsons ditch were not financially able to put it in repair, and that they endeavored to secure funds for this purpose or change the intake of the ditch to a point further up the river or construct another ditch, but were unsuccessful. About 1900, or the year following, Parsons and others commenced the construction of the Parsons and Bechtolt ditch, the headgate of which was some distance down the river from the Parsons headgate. On behalf of the defendants the testimony is that this ditch was intended to carry the water of the Parsons priorities, although its dimensions were such that it would not have been nearly sufficient for this purpose. Later it developed that the Parsons and Bechtolt ditch interfered with a ditch known as the Trowell, and that on account of this conflict the upper portion of the Parsons and Bechtolt ditch only was completed, and that it was thereafter abandoned and no water ever run through it.

The Parsons ditch was owned by the Parsons Irrigating Ditch Company. The charter of this company expired in 1910, and for some time prior to that date meetings of the stockholders were not held. To build the ditch money had been obtained from a Mr. More by pledging the greater portion of the stock as collateral. This occurred in 1890. In 1902 Mr. More advanced something like $80 to assist in defending the water rights of the ditches in that locality, which were involved in litigation with ditches taking their supply of water further down the river. He testifies that this advance was made to protect his interest as pledgee of the stock. He also testified that he had informed the officers of the Platte and Beavor ditch that they had his permission to run the first Parsons priority through their ditch if they needed it. This was probably in 1901, 1902, and 1903. No price, however, was asked for the water, nor was there any consideration for its use, if in fact such diversion was made. According to the testimony of Parsons for the defendants, he diverted some of the water of the Parsons priorities through the Trowell ditch. This was during the years 1905, 1906, and 1907, and the diversion was for a period of about three days during each of these years, in volume equal to about the first Parsons priority. It also appears from the testimony that during these years, and perhaps for most of the time after the use of the Parsons ditch ceased, Parsons took water from the Platte and Beaver ditch because, as he said, it was cheaper than to repair the Parsons ditch.

The evidence discloses that the major portion of the lands owned by the Parsons people under the Parsons ditch had been sold under a trustee's deed in 1895, and that about 1909 defendant Parsons disposed of his land. About 1909 Stratton one of the defendants, purchased the stock...