Taughenbaugh v. Clark

• Citation: 40 P. 153,6 Colo.App. 235
• Parties: TAUGHENBAUGH et al. v. CLARK et al.
• Decision Date: 08 April 1895
• Court: Colorado Court of Appeals

40 P. 153

6 Colo.App. 235

TAUGHENBAUGH et al. v. CLARK et al.

Court of Appeals of Colorado

April 8, 1895

Appeal from district court, Garfield county.

Proceeding by petition by George F. Taughenbaugh et al. against George A. Clark et al. to reform the decree of the district court in declaring priorities and quantities to which different ditches were entitled. From the decree made therein petitioners appeal. Affirmed.

This was a proceeding by petition in the district court by appellants, the owners of the irrigating ditch, to reform the decree of the district court in declaring priorities and quantities to which different ditches were entitled, made in May, 1888, and for a readjustment of water rights and redistribution of the water in the district. The ditch of appellants took water from Beaver creek. The defendants were proprietors of or interested in other ditches taking water from the same stream. In the original hearing and decree fixing the rights of each, Mr. Taylor (attorney for appellants) was appointed referee under the statute, and proceeded to hear and determine the respective rights of different parties. He found the ditch of appellants (numbered 24) contemplated appropriating water to the extent of 90 cubic feet per minute, July 28, 1885. First enlargement, March 3, 1887 increasing its capacity and water appropriated to 510 cubic feet per minute. The ditch of J.A. Clark (No. 27) to date from September 5, 1885, with 120 cubic feet of water per minute. The Smith ditch (No. 47) to date from November 20 1886, with 70 cubic feet of water per minute. The Smith &amp Neve ditch (No. 48) to date from February 26, 1887, with 300 cubic feet of water per minute.

The following special findings in regard to the respective ditches became important in determining the rights of the different ditches, and so much of each as is deemed necessary are copied in extenso:

Ditch of appellants: "Work was commenced on or about July 28 1885. Considerable work was done thereon during that season and it was completed during the spring of 1886, and during that season about 20 acres of land was irrigated thereunder. The capacity of said ditch as originally built was about 90 cubic feet of water per minute of time; the dimensions thereof being from 8 to 10 inches deep, from 12 to 15 inches wide on bottom, with grade 3/8 inch to the rod, to which amount of water priority dates from July 28, 1885. That on or about March 3, 1887, the first enlargement thereon was commenced, whereby the dimensions of said ditch were increased to 2 1/2 feet wide on bottom slope of banks, one to one, depth of water flow 18 inches, grade remaining the same as before; and the computed capacity was thereby increased 510 additional cubic feet of water per minute, to which amount of water priority dates from said March 3, 1887. That in 1887 was irrigated under said ditch about 65 acres. There are under said ditch about 740 acres practicably irrigable lands. The entire amount of water appropriated by the ditch at present time is 600 cubic feet per minute. That the construction, enlargement, and uses of the waters thereby appropriated have been pursued with reasonable diligence."

The special finding in regard to the J.A. Clark ditch and Smith ditch are not given.

Those relating to the Smith & Neve ditch are as follows: "Work was commenced on said ditch on or about the 26th day of February, A.D.1887, and was completed during that year. The dimensions of said ditch are estimated at 2 1/2 feet on bottom; slope of banks one to one; depth of water flow, 1 ft.; grade 6 inches to the 100 feet; capacity computed at 100 cubic feet of water per minute, to which amount priority dates from said time. The work of constructing said ditch has, under the circumstances of this case, been pursued with reasonable diligence. There are about 25 acres of feasible irrigable lands under said ditch."

The findings of the referee appear to have been adopted by the district court, and the decrees of that court in regard to the rights of appellants' ditch and those of the Smith & Neve ditch (between which the principal controversy seems to exist) were as follows:

Appellants' ditch: "And it is hereby adjudged and decreed that there be allowed to flow into said ditch from said creek, for the use aforesaid, and for the benefit of the parties lawfully entitled thereto, under and by virtue of the appropriation by original construction priority No. 34, so much water as will flow into said ditch, it being estimated at from 12 to 15 inches wide on bottom, slope of banks one to one, depth of water flow 8 to 10 inches, with grade of 3/8 inch to the rod, computed at 90 cubic feet of water per minute of time. And that there be further allowed to flow into said ditch as aforesaid, for the use and benefit aforesaid, under and by virtue of the appropriation by first enlargement priority No. 66, so much additional water as will flow in said ditch from said creek, it being estimated at 2 1/2 feet wide on bottom, depth of water flow 18 inches, slope of banks and grade remaining the same, computed at 510 cubic feet of water per minute. The whole amount of water to which the ditch is at present entitled is 600 feet per minute of time. Provided, that 520 cubic feet of water per minute of said appropriation shall only be granted and allowed to flow into said ditch from said creek for the use and benefit aforesaid in proportion as said parties shall increase their feasibly irrigable lands thereunder over and above the amount of 65 acres in the ratio of 60 cubic feet of water per minute to 50 acres of such additional lands. And provided further, that said increase of said additional lands, and the user of the said proportionate additional amounts of water appropriated therefor thereon, be made by said parties with reasonable diligence."

The Smith & Neve ditch: That said ditch is entitled to priority No. 65. *** And it is hereby adjudged and decreed that there be allowed to flow into said ditch from said creek, for the use aforesaid, and for the benefit of the parties lawfully entitled thereto, under and by virtue of the appropriation by original construction priority No. 60,300 cubic feet of water per minute: provided, that all of said appropriation shall only be granted and allowed to flow into said ditch from said creek for the use and benefit aforesaid, in proportion as said parties shall bring under practicable cultivation and increase their feasibly irrigable lands thereunder, in the ratio of 60 cubic feet of water per minute to 50 acres of such additional land: and provided further, that said increase of such additional lands, and the user of the said proportionate additional amount of water appropriated therefor thereon, be made by said parties with reasonable diligence."

The allegations in the petition are, in effect: That the original finding of the referee and the degree of the court based upon it were erroneous, in that it only allowed petitioners 90 cubic feet of water per minute in priority of appropriation and date of July, 1885, and that the amount going to make up the 528 cubic feet per minute was decreed as of the date of March 3, 1887, when it should have been made as of the earliest date (July, 1885); also that the date of March, 1887, was erroneously given and decreed as the date of the first enlargement of appellants' ditch, when it should have been of June 7, 1886. That by decree the Smith & Neve ditch was given priority No. 65 as of February 26, 1887, when it should have been of October 13, 1887. That the Smith ditch, which was given priority No. 63, of the date of November 20, 1886, with 70 cubic feet of water per minute, had not sufficient irrigable land under it to warrant an appropriation of over 20 cubic feet per minute. That such ditch had been but very little used by the owner, and was practically abandoned.

The respondents George A. Clark, and Josephine A. Clark filed an answer, denying the material allegations in the petition, and setting up affirmatively that petitioners' ditch, by its original appropriation and priority No. 34, as shown by the evidence taken before the referee, was not entitled to 90 cubic feet of water per minute, or to more than 24 cubic feet of water.

There is no allegation in the petition charging any irregularity in the decree as far as the Clark ditch is concerned. Yet the owners of that are the only respondents and contestants, as shown by the pleadings. All that occurs in the petition is: "That the parties interested adversely to this application are [naming the owners of appellants' ditch and the Smith ditch, and the owners of the J.A. Clark ditch]." Much testimony was heard upon the trial pertaining to each of the ditches. The court found and...