Townsend v. Fulton Irrigating Ditch Co.

• Decision Date: 21 March 1892
• Citation: 17 Colo. 142,29 P. 453
• Parties: TOWNSEND v. FULTON IRRIGATING DITCH CO.
• Court: Colorado Supreme Court

29 P. 453

17 Colo. 142

TOWNSEND v. FULTON IRRIGATING DITCH CO.

Supreme Court of Colorado

March 21, 1892

Appeal from district court, Arapahoe county.

Mandamus by Manley B. Townsend against the Fulton Irrigating Ditch Company to compel the delivery of water for irrigation. The alternative writ was issued in favor of petitioner, but on final hearing judgment was rendered for defendant. Petitioner appeals. Affirmed.

Syllabus by the Court

1. The writ of mandamus is not an appropriate remedy to secure a perpetual right to the use of water for irrigation.

2. Proceedings by mandamus to compel the delivery of water for irrigation are necessarily somewhat summary in their nature; to be effective, the relief must be immediate and to this end trial courts should be liberal in matters of pleading and practice.

3. Trial courts, by seeing and hearing the witnesses, enjoy superior advantages for weighing the evidence and determining questions of fact.

4. In general, it is inexpedient and contrary to good practice to attempt to review a cause, except so far as counsel give assistance by brief and argument.

C. W. Cover, for appellant.

Benedict & Phelps, for appellee.

ELLIOTT J.

This appeal is entertained, as in the case of Combs v. Ditch Co. 28 P. 966, (decided at this term.) The right of appeal not having been questioned, this case is not to be considered a precedent upon that question. The petitioner, as owner of certain agricultural land, avers that he 'is desirous of procuring a perpetual right to use and take water to irrigate said land, and particularly the right to use and take water for the cultivating season of 1888 from said [defendant's] ditch.' The prayer of the petition is to the effect that the court grant a writ of mandamus compelling the ditch company, its officers and agents, to accept certain money tendered for a certain quantity of water for the season of 1888, and to furnish such water to petitioner perpetually, and particularly for the season of 1888, etc. It is scarcely necessary to say that the writ of mandamus is not an appropriate remedy to secure a perpetual right to the use of water for irrigation. According to the averments of the petition, the right of petitioner to water from the defendant's ditch for the irrigation of his land could, at most, be only an annually recurring right, dependent, among other things, upon an annual tender of the price. This was expressly held in the case of Wheeler v. Irrigation Co., 10 Colo. 596, 17 P. 487, and again in the case of Combs v. Ditch Co., supra. The petitioner based his claim upon the constitution and upon the act of 1877, § 87, c. 19, Gen. Laws; 1 Mills' Ann. St. § 570. The provision reads as follows: 'Any company constructing a ditch under the provisions of this act shall furnish water to the class of persons using the water in the way named in the certificate, in the way the water is designated to be used, whether miners, mill-men, farmers, or for domestic use, whenever they shall have water in their ditch unsold,' etc. Proceedings in cases of this kind are necessarily somewhat summary in their nature. To be effective, the relief must be immediate; and to this end the trial courts should be liberal in matters of pleading and practice, lest the crops of the farmer burn while counsel contend over legal technicalities. It was proper, therefore, that the averments and prayer concerning petitioner's...