Sand Creek Lateral Irrigation Co. v. Davis

• Decision Date: 21 March 1892
• Citation: 29 P. 742,17 Colo. 326
• Parties: SAND CREEK LATERAL IRRIGATION CO. v. DAVIS.
• Court: Colorado Supreme Court

29 P. 742

17 Colo. 326

SAND CREEK LATERAL IRRIGATION CO. v. DAVIS.

Supreme Court of Colorado

March 21, 1892

Appeal from Weld county court.

Condemnation proceedings by Joel E. Davis against the Sand Creek Lateral Irrigation Company. From a judgment for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by ELLIOTT, J.:

This was a condemnation proceeding under the act of eminent domain. Mills' Ann. St. c. 45. The petitioner, Davis claimed and sought to procure from the defendant, the Sand Creek Lateral Irrigation Company, a right of way through its ditch for the conveyance of water to irrigate his lands. He based such claim upon an act of the general assembly approved February 12, 1881, (Sess. Laws, p. 164; Mills' St. § 2261 et seq.) The act is as follows: 'Section 1. That no tract or parcel of improved or occupied land in this state shall without the written consent of the owner thereof, be subjected to the burden of two or more irrigating ditches constructed for the purpose of conveying water through said property to lands adjoining or beyond the same, when the same object can feasibly and practicably be attained by uniting and conveying all the water necessary to be conveyed through such property in one ditch. Sec. 2. Whenever any person or persons find it necessary to convey water, for the purpose of irrigation, through the improved or occupied lands of another, he or they shall select for the line of such ditch through such property the shortest and most direct route practicable upon which said ditch can be constructed with uniform or nearly uniform grade, and discharge the water at a point where it can be conveyed to and used upon the land or lands of the person or persons constructing such ditch. Sec 3. No person or persons having constructed a private ditch for the purposes and in the manner hereinbefore provided shall prohibit or prevent any other person or persons from enlarging or using any ditch by him or them constructed, in common with him or them, upon payment to him or them of a reasonable proportion of the cost of construction of said ditch.' The adjudication in the county court was favorable to the petitioner. The defendant company brings this appeal.enlarging or using the same in common with them upon payment to them of a reasonable proportion of the cost of construction. Held, that the fact that a ditch, sought to be used by other persons than the owners, is owned by a corporation, does not exempt the ditch from the operation of the statute.

Syllabus by the Court

1. By the act of 1881 improved or occupied lands cannot, under certain circumstances, be subjected to the burden of two or more irrigating ditches, when the same object can feasibly and practicably be attained by one ditch. A private ditch may be enlarged and used in common by different parties, and the mere fact that an irrigating ditch is owned by an incorporated company does not entitle the ditch to exemption from the operation of the statute.

2. In proceedings under the act of eminent domain the question of the necessity or feasibility of the taking must be tried, if at all, by a board of commissioners appointed by the court. Where the owner of the property sought to be taken goes to trial before a jury on the question of compensation and damages without indicating that he desires the question of necessity to be tried, he may be held to have waived the trial and determination of the latter question.

3. The right of way for the conveyance of water through an irrigating ditch is a property right, and has a money value; and where an interest in such right of way is sought to be taken by condemnation proceedings, the value of such interest must be ascertained and specified in the verdict, as the statute provides, without qualification. Upon a proper verdict the court may authorize the petitioner to occupy, enlarge, improve, and use the ditch in common with the original owner, but cannot require such owner to perform work or make expenditures for the purpose of adapting the ditch to petitioner's use. The court may make reasonable and suitable orders specifying convenient time and opportunity for taking possession and enlarging the ditch, provided such orders do not conflict with the substantial rights of the parties.

Garrigues & Look, for appellant.

J. W. McCreery and A. C. Patton, for appellee.

ELLIOTT, J., ( after stating the facts.)

The petitioner, Davis, sets forth in his petition, among other things, that he is the owner of certain agricultural lands, and that, for a number of years past, he has run the water for the irrigation of said lands from the source of supply through and over a long and difficult route, over dikes and indirect courses, causing great and unnecessary labor and expense, besides causing failure of his regular and proper supply of water, and of his use and enjoyment of the same. He further avers that a feasible and practicable route for the conveyance of water to a portion of his said lands lies in and along the route of, and within the ditch or ditches owned by, the defendant, the Sand Creek Lateral Irrigation Company. The petition describes the lands to be irrigated; states the amount of water petitioner is entitled to convey and use for that purpose, and sets forth in detail the line and course of the route which he deems most feasible and practicable for conveying the water into and through defendant's ditch to his said lands; avers that he cannot agree with the defendant company as to the terms of running said water through its ditch; and so prays for the condemnation of a right of way for such purpose according to the statute in such case made and provided.

1. It was objected below, by demurrer to the petition and otherwise, that the ditch of the defendant company is not subject to the easement or use sought by petitioner. The same objection is renewed in this court by various assignments of error. The ground of objection is that defendant's ditch is not a private ditch within the meaning of the act of 1881, (Sess. Laws, p. 164,) upon which this proceeding is founded. No authority is cited in support of this objection. The case of Burnham v. Freeman, 11 Colo. 601, 19 P. 761, is not in point. It is true the defendant is an incorporated company, and the irrigating ditch through which the right of way is sought to be condemned is the property of said corporation; but for aught that appears the ditch is nevertheless used for private, instead of public, purposes. The whole act of 1881 must be considered in determining the meaning of the term 'private ditch,' as used in section 3. On the face of the petition, it appears that defendant's ditch was constructed and operated through improved or occupied land for the purpose of conveying water to lands adjoining or beyond the same, and that petitioner's lands lie beyond. The petitioner further shows that it is feasible and practicable to convey through said ditch the water necessary for the irrigation of petitioner's lands, and that it is necessary to procure the right of way through said ditch for such purpose. Hence, unless some matter of defense is shown to exist, the defendant's ditch must be held subject to the easement or right of way claimed by petitioner. The mere fact that parties constructing an irrigating ditch have become incorporated, does not entitle the ditch to exemption from the operation of the statute. The court did not err in overruling the objections to the petition. Tripp v. Overocker, 7 Colo. 72, 1 P. 695; Downing v. More, 12 Colo. 321, 20 P. 766.

2. The defendant answered, and, among other things, denied that the route through which, for a number of years, petitioner had run the water for the irrigation of his lands, was long, difficult, or unusually expensive, but alleged that it was ample, sufficient, and in every way practicable, convenient, economical, and feasible, when kept in good repair, and that it was out of repair because of petitioner's negligence, and for no other reason. Numerous matters were alleged in the answer, controverting petitioner's claim to a right of way through defendant's ditch. Replication being filed, the defendant demanded a jury, which was allowed, and a trial by jury was entered upon. It is conceded that the bill of exceptions does not contain, and that it was not intended to contain, all the evidence. It appears, however, that when the evidence had all been introduced the court, among other things, charged the jury, in substance, that the only question submitted for their determination was the amount to be paid by petitioner as compensation and damages to the defendant company for the right of way through its ditch for the conveyance of water for petitioner, as prayed for. The court instructed the jury to return a verdict describing the property, specifying its value, also the damages and benefits, conformably to the statute, (section 1732, Mills, St.,) but expressly withheld from them the determination of any other question. To the giving of such charge, counsel excepted, and upon the retirement of the jury requested the court to 'appoint a board of commissioners, of not less than three freeholders, to ascertain and determine the necessity of taking the lands and franchises and property mentioned and prayed for in the petition of the petitioner in this cause, pursuant to the statute in such case made and provided.' This request was denied. The cause was submitted upon the charge as given, and the jury returned a verdict, the terms of which will be noticed hereafter. The motion of defendant for a new trial was overruled, and the court gave judgment, rule, and decree in favor of petitioner. This action of the court is assigned for error.

Counsel for appel...