Pleasant Val. & Lake Canal Co. v. Maxwell, 12842.

• Decision Date: 12 June 1933
• Docket Number: 12842.
• Citation: 93 Colo. 73,23 P.2d 948
• Parties: PLEASANT VALLEY & LAKE CANAL CO. v. MAXWELL et ux.
• Court: Colorado Supreme Court

23 P.2d 948

93 Colo. 73

PLEASANT VALLEY & LAKE CANAL CO. v. MAXWELL et ux.

No. 12842.

Supreme Court of Colorado

June 12, 1933

Rehearing Denied July 3, 1933.

In Department.

Error to District Court, Larimer County; Robert G. Smith, Judge.

Action by Ray V. Maxwell and wife against the Pleasant Valley & Lake Canal Company. To review a judgment in favor of the plaintiffs, the defendant brings error.

Affirmed.

L. R. Temple, of Fort Collins, for plaintiff in error.

Mortimer Stone, of Fort Collins, for defendants in error.

CAMPBELL Justice.

Ray V Maxwell and his wife, Ethie F. Maxwell, as plaintiffs below brought this action against the defendant, the Pleasant Valley & Lake Canal Company, a corporation, for a decree quieting their title to a certain water right of which they claimed ownership. The defendant company's answer denied such alleged ownership by the plaintiffs, and in two separate affirmative defenses therein alleged that the claim of ownership by the plaintiffs of the water right in question was without merit, and that such water right belongs to the defendant, either in its corporate capacity, or as trustee for its stockholders and was so decreed by the district court of Larimer county, Colo., in 1882.

Much oral evidence was taken and considerable record evidence produced. Trial was to the court without a jury and at the close of the testimony and after arguments of counsel the trial court found generally for the plaintiffs and made the following specific findings of fact: (1) That the plaintiffs and their predecessors in title and interest have continuously during each irrigation season of more than thirty years prior to the wrongful locking of their headgate by defendant in the month of June, 1928, under claim of ownership and of right used sufficient water out of said company's ditch or canal for the full, necessary, and proper irrigation of fifty acres of the lands in plaintiff's complaint--describing the same--to the detriment of defendant and at times when there was shortage of water for the use of its stockholders, and that defendant has at all times had full knowledge of such use and claim of ownership and of right and has acquiesced therein; (2) that plaintiffs and their predecessors in title and interest have for a period of more than thirty years prior to the acts of defendant complained of in plaintiffs' complaint been in actual, open, notorious continuous, adverse, and exclusive possession of sufficient water for the irrigation of fifty acres of the lands hereinafter and in plaintiffs' complaint described, to wit, fifty inches of the waters at any time in the said Pleasant Valley and Lake Canal, hostile to defendant and under claim of right; (3) that plaintiffs and their predecessors in title and interest from whom plaintiffs now hold by purchase have for a period of more than seven years prior to the acts of defendant complained of in plaintiffs' complaint been in actual, open, notorious continuous, adverse, and exclusive possession of sufficient of the waters at any time in said Pleasant Valley and Lake Canal to fully irrigate said fifty acres of land, to wit, fifty inches thereof, hostile to defendant and under claim and color of title made in good faith and have during said time paid all taxes legally assessed thereon; (4) that plaintiffs are the owners each of an undivided one-half interest in and entitled to the possession of fifty inches of water out of the waters appropriated through and decreed to defendant's ditch, the Pleasant Valley and Lake Canal, from the Cache la Poudre river as of right prior to that of defendant together with the right of carriage of said water through defendant's ditch from the headgate thereof on the Cache la Poudre river to the headgate where the same has been heretofore used, for the irrigation of fifty acres of the lands described in plaintiffs' complaint. Then follows the specific description of said fifty-acre tract.

The decree of the court based upon such findings specifically provides that the same shall not be deemed in any way to determine or affect the rights of grantees and their successors in interest under deeds for water for neighboring lands theretofore executed by the defendant company of record, and the decree further provides that the water right thus decreed to the plaintiffs, as against the defendant, shall be subject to all prior rights thus acquired and now held by the grantees named in said deeds and their successors in title and interest. Based upon such findings of fact the court by its decree adjudged that the plaintiffs, as against the defendant company, are the owners of, and each of them is entitled to, an undivided one-half interest in and to said fifty inches of water, subject, as stated, to such prior rights, if any as were acquired and held by grantees named in the deeds above described passing to parties other than the plaintiffs in this action.

We have thus stated the issues and the findings and decree of the court as the best way to present this controversy and as it will serve materially to shorten the opinion. The evidence in the case, as counsel themselves say, took a wide range and was in conflict as to the material issues and to which evidence was directed. We have spent considerable time in reading the able briefs of respective counsel and the evidence contained in the transcript. It would...