Schilling v. Rominger

Citation4 Colo. 100
Case DateApril 01, 1878
CourtSupreme Court of Colorado

4 Colo. 100

SCHILLING et al.
v.
ROMINGER.

Supreme Court of Colorado

April, 1878


Appeal from District Court of Saguache County.

THE complainant's bill states in substance:

That complainant on the 26th of June, 1874, settled upon the west half of north-west quarter, the south-east quarter of north-west quarter and the south-west quarter of north-east quarter of section twenty-one, township forty-five, north, range 10, east New Mexican Meridian, as a homestead and that he has continued to reside thereupon. That theretofore on the 29th of April, 1874, the defendant Schilling settled upon the west half of south-east quarter and the east half-of south-west quarter of section twenty-one, township forty-five north, range 10 east New Mexican Meridian, adjoining complainant's lands, and that Schilling, the defendant, continues [4 Colo. 101] to reside thereon. That the said land of defendant Schilling is occupied and cultivated by him and the defendant Albers, as tenants in common. That in July, 1874, complainant and defendant Schilling and Albers agreed to construct an irrigating ditch from a point on Major creek, in said county of Saguache, four or five miles distant from their said lands, by the terms of which agreement the complainant was to have one-half of the water to be run in said ditch from said creek, and defendants Schilling and Albers the other half. That pursuant to said agreement, complainant and defendants Schilling and Albers constructed said ditch to and upon their said lands and thereby took all the available water from Major creek and prevented the same from wasting. That said Major creek is a small stream without more water than is necessary to irrigate the lands of complainant and defendants Schilling and Albers, and otherwise than from said creek their said lands are without irrigating facilities. That at the time of their said appropriation of the water of Major creek, the same was not owned or claimed by any other person than complainant and defendants Schilling and Albers. That on or about November 31, 1874, defendants E. W. Bennett and Ira S. Bennett settled upon lands over which said ditch was constructed, and knowing of the said appropriation of the water in Major creek on the 1st of June, 1876, they began to claim and use water from said creek and obstructing the flow of the water therein by shutting off the same and constructing other ditches from said creek, and now continue so to do, and, aided and encouraged by defendants Schilling and Albers, totally deprived complainant of the use of any part of said water. That complainant has planted upon his lands fifteen acres of oats which have failed to grow and mature by reason of the said interference, in consequence of which he has lost said crop and is damaged not less than $300. That complainant has applied frequently to said defendants, Schilling, Albers, E. W. and Ira S. Bennett, to allow him the use of the water in said ditch and to [4 Colo. 102] desist from further obstruction of the flow of the water therein, but confederating together to injure him, the said defendants refuse to allow him any part of said water, or to desist from obstructing the same in said ditch, and sometimes denying and at other times admitting the interest of complainant in the water of said ditch, but at same time deny and prohibit him by force and threats from the use of any part of said water; prays that defendants be decreed to make satisfaction to complainant for all damages done by them; that said defendants by injunction of said court be restrained from obstructing the flow of water in said ditch, and from using more than one-half of same and from interfering with complainants in the use and enjoyment of one-half of said water; that defendants be compelled to fill up the new ditches cut by them, and to re-open those made by complainant and defendants Schilling and Albers, and to restore them to same condition as when filled up by said defendants. Prays for writ of injunction therefor and for summons.'

The only material averment in the answer necessary to be inserted here is in reference to the agreement alleged in the bill and to which the defendant answered:

'That in July, 1874, complainant proposed to defendants Schilling and his tenant, Albers, that they vacate a portion of their said ditch, adjacent to said Major creek, and that complainant and defendants (Schilling and Albers) would take out a ditch near the mouth of the canon, two miles further up said creek, and by so doing they would furnish a new channel for the flow of said water and save the same from sinking as it did in the old bed of said creek; and by so doing they would have two heads of water reaching the said land of defendant Schilling. That it was agreed between defendants Schilling and Albers and the complainant, that if by so constructing said ditch there was not more water than was necessary to irrigate the lands of said Schilling, and for his domestic uses, then complainant would not claim any interest in either ditch or the [4 Colo. 103] water flowing therein.' And that the ditch was constructed in accordance with this agreement. Replication was filed and the cause was referred to a master to take proofs. Upon the coming in of the master's report, the cause was heard upon the bill, answer, replication and report, and a decree rendered in favor of the plaintiff in accordance with the prayer of the bill, and damages were awarded in the sum of $187.50. The defendants prayed an appeal. In this court the appellants assign for error: '1. That the agreement between the appellants and...

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36 practice notes
  • U.S. v. City and County of Denver, By and Through Bd. of Water Com'rs, Nos. 79SA99
    • United States
    • Colorado Supreme Court of Colorado
    • November 29, 1982
    ...to meet the stark necessities of our environment. See, e.g., Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882); Schilling v. Rominger, 4 Colo. 100 (1872); Yunker v. Nichols, 1 Colo. 551 The appropriation doctrine arose from the customary uses of the early settlers--most notably miners--of t......
  • State of Wyoming v. State of Colorado, No. 3
    • United States
    • United States Supreme Court
    • June 5, 1922
    ...their Constitutions and statutes and their courts have been uniformly enforcing it. Yunker v. Nichols, 1 Colo. 551; Schilling v. Rominger, 4 Colo. 100; Coffin v. Left Hand Ditch Co., 6 Colo. 443; Thomas v. Guiraud, 6 Colo. 530; Strickler v. Colorado Springs, 16 Colo. 61, 26 Pac. 313, 25 Am.......
  • Buskirk v. Red Buttes Land and Live Stock Company, 821
    • United States
    • United States State Supreme Court of Wyoming
    • May 1, 1916
    ...early held in Colorado that an action will lie for a wrongful diversion. (Yunker v. Nichols, 1 Colo. 551 (1872); Schilling v. Rominger, 4 Colo. 100 (1878); Crisman v. Heiderer, 5 Colo. 589 (1881). And in many cases since the later statute was enacted providing for water commissioners. [24 W......
  • Himonas v. Denver & RGWR Co., No. 3929.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 23, 1949
    ...v. Garcia, 17 N.M. 445, 130 P. 118, 119; Young v. Dugger, 23 N.M. 613, 170 P. 61; Yunker v. Nichols, 1 Colo. 551; Schilling v. Rominger, 4 Colo. 100; De Graffenried v. Savage, 9 Colo.App. 131, 47 P. 902; Ellinghouse v. Taylor, 19 Mont. 462, 48 P 757: Oury v. Goodwin, 3 Ariz. 255, 26 P. 376;......
  • Request a trial to view additional results
36 cases
  • U.S. v. City and County of Denver, By and Through Bd. of Water Com'rs, Nos. 79SA99
    • United States
    • Colorado Supreme Court of Colorado
    • November 29, 1982
    ...to meet the stark necessities of our environment. See, e.g., Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882); Schilling v. Rominger, 4 Colo. 100 (1872); Yunker v. Nichols, 1 Colo. 551 The appropriation doctrine arose from the customary uses of the early settlers--most notably miners--of t......
  • State of Wyoming v. State of Colorado, No. 3
    • United States
    • United States Supreme Court
    • June 5, 1922
    ...their Constitutions and statutes and their courts have been uniformly enforcing it. Yunker v. Nichols, 1 Colo. 551; Schilling v. Rominger, 4 Colo. 100; Coffin v. Left Hand Ditch Co., 6 Colo. 443; Thomas v. Guiraud, 6 Colo. 530; Strickler v. Colorado Springs, 16 Colo. 61, 26 Pac. 313, 25 Am.......
  • Buskirk v. Red Buttes Land and Live Stock Company, 821
    • United States
    • United States State Supreme Court of Wyoming
    • May 1, 1916
    ...early held in Colorado that an action will lie for a wrongful diversion. (Yunker v. Nichols, 1 Colo. 551 (1872); Schilling v. Rominger, 4 Colo. 100 (1878); Crisman v. Heiderer, 5 Colo. 589 (1881). And in many cases since the later statute was enacted providing for water commissioners. [24 W......
  • Himonas v. Denver & RGWR Co., No. 3929.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 23, 1949
    ...v. Garcia, 17 N.M. 445, 130 P. 118, 119; Young v. Dugger, 23 N.M. 613, 170 P. 61; Yunker v. Nichols, 1 Colo. 551; Schilling v. Rominger, 4 Colo. 100; De Graffenried v. Savage, 9 Colo.App. 131, 47 P. 902; Ellinghouse v. Taylor, 19 Mont. 462, 48 P 757: Oury v. Goodwin, 3 Ariz. 255, 26 P. 376;......
  • Request a trial to view additional results

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