Roberts v. Scurvin Ditch Co.

• Decision Date: 08 April 1912
• Citation: 22 Colo.App. 120,125 P. 552
• Parties: ROBERTS et al. v. SCURVIN DITCH CO.
• Court: Colorado Court of Appeals

125 P. 552

22 Colo.App. 120

ROBERTS et al. v. SCURVIN DITCH CO.

Court of Appeals of Colorado

April 8, 1912

Rehearing Denied June 10, 1912

Appeal from District Court, Larimer County; James E. Garrigues Judge.

Condemnation proceeding by the Scurvin Ditch Company against George F Roberts and another, partners as Roberts Brothers. From the judgment, defendants appeal. Reversed, with directions.

J.F Farrar, of Ft. Collins, for appellants.

Paul W Lee, of Ft. Collins, for appellee.

SCOTT P.J.

This is an appeal from the judgment of the district court in a condemnation proceeding involving the right of way for an irrigation ditch. The judgment appealed from, after reciting the amount of damages to be allowed the appellants, by the commissioners theretofore appointed, to wit, $175, as having been regularly and properly ascertained and determined and having been theretofore paid into court for the use of appellants, rendered judgment as follows: "Now therefore, it is ordered that the said petitioner shall be and become seised in fee of the following described land, and that it may take possession of and hold and use the same for the purpose specified in said petition, and that it shall thereupon be discharged from all claims for any damages by reason of any matter specified in such petition and certificate of commissioners, that is to say: A strip of land extending through the N.W. 1/4 of section 26 and through sections 23 and 13, all in township 10 N., range 70 west of the 6th P.M. in Larimer county, Colorado, the same being 100 feet in width. Fifty feet on either side of the center line of a certain ditch now constructed thereon, which line is described as follows: Commencing at a point on the canal of the North Poudre Irrigation Company whence the southeast corner of section 22, township 10 N. range 70 W. of the 6th P.M., bears N. 61~>, 21' east, 1,190 feet; thence in a general northeasterly direction to a point 1,812 feet east of the quarter corner on the west side of section 13, township 10 N., range 70 W. of the 6th P.M., at which point the said constructed ditch terminates. And also continuing from the said last-mentioned point, a strip of land 100 feet in width, being 50 feet on either side of a line described as follows: From the end of said ditch above described, thence N. 9~ east, 545 feet; thence N. 32~ east, 300 feet, to a natural ravine or gulch following the center line or thread of said ravine in a northeasterly course, 3,884 feet, to a point on the east line of section 13, township 10 N., range 70 W., 378 feet south of the northeast corner of said section 13. The said land so to be taken being 38.36 acres." It further appears that the condemnation proceeding was instituted in compliance with the direction of the court in a judgment before rendered in an injunction proceeding, wherein the appellants sought to enjoin the appellee from entering upon and using said lands and a certain ditch or excavation, the land in question, alleged to be the property of the plaintiff.

The findings and judgment of the court in that proceeding were as follows: "And the court having heard the evidence adduced by the plaintiffs and the defendant as well, touching the allegations contained in the complaint and answer, and being now fully advised in the premises, doth find: That the equities herein are with the plaintiffs. That the allegations in the complaint contained are true. That the work of the construction of the Scurvin Ditch was begun about the year 1885, and that the same was never completed, but that the same was abandoned by the original projectors of the said ditch more than 20 years prior to the commencement of this action. That no easement was obtained by the original builders of said ditch through, over, and across the land now owned by the plaintiffs. That neither the North Poudre Land, Canal & Reservoir Company, nor its successors in interest, have done any work on the said ditch from the date of the cessation of work thereon in the year 1887 until the defendant entered thereon in May, 1908, to repair and complete the said ditch. That the defendant herein obtained no right to possession of the said ditch, or right of way by virtue of its deed, dated April 8, 1908, from the North Poudre Irrigation Company, successor to the North Poudre Land, Canal & Reservoir Company, the original builder of said Scurvin Ditch; and the said defendant, the Scurvin Ditch Company, should be enjoined during the pendency of this action, and until the final hearing herein, from further occupancy or possession of the said ditch and right of way, as the same traverses the lands of the plaintiffs as herein above mentioned. And therefore, it is ordered, adjudged, and decreed that the defendant herein the Scurvin Ditch Company forthwith refrain from further occupying the line of ditch commonly known as the Scurvin Ditch, as the same traverses sections 13, 23, and the (N.W. 1/4) of section 26, township 10 N., range 70 W., unless forthwith the said defendant shall elect to file its petition in condemnation to condemn a right of way for said ditch, as the same traverses the aforesaid lands; and thereupon the Scurvin Ditch Company files in this court its petition in eminent domain, being No. 2,313 of the files of this court to acquire the said right of way, to have adjudged the compensation therefor and the damages to be assessed in the manner provided by law, and in said proceeding this day obtains its order for temporary possession of the said right of way upon making the deposit in the registry of this court, as by the order in said case provided; and thereupon it appearing to the court that the matters in litigation between the parties hereto in the pending cause have been fully adjudicated and determined, and nothing further remains to be done in this action, therefore it is ordered that the said action be dismissed at the cost of the defendant."

There was no appeal from this judgment. The condemnation proceeding was then instituted, and commissioners duly appointed, who made report with the following findings: "That the value of the land of the respondents actually taken is $115. That the damage to the residue of the land of the respondent is $160. That the amount in value of the benefits to respondent is $100. In making the above award we have not considered the value of the ditch excavation heretofore constructed upon said land."

Thereupon the appellants filed their verified motion to set aside and vacate the report and findings of the commissioners, and, in addition to the facts heretofore set forth, alleged "That the respondents herein are the owners and in occupancy of section 23, the N.W. 1/4 of section 26, and section 13 in township 10 N. of range 70 W., Larimer county, Colo. That in the years 1885, 1886, and 1887 there was partially constructed across the lands above mentioned, by one Scurvin, a ditch excavation; said Scurvin being a contractor, as respondents are informed and believe, of one F.L. Carter Cotton. That the work of said ditch was abandoned by the said Carter Cotton and the said Scurvin more than 20 years ago, and that said work remained in said abandoned state and condition, unused by any persons whatsoever, until after respondents herein acquired title to said land, and until the winter of 1906 and 1907, when said respondents worked upon said ditch and enhanced its value with the expectancy and intention of using said ditch for the carriage of water." That "in due course the said commission proceeded to take and hear testimony as to the value of the land and the compensation which was proper to be allowed the said Roberts Bros., and at said hearing the said respondents offered evidence tending to show that the said ditch excavation hereinbefore referred to, the same being the property of the said Roberts Bros., had originally cost to construct a large amount of money, to wit, about $10,000. That the same had a reasonable market value of a large sum of money, about $3,000. That the said Roberts Bros. had done work heretofore toward completing and repairing said excavation expecting and intending to use it for irrigation purposes, and that said excavation would be a saving to the said Scurvin Ditch Company of approximately $10,000. Testimony was further introduced, and it was admitted by the officers of the Scurvin Ditch Company that the work of building and constructing the ditch across said lands would not have been undertaken by them had they not expected to utilize said excavation and receive the benefit of said excavation and save the cost of construction thereof, and that the Scurvin Ditch Company had undertaken its irrigation project under the belief that they were the owners of said excavation." And further that "respondents would further show that at said hearing Paul W. Lee, Esq., attorney of record and appearing at said hearing for the Scurvin Ditch Company and L.C. Moore, the president of said Scurvin Ditch Company, over the objection of counsel for the respondents herein, stated to the members of this commission that this honorable court had, upon a hearing upon the application for the injunction in the case of the Roberts Bros. against the Scurvin Ditch Company, as hereinbefore referred to, ruled that the said Roberts Bros. were not entitled to any compensation by reason of the fact...