People v. Farmers' High Line Canal & Reservoir Co.

• Decision Date: 06 May 1912
• Citation: 52 Colo. 626,123 P. 645
• Parties: PEOPLE v. FARMERS' HIGH LINE CANAL & RESERVOIR CO.
• Court: Colorado Supreme Court

123 P. 645

52 Colo. 626

PEOPLE v. FARMERS' HIGH LINE CANAL & RESERVOIR CO.

Supreme Court of Colorado

May 6, 1912

Error to District Court, Jefferson County; Flor Ashbaugh, Judge.

Action by the People of the State of Colorado against the Farmers' High Line Canal & Reservoir Company. From a judgment for defendant, plaintiff brings error. Reversed and remanded.

Walter M. Morgan, Dist. Atty., and George B Campbell, both of Denver (William A. Dier, of Golden, of counsel), for the People.

George W. Taylor, for defendant in error.

HILL J.

This action arises over a dispute between the county of Jefferson and the defendant in error, the Farmers' High Line Canal & Reservoir Company (a corporation), as to who shall construct a new bridge over the defendant's canal at a certain point in Jefferson county where a public highway crosses over the canal, or, where the canal passes through the highway, as plaintiff's counsel see fit to state it. In 1906 the board of county commissioners notified the defendant company to construct a new bridge at the point in question. The company declined. The county constructed the bridge and brought this action to recover its value, together with certain alleged penalties. Upon trial to the court a nonsuit was granted. The plaintiff brings the case here for review upon error.

The evidence is very indefinite upon certain portions of the fact pertaining to the history of the contention, evidently upon account of their transpiring so long ago; but it reasonably discloses that in 1873 the predecessors in interest of the defendant in error added an extension to their then existing irrigation ditch situate in Jefferson county; that this extention traversed the line where the bridge in controversy is now situate; that the ditch as then constructed was somewhere from 6 to 10 feet wide at the top that at that time there was no public highway located at that point; that in October, 1875, a petition was presented to the board of county commissioners in harmony with the provisions of the statutes for the purpose, and by which a public highway was laid out along this line, and thereafter was thrown open to the public; that about 1877 a bridge was constructed by the county over the ditch at this point; that this bridge was from 8 to 12 feet in length; that it was thereafter maintained by the county up to 1893, during which period it was evidently enlarged a little, for the reason that the evidence shows that the ditch was enlarged from time to time in 1880, 1881, again in 1886, and possibly in 1890, when it was at least 14 feet wide on the top at the point where the bridge was situate. It was thereafter again enlarged for the reason that Mr. Johnson, the superintendent of the defendant in error, testified that a new bridge was constructed at the point in question in 1893, which was 28 feet long; that this bridge was constructed by the Farmers' High Line, the old company, meaning the predecessors of the present defendant in error. There is abundant evidence which discloses that the ditch had then been enlarged so as to require a bridge of this length. This bridge was thereafter maintained by the county until 1906, when the present contention arose, and when the present new bridge of a similar size was constructed by the county.

Numerous cases have been cited upon the rules of the common law as to the rights and liabilities of railroads canals, and other companies with similar properties crossing public highways, but none of which furnish us any material assistance upon account of our legislative enactments upon the subject. By section 38 of the Act of 1883 it was provided that any corporation, etc., owning or constructing any ditch, etc., in, upon, or across any highway, shall keep the highway open for safe and convenient travel by constructing bridges over such ditch, or by providing other safe and convenient ways across or around the said ditch, and within five days after any ditch is constructed across, in or upon any highway the person or persons owning or constructing such ditch shall erect a good and substantial bridge across the same which shall thereafter be maintained by the county. Session Laws of 1883, p. 261. This section was amended in 1885. The material portion of the section, as amended, reads: 'Any person or persons, corporation or company, owning or constructing any ditch, * * * in, upon or across any highway, shall keep the...