Rocky Ford Canal, Reservoir, Land, Loan & Trust Co. v. Simpson

• Decision Date: 23 April 1894
• Citation: 5 Colo.App. 30,36 P. 638
• Parties: ROCKY FORD CANAL, RESERVOIR, LAND, LOAN & TRUST CO. v. SIMPSON.
• Court: Colorado Court of Appeals

36 P. 638

5 Colo.App. 30

ROCKY FORD CANAL, RESERVOIR, LAND, LOAN & TRUST CO. v. SIMPSON.

Court of Appeals of Colorado

April 23, 1894

Appeal from district court, Otero county.

Action by Mary A. Simpson against the Rocky Ford Canal, Reservoir Land, Loan & Trust Company. From a judgment for plaintiff defendant appeals. Affirmed.

Charles E. Gast and Henry A. Dubbs, for appellant.

Gerry &amp Rittenhouse, for appellee.

THOMSON J.

Mary A Simpson, the plaintiff below, alleged in her complaint that the defendant company was a corporation organized under the laws of Colorado for the purpose of diverting water from the Arkansas river, and supplying it to the company's stockholders for the irrigation of their lands lying under the line of the company's ditch or canal; that the plaintiff owned a tract of land lying under the canal, and for the purpose of obtaining water for its irrigation, on the 1st day of June, 1891, purchased from the defendant 12 shares of its capital stock, receiving a certificate of ownership of the stock, duly signed and attested, and setting forth that she was entitled to the use of 2.16 cubic feet of water per second from the canal for the purpose of irrigating her land, subject to the by-laws, rules, and regulations of the company; that she thereupon caused the land to be prepared for cultivation, and prior to the 15th day of June, 1891, had planted it in different grains; that thereafter, until the 31st day of July, 1891, she frequently demanded water from the defendant for the irrigation of her crops, but the defendant furnished none, by reason of which her crops were dried up, destroyed, and wholly lost; and that the defendant was not prevented from furnishing the water by reason of anything contained in the company's by-laws, rules, and regulations. Judgment was demanded for the damage sustained. The defendant answered, admitting plaintiff's ownership of the land, the purchase of the stock, and the issuance of the certificate as set forth in the complaint; alleging that the water in the canal was for the sole use of the stockholders of the company, and that none was sold, or otherwise disposed of for profit; that the company's certificates of stock entitled stockholders to the use of water only when it flowed in or through the ditch; and denying that the defendant ever neglected or refused to furnish plaintiff with water according to the terms of her certificate, but averring that the canal was recently constructed, and was about 80 miles in length; that plaintiff's land was near the extreme lower end of the canal, which, although it had been carefully constructed, and was operated with diligence and care, was subject to accidents incident to new ditches, and, owing to breaks in its banks and walls, the time consumed in repairs, and flooding the ditch after repairs had been made, and by reason of the distant location of plaintiff's land, the defendant was unable to supply her with the usual amount of water during the time mentioned in the complaint. Defendant also alleged that the damage sustained by plaintiff was due to her own fault and negligence, in that she delayed planting her land until after the proper time, and neglected to take out laterals from the ditch, or to use the water which it contained. There was a replication which averred, among other things, that the land was planted in proper time, that the necessary laterals were constructed, and that, during the time the plaintiff was deprived of water, other stockholders were freely and fully supplied. The cause was tried to a jury, who returned a verdict for the plaintiff. No proof was made of the by-laws, rules, or regulations of the company; but it was alleged, and not denied, that there was nothing contained in them to excuse the failure complained of. It also appears from the...