Schwartz v. King
| Decision Date | 06 May 1918 |
| Docket Number | 9017. |
| Citation | 172 P. 1054,65 Colo. 48 |
| Parties | SCHWARTZ v. KING et al. |
| Court | Colorado Supreme Court |
Error to District Court, Garfield County; John T. Shumate, Judge.
Petitioner of C. A. King and others to have made absolute the conditional parts of the water adjudication decree to which Sheridan N. Schwartz protested. Judgment for petitioners, and protestant brings error. Affirmed.
C. W. Darrow, of Glenwood Springs, for plaintiff in error.
A. L Beardsley, of Glenwood Springs, for defendants in error.
This is a review of a judgment on petition of C. A. King and others to have made absolute the conditional parts of a decree rendered in a water adjudication on May 5, 1888. The decree is a part of a general one adjudicating water rights in Water District No. 45. Protest was filed by Sheridan N. Schwartz in the court below, and upon trial the issues were found for the petitioners, with decree and judgment accordingly. The protestant brings the cause here for review on error. In this opinion he will be designated as defendant, and petitioners as plaintiffs.
Plaintiffs are the owners of the Talmadge and Gibson Ditch, taking water from East Divide Creek, in Water District No. 45. Their priorities are numbered 36, dating from August 14, 1885, and calling for 372 cubic feet of water per minute of time; No 49, on account of the first enlargement of said ditch, dating from April 10, 1886, calling for 315 cubic feet of water per minute of time; and No. 82, dating from July 9, 1887, calling for 100 cubic feet of water per minute of time, being water for approximately 656 acres of land, under the general decree of May 5, 1888.
This general decree was absolute as to only 118 acres, and the balance contingent upon the bringing of the remainder of the land under irrigation with reasonable diligence. Plaintiffs set up that they had, with reasonable diligence, increased the irrigable lands under their ditch [65 Colo. 50] to 450 acres, and prayed that this additional amount of water be made absolute, with 300 cubic feet of water per minute of time to priority No. 36, from August 14, 1885, and 240 cubic feet per minute of time to priority No. 49, as of date April 10, 1886.
Defendant is the owner of the Johnson Ditch No. 70A, and of priority No. 114A, calling for 72 cubic feet of water per minute absolutely, and 6 cubic feet conditionally, dated April 14 1893, the decree for which was entered December 3, 1907 without notice to plaintiffs or others interested. He claims in substance that neither the plaintiffs nor their grantors have brought additional lands under cultivation with reasonable diligence, so far as his priority, No. 114A, is concerned; that by reason of the long delay any relief granted them should be subject to his priority; since he has been making beneficial use of all the water adjudicated to him long prior to the use by plaintiffs of any water for additional land. Upon hearing of testimony the conditional parts of the decree of May 5, 1888, were made absolute, according to the prayer of the petition, subject to prior appropriations, but not subject to that of defendant.
The only question to be determined is whether plaintiffs were reasonably diligent in making beneficial use of their conditional allotments of water. It appears that in 1888 and 1889 the lands for which the water was decreed were incumbered by trust deeds by their owners, for the benefit of an investment company, which later failed and made an assignment; and that the land passed to various trustees assignees and successors in trust, who were non-residents, and who never were on the land. For the period of approximately ten years no new lands were brought under irrigation by any one. It then passed to others, who made beneficial use of the water upon increased acreage, until, at the time of the filing of the petition, water had been put to beneficial use upon...
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