People ex rel. Standart v. Farmers' High-Line Canal & Reservoir Co.

• Decision Date: 06 June 1898
• Citation: People ex rel. Standart v. Farmers' High-Line Canal & Reservoir Co., 54 P. 626, 25 Colo. 202 (Colo. 1898)
• Parties: PEOPLE ex rel. STANDART v. FARMERS' HIGH-LINE CANAL & RESERVOIR CO.
• Court: Colorado Supreme Court

54 P. 626

25 Colo. 202

PEOPLE ex rel. STANDART v. FARMERS' HIGH-LINE CANAL & RESERVOIR CO.

Supreme Court of Colorado

June 6, 1898

Error to court of appeals.

Peremptory mandamus by the people, on the relation of Stephen H Standart, assignee of Crippen, Lawrence & Co., against the Farmers' High-Line Canal & Reservoir Company. A judgment for plaintiff was reversed by the court of appeals (45 P 543), and he appeals. Reversed.

This action was originally instituted in the district court of Jefferson county by the plaintiff in error, Standart, to compel the defendant in error to furnish 25 inches of water during the year 1894, to be used on a portion of section 11 township 3 S., range 69 W. He, as assignee of Crippen Lawrence & Co., claims title to the land through divers mesne conveyances from one Eli Allen, and the use of the water as an appurtenant thereto. The facts that are material to a determination of the case, as they appear from the pleadings and evidence, are, in substance, as follows:

Eli Allen and 15 other farmers, residents of Jefferson county, in 1863 organized a corporation and constructed an irrigating ditch for the purpose of taking water from Clear Creek to irrigate their lands. In 1872 the ditch and the rights of the company passed to the Golden City & Arapahoe Ditch Company, a corporation organized by the stockholders of the old company. The capital stock consisted of 100 shares, each of which represented 12 inches of water. Eli Allen was the owner of 7 1/2 shares of this stock. On March 20, 1872, the company leased the ditch to William Bomberger, Francis Gallup, and William A. Rand, parties doing business as William Bomberger & Co., during the existence of its charter, and any renewal thereof, upon condition, among other things, that they would enlarge the ditch to not less than three times its previous capacity; and also construct, by or before June 1, 1872, a branch of said ditch, called the 'South Branch,' beginning at Dry Creek, and following the most practicable route, and ending at the county line; and also to furnish free of all charges to each of the stockholders, 12 inches of water for each share of stock held by him. Thereafter, within the specified time, the South Branch was constructed. It extended east from Dry Creek, and passed north of the land in question, which was known as 'Eli Allen's Home Farm.' There was also another branch of the ditch constructed east from Ralston Creek, and called the 'Gallup Extension.' The lease was recorded in Book L, p. 344, of the Jefferson county records. On March 22, 1873, the following agreement was entered into: 'This indenture, made and entered into this 22d day of March, A. D. 1873, by and between the Golden City & Arapahoe Ditch Company, of the county of Jefferson, of the first part, and * * * William Bomberger & Company, of the county of Arapahoe, of the second part, and * * * Eli Allen [and others], * * * stockholders in the said ditch company, and owners of land under said ditch, of the third part, witnesseth: That whereas, the said William Bomberger, Francis Gallup, and William A. Rand, by their said name and firm style of William Bomberger & Co., by a certain written agreement, made between said Golden City & Arapahoe Ditch Company and the said William Bomberger & Co., on the 20th day of March, A. D. 1872, and recorded on page 344 of volume No. L of the records of Jefferson county, territory of Colorado, in the office of the county clerk and recorder of said county, did become the lessess of the right of way and ditch of said company lying in said Jefferson county, and are at this time in possession of said ditch and right of way under and by virtue of said lease; and whereas, it is desired to make certain other and further agreements for control and management of said ditch, and furnishing the water for irrigation for the lands owned at this time by the said several parties of the third part from the said ditch, as well for the accommodation of the said parties of the first and second part as for the said parties of the third part, severally, and to each and every of their several assigns and vendees, lessees, and tenants of the said lands as now held severally by said several parties of the third part, under said ditch, sufficient water from said ditch for the irrigation of the lands now owned or occupied, or cultivated, or which may be hereafter cultivated, by him or his assigns, as any part of the lands now owned or occupied by him under said ditch, upon the terms and conditions hereinbelow set forth, which said lands so hereby intended to be irrigated from said ditch are set forth by the numbers thereof in a schedule annexed hereto, and marked 'List of Lands': Now, it is hereby covenanted and agreed, on the part of the said William Bomberger & Co., that the said William Bomberger & Co. shall pay off all indebtedness and cost necessary to be paid in order to secure the clear and complete right of way of and for said ditch from the head of said ditch to Ralston Creek, in said Jefferson county, and to pay the fees of attorneys and counsel now due from said company for legal services in and about the incorporation thereof, and leasing and procuring the right of way by condemnation for said company for said ditch; and shall also pay the said stockholders, to each his proportionate share, the sum of $3,500 on or before the 24th day of March, 1874, and the further sum of $3,500 on or before the 24th day of March, 1875, for which said sum the said William Bomberger & Company shall give to each of said stockholders their promissory negotiable note for the amount of his share thereof, in payment for a transfer by him to said William Bomberger & Company of his share of stock in said ditch company; and, further, said William Bomberger & Company shall deliver to said stockholders, for the crop season of 1873, 1,200 inches of water, to be delivered in all respects according to the terms of said lease, in full for interest upon said two deferred payments for which said notes are to be given, said notes bearing no interest till due; and, at the time of making said notes, said William Bomberger & Company shall issue to each of said stockholders a certificate for water from said ditch for the year 1873, entitling him or her to receive his proportionate share of said 1,200 inches of water from said ditch, to be delivered as aforesaid. And the said parties of the third part, each for himself, hereby covenants, to and with the said party of the second part, that, upon the making of the said promissory notes and certificates for water, he will assign, transfer, and set over to the said party of the second part all the share or shares, or parts of shares, owned by him in said ditch company, in due form of law, according to the by-laws and usages of said ditch company; and the said party of the first part and the said party of the second part, jointly and severally, for themselves and each of them, their successors, assigns, transferees, and vendees, forever, do hereby covenant with the said several parties of the third part, to each severally, and to his or her heirs, executors, administrators, and assigns, vendees, and transferees of the lands now owned or occupied by him under said ditch, as set forth in said schedule, that each and every of the said parties of the third part, his heirs, executors, administrators, assigns, vendees, or transferees of the lands now owned by him as aforesaid, or any part thereof, shall, by this indenture, from and after this date, have the right to receive and have delivered to them, and each of them, severally, from said ditch of said party of the first part, during the crop season of the year A. D. 1873, and every year thereafter, forever, so much water as may in fact be necessary and proper to amply irrigate all the lands under said ditch owned or occupied by him or her, his or her lessees or agents, being part and parcel of the land mentioned in said schedule; at all times from the 15th day of May unto the 15th day of November, in each and every year, said water to be furnished at the rate of $1 per inch, subject to all the terms and conditions as to delivery thereof mentioned in said lease for the delivery of surplus water to the stockholders of said ditch company, as therein provided, and to be ordered and paid for in the same manner as therein provided for the ordering and paying for the said surplus water, and subject to the further provision, as in said lease, that there [be] sufficient water in Clear Creek available to enable the said parties of the first and second part, or either of them, to furnish the water so required to be furnished; * * * it being the true intent of this indenture that the covenants herein on the part of the parties of the first and second part touching the furnishing and delivery of said waters for said lands shall run with the right of way and ditch of said party of the first part, and the rights therein of the party of the second part, and with such lands, forever, and obligatory upon, and in favor of, the owners and proprietors of said ditch and lands, and that by virtue thereof the owners of such lands shall at all times enjoy of having and receiving from said ditch all waters necessary for the irrigation of said lands, and none others, at the said price of one dollar per inch per season, on the terms and conditions aforesaid, any change in the ownership, control, or management of said ditch notwithstanding.'

We have stated so much of the contract as is material to the questions now presented. The portion omitted provided in case Bomberger & Co., or whoever might be in control or management of the ditch, should refuse to comply with the terms of the contract as to furnishing the water, that, upon...