Stuart v. Davis

• Decision Date: 09 March 1914
• Citation: Stuart v. Davis, 25 Colo. App. 568, 139 P. 577 (Colo. App. 1914)
• Parties: STUART v. DAVIS et al. [d]
• Court: Colorado Court of Appeals

139 P. 577

25 Colo.App. 568

STUART v. DAVIS et al. ^[d]

Court of Appeals of Colorado

March 9, 1914

Error to District Court, Jefferson County; Greeley W. Whitford Judge.

Action by Thomas B. Stuart against A.L. Davis and others. Judgment for defendants, and plaintiff brings error. Reversed, with directions.

T.B. Stuart, C.A. Murray, and J.E. McCall, all of Denver, for plaintiff in error.

Geo. B Campbell and Wm. N. Vaile, both of Denver, for defendants in error.

BELL J.

It appears from the record that more than a half century ago the Mining ditch was constructed from a head gate on Clear creek a natural stream, to the premises now owned by Thomas B Stuart, plaintiff and plaintiff in error, in Jefferson county, Colo., with a carrying capacity of 3 1/2 cubic feet of water per second of time, and that the owners of said ditch carried water therethrough, and put it to a beneficial use on said premises in washing a number of acres of gravel for placer gold. In 1883 the Wadsworth Ditch Company was incorporated as a mutual water company for mining and irrigation purposes, with 96 shares of stock, taking over and absorbing said Mining ditch, or the greater part thereof, as the Wadsworth ditch. The first appropriation of 3 1/2 cubic feet from Clear creek was adjudicated to the Wadsworth ditch as priority No. 1 from Clear creek, based upon said beneficial use, and the second appropriation of 9 1/2 cubic feet per second of time was decreed to said Wadsworth ditch as priority No. 48. The ditch runs through the town of Arvada, in said county, from the western to the eastern boundary, and a number of the stockholders and officers of the company reside and own property in said town, and, at the time complained of, were officers also thereof, and watered their town premises, more or less, from the waters of said ditch. In 1899, and for a long period of time subsequent thereto, one Lloyd J. Caldwell owned the entire premises now possessed by Stuart and the defendants Davis, Nelson, and the Hamiltons, all of which were watered through said Wadsworth ditch, and all of which are situated east of Graves avenue, except the premises now owned by Davis, which are situated immediately west of said avenue and the premises owned by Stuart. Said Graves avenue seems to be a common thoroughfare passing through said town and county, and maintained jointly by them. Plaintiff and the defendants Nelson and the Hamiltons are and were the only users of water from the ditch east of Davis' premises, and received the same from the main ditch at three points on the eastern boundary of said premises, and conducted it across said avenue in three gravity flumes. The tail waters of the ditch were conducted across said avenue in one of those flumes, and partly supplied to Nelson, and partly wasted over the premises of Stuart into Ralston creek, a tributary of Clear creek. Stuart also received water from another point in said main ditch and conducted it in a syphon under said avenue in sufficient quantities only to irrigate about 83/100 of an acre of lawn and shrubbery about his buildings. This syphon was originally built by Caldwell, when he owned said premises, under the direction of the officers of said town, and with material furnished him therefor as a substitute for a small wooden flume which he had placed under said avenue for the purpose of carrying water to his premises to be used in mixing mortar for building purposes. During all the times herein mentioned prior to the changes complained of, the whole of said Wadsworth ditch was an open gravity ditch running upon a regular grade, and said ditch company owned an unquestioned easement necessary for the convenient use and maintenance thereof. It ran along the entire southern boundary line and more than half along the eastern boundary line of the premises now owned by Davis, and was in use and operation at the time of his purchase of said premises. In the year 1909 the defendants Davis, Nelson, Hamiltons, and the Wadsworth Ditch Company agreed among themselves to and did divert the waters of the ditch belonging to said Nelson and the Hamiltons at a point near the western boundary of the premises of Davis, and made a spillway at said point of diversion for the wasting of any surplus water that might come down said Wadsworth ditch, so that no one would be required to use any part of the ditch east of the western boundary of the Davis land, except Stuart; and, under this agreement, Davis, with the consent of the defendants just named and over the protests of Stuart, destroyed the open ditch across his premises, including the head gates of the plaintiff and the tail gate of the ditch company, and substituted therefor a line of 12-inch earthen pipe buried along his southern line. At the same time that those changes were made, the town of Arvada and the county of Jefferson lowered Graves avenue between the premises of Davis and Stuart from 3 to 5 feet, and thereby destroyed the connections to several of the ditches on Stuart's land, made difficult the entrances to his driveways, damaged the general condition and appearance of his premises along said avenue, and substituted a 12-inch syphon for the flumes and syphon that theretofore conducted his water from the main ditch on Davis' premises. Plaintiff made a good-faith effort to use the changed conditions forced upon him against his protests; but said pipe line at times became clogged with mud, and, when there was not a full flow at the end of the ditch, there was not sufficient pressure to force the water through the pipe onto his premises, and two large reservoirs, which he owned near his buildings for the use of his fowl and domestic animals, and a complete system of irrigation ditches throughout his premises went dry, and were rendered useless, and the witnesses testified that, if those changed conditions were allowed to continue, the property, which is said to be worth from $10,000 to $40,000, would be damaged to the extent of one-half of its value. Soon after Davis purchased his premises, he notified Stuart and the secretary of the ditch company that he had taken counsel and was advised that he had a right to destroy the open ditch upon his premises, and substitute a buried pipe therefor, and announced his intention of acting under this advice, and it was also made known about the same time that the change in Graves avenue was contemplated by the town and county authorities. The plaintiff, the secretary of the ditch company, and the husband of defendant Nelson protested against the intended changes, and, after conferring with the secretary of the ditch company, plaintiff agreed to withdraw his protests if Davis would agree in writing to make such changes only as would not interfere in any manner with the supply and distribution of the water theretofore enjoyed by plaintiff, Nelson, and the Hamiltons, and further agree to maintain such changed conditions in like manner, and be responsible for all damages occasioned by his failure so to do. Stuart prepared a proposed agreement to this effect and submitted it to the secretary of the ditch company for the signature of Davis, who refused to sign it, and the changes as herein recited were proceeded with and made over Stuart's vigorous and renewed protests, in violation of his vested rights and interests, and to the great damage and destruction of his property. The evidence as far as introduced indicates that the ditch company, Davis, and the officers in charge for the town of Arvada and the county of Jefferson were co-operating to destroy the open ditch on the premises of Davis, and reduce the grade of Graves avenue. It has not been shown that those changes would benefit either the ditch company or the plaintiff, but it is contended by the company that the change in the highway was a necessary improvement, that the substituted pipe and syphon is a change which benefits Stuart, that he accepted and approved of the same, and is therefore estopped from complaining against it; and it is urged by the defendants that he constructed a cement ditch on his premises in his preparation to meet the changes. The evidence, however, utterly contradicts all statements in the pleadings or elsewhere to the effect that he consented or intended to consent to any of the changes, other than as set forth in the agreement proposed and submitted for the signature of Davis. He admits that he built the cement ditch at a cost of about $25, and shows throughout his evidence that, while those changes were being imposed upon him against his written protests, he did everything within reason to accept the changes if they would not considerably interfere with the rights and benefits theretofore enjoyed by him. In the agreement proposed by him he reserved the right to have the old conditions restored if the changes should prove to be inefficient, or if Davis should fail in his duties to maintain them, and at all times he insisted that the changes, if any, should be such as not to interfere with the supply and distribution of water enjoyed by him, Nelson, and the Hamiltons, including all waste water, previous to any such changes. Notwithstanding his protests and demands, the evidence shows the continued inefficiency of the new methods to carry even two shares of water that belonged to him individually, and he testified that the spill water was changed to a point from 3 to 5 feet below his property so that it is impossible to receive any thereon. The terms insisted upon by him in his proposed agreement were most reasonable and usual under the conditions that existed, and his attitude throughout, as evidenced by the...