South Boulder & R.C. Ditch Co. v. Marfell

• Decision Date: 05 December 1890
• Citation: 15 Colo. 302,25 P. 504
• Parties: SOUTH BOULDER & R. C. DITCH CO. v. MARFELL et al.
• Court: Colorado Supreme Court

25 P. 504

15 Colo. 302

SOUTH BOULDER & R. C. DITCH CO. v. MARFELL et al.

Supreme Court of Colorado

December 5, 1890

Appeal from district court, Boulder county.

This cause was tried on an agreed statement of facts. Appellees including Mitchell, were consumers of water from appellant's ditch. Mitchell made with appellant the following instrument of writing: 'State of Colorado County of Boulder--ss.: This agreement, made and entered into this fifth day of June, 1886, by and between the South Boulder and Rock Creek Ditch Company, of the one part, and Joseph Mitchell, of the other part, witnesseth: That the said company, for and in consideration on the sum of one dollar to it paid by the said Joseph Mitchell, the receipt of which is hereby acknowledged, and for the additional annual rental of one hundred and fifty dollars, to be paid by the said Joseph Mitchell, agrees that, after reserving for its own special use one thousand inches of water out of the amount decreed it, to furnish to the said Joseph Mitchell, out of the overplus to which it is entitled by virtue of said decree, one hundred inches of water, according to the company's system of measurement, (provided always there is sufficient water in the South Boulder creek to furnish the same according to the decree rendered and priorities of ditches taking water therefrom,) upon the following conditions: The company is to keep the ditch in good repair and of sufficient dimensions to carry the amount of water decreed it, and to furnish to said Joseph Mitchell the said one hundred inches of water year after year, for and during the irrigation season of each and every year, so long as the said Joseph Mitchell shall pay the said annual rental therefor. And it is expressly agreed to, by and between the parties hereto, that the said Joseph Mitchell purchases and takes said interest in and to said water according and subject to the customs of consumers of water from said ditch; and that, in the event of his failure to get his full quota of water, or any part thereof, as aforesaid, by reason of a scarcity of water in said creek, and reservation of water by said company, and the respective interests of prior claimants, he will make no claim to or for a pro rata distribution of what water may be running in said ditch at such time, but will concede to all claimants and consumers of water from said ditch prior to him in point of time the full amount of their respective claims, (priorities to be numbered according to dates of agreements, and such agreement to be executed in duplicate.) And upon the failure of the said Joseph Mitchell to pay said annual rental as aforesaid, he will forfeit and relinquish all rights and claims whatsoever both against the said company and in or to the use of said water from said ditch. In witness whereof the said parties have hereunto affixed their names the day and date above written. THE SOUTH BOULDER AND ROCK CREEK DITCH COMPANY. By A. C. GOODHUE, its President. JOSEPH MITCHELL. Witness: MARY E. MILLER, Sec'y.' The agreements made by the other appellees with appellant are precisely similar in general terms to the foregoing, and therefore it was deemed unnecessary to set them out in the record. Appellees received water for the year 1886, paying therefor the amount specified in the writing; but in January, 1887, they, with other landowners under appellant's ditch, petitioned the county commissioners, in accordance with the statute in that behalf enacted, to establish an annual rate of charges for the delivery of water from appellant's ditch. In pursuance of this petition, the commissioners fixed such rate at $1 per cubic inch. Appellees tendered this amount for the year 1887, but appellant refused to accept less than $1.50 per inch, as provided in the alleged agreement. Appellees paid the sum thus demanded, taking receipts, however, showing that 50 cents per inch thereof was paid under protest, and providing for refunding the same, if, in an agreed case to be brought, appellant's right thereto should be judicially denied. The present action being posecuted in accordance with the above stipulation, judgment was duly rendered by the court below for the amount thus claimed by appellees.

Thomas R. Owen, for appellant.

Richard H. Whiteley and Richard H. Whiteley, Jr., for appellees.

HELM, C.J., ( after stating the facts as above.)

The determination of this controversy depends upon our construction of the instrument executed by the carrier (appellant) with its consumers. For present purposes, it is only necessary to consider the following principle features of the writing in question: First, the affirmative promise by appellant to deliver to its consumer a certain quantity of water annually, upon the annual payment of the specified consideration therefor; and, second, the nature and extent of the penalty affixed to the consumer's failure or omission to make this payment and receive the water. It will be observed that, in consideration of the sum of $1, the receipt whereof is acknowledged, and the yearly payment of an 'annual rental' of $150, appellant promises to deliver to its consumer named in the instrument before us for use during each irrigating season, 100...