Sorensen v. Town of Greeley

• Decision Date: 18 October 1887
• Parties: SORENSEN v. TOWN OF GREELEY.
• Court: Colorado Supreme Court

15 P. 803

10 Colo. 369

SORENSEN v. TOWN OF GREELEY.

Supreme Court of Colorado

October 18, 1887

Commissioners' decision. Error to district court, Weld county.

This was an action by plaintiff, Hans Sorensen, against the defendant, for $284 damages for injury to his crop occasioned by the destruction of the flume and lateral conveying the water supply thereto. It appears from the evidence produced by plaintiff that in the spring of 1881 the plaintiff had a lease of three lots in the town of Greeley. These lots were on the east side of the U. P. Ry. track, being the old D. &amp P. Ry. track, and the Mill-Power canal was on the west side of this track. The Mill-Power canal was a canal for conveying water for mill-power purposes, irrigation of land not within the town, and for land and lots within the town, and for household purposes for the people in the town of Greeley. The canal belonged to Bruce F. Johnson, with reserved rights in the town of Greeley for water for irrigation of the land and lots within the town, and for household purposes, for which the town had control of the canal, with right to assess the persons so using the water therefrom, and the plaintiff had right to water therefrom for the irrigation of said lots. In the spring of this year, the plaintiff planted the said lots in garden vegetables, and, in order to get the water from the said canal to his lots, plaintiff took the same out of the canal on the west side of and near to the said railroad, and with the aid of the section hands employed on the railway, he put a flume under the railway track, and then he ran a small lateral down the side of the track a distance of two or three hundred feet to the lots, and so conveyed the water to and irrigated his lots until the twenty-sixth day of July, when the railway company commenced work there to raise the railway track, and build a bridge at the place where plaintiff's flume was, and did so raise the track for some distance, and did so build a bridge at that place. The plaintiff's flume was destroyed on the first day of the work, as the work commenced at that point, and its destruction was thereby necessary. By this act, plaintiff's water supply for his lots was prevented from passing over that way, and, plaintiff failing to convey the water by any other way, his crop thereon suffered. On the twentieth day of July, 1881, the defendant, the town of Greeley, passed an ordinance granting the right to said Bruce F. Johnson to change the course of the said canal, so as to occupy certain streets lying east of the said railway of the U. P. Ry. Co. and flume and lateral of the plaintiff. The place where the flume was, and where the bridge was built on the railway, under which the new canal ran, was on Jefferson avenue, and the railway of the U P. Ry. Co.

It also appears, from the evidence, that the force of men who raised the railway track and built the bridge were in the employ of the U. P. Ry. Co.; that this same force of men dug the new way for the said canal over the said streets, and commenced that work about one week after they had commenced raising the railway track; the section men and this force of men working under one superintendent the first week, and the said flume and lateral of plaintiff's being taken away by the said section men. The whole of said work occupied about 30 days. The old canal was not disturbed until after this work was done, but still continued to carry water therein. It appears from plaintiff's testimony that he could have taken water from the canal to his lots by another way, but that it would have cost him more than his crop was worth: The ordinance above referred to and another ordinance, which were read in evidence, are as follows:

'Ordinance No. 29. Vacating Portions of Olive Street and Washington Avenue for the Mill-Power Canal.

'Be it ordained by the board of trustees of the town of Greeley, state of Colorado:

'Section 1. That so much of the north half of Olive street in the town of Greeley, state of Colorado, as lies between Jefferson avenue and Washington avenue, and so much of the east half of Washington avenue as lies between the south half of Olive street and the point of intersection of said Washington avenue with said Mill-Power canal as at present constructed, be, and the same is hereby, vacated.

'Sec. 2. Be it further ordained that Bruce F. Johnson is hereby authorized and empowered to change the course of his Mill-Power canal along the line of said Olive street and Washington avenue, and to occupy thereon the said Mill-Power canal upon said portions of said streets vacated by section 1 of this ordinance.

'Passed and adopted this twentieth day of July, 1881.

'DANIEL HAWKS, Mayor.

'Attest: B. F. MARSH, Recorder.'

'Ordinance No. 27. Vacating a portion of Jefferson avenue, and granting the use of the said portion, and the right to lay down railroad tracks thereon, to the Greeley, Salt Lake & Pacific Railway Company.

'Be it ordained by the board of trustees...