True v. Rocky Ford Canal Reservoir & Land Co.

• Decision Date: 02 April 1906
• Citation: 36 Colo. 43,85 P. 842
• Parties: TRUE v. ROCKY FORD CANAL, RESERVOIR & LAND CO.
• Court: Colorado Supreme Court

85 P. 842

36 Colo. 43

TRUE v. ROCKY FORD CANAL, RESERVOIR & LAND CO.

Supreme Court of Colorado

April 2, 1906

Error to District Court, Pueblo County; N. Walter Dixon, Judge.

Action by A. E. True against the Rocky Ford Canal, Reservoir & Land Company. There was judgment for defendant, and plaintiff brings error. Affirmed.

Alfred W. Arrington, for plaintiff in error.

Devin &amp Dubbs, for defendant in error.

GUNTER J.

A general demurrer to the amended complaint was sustained, and as the plaintiff stood upon his complaint the action was dismissed. The question here is whether the following facts which constitute the material allegations of the complaint present a cause of action: In December, 1889, the defendant was incorporated for the purpose of constructing, owning, and operating an irrigating canal. In May, 1890, in order to secure a right of way for this canal over lands of the plaintiff, a written contract was entered into whereby plaintiff gave the right of way, and defendant agreed to construct a canal of sufficient size and capacity to deliver water to its stockholders, and 'that the said Alvin E. True, plaintiff, shall have for the irrigation of the above described lands, exclusively, the right to the use of water from the said ditch in amount equivalent to twenty shares of the capital stock of said company. That the same shall be free and exempt from any and all charges and assessments of any kind or nature, and it is expressly agreed and understood by the parties hereto that in consideration of the grant of right of way as herein provided through and over the lands herein described, that the said right to the use of water be exclusively for said lands and in amount equivalent to twenty shares of the capital stock, and in no way to be transferred to use upon any other lands.' At the time of the making of this agreement each share of stock carried the right to the use of .18 cubic feet of water, and 20 shares the right to the use of 3.6 cubic feet, subject to the duty to prorate among shareholders in the event of a shortage in the water carried by the canal. The canal was constructed and water was distributed among its shareholders, and to this plaintiff, for a number of years. In July, 1899, the defendant purchased 46 cubic feet of water from the Ballow Hill Ditch Company; 16 cubic feet of this purchase being a priority of July, 1869, and 30 feet thereof a priority of June, 1885. This was turned into the canal of defendant and distributed among its shareholders and others. For a time plaintiff was permitted to share in this water, but, since the spring of 1901, defendant has refused to distribute any part of this water (the Ballow Hill water) to plaintiff, and since the same date plaintiff has not received 3.6 cubic feet of water. Plaintiff was not consulted as to the purchase of the Ballow Hill water, nor has he in any manner participated in or contributed to its purchase. This action is to compel the defendant to deliver to plaintiff at all times 3.6 cubic feet of water regardless of the amount of the water in the canal, and the needs of other stockholders; plaintiff claiming an absolute preferential right to the use of that amount of water at all times, and, in the event this claim is denied, plaintiff asks that the contract be construed, and it be held that he is entitled to prorate with the shareholders of defendant in the Ballow Hill water. Whatever the rights of the parties here may be, they are determined by the above contract. If the plaintiff has an absolute preferential right to 3.6 cubic feet of water, it is given by this contract; if he has the right to participate in the Ballow Hill water, it is given him by this contract.

Plaintiff's contention is that he is entitled to receive from the canal for irrigating purposes, when needed, 3.6 cubic feet of water when the same is in the canal; that this is an absolute preferential right over all shareholders of defendant. And he further contends that, if the contract be not so construed, and that if it be held that he is required to prorate with the shareholders of defendant, then that a decree be entered entitling him to prorate in the Ballow Hill water. The object to be attained in the construction of a contract is to ascertain and give effect to the intention of the parties. St. L. & D. L. & M. Co. v. Tierney, 5 Colo. 582, 584; Wolff v. Helbig, 21 Colo. 490, 43 P. 133. In making this inquiry, we have a...