Tubbs v. Roberts

• Decision Date: 01 July 1907
• Citation: 40 Colo. 498,92 P. 220
• Parties: TUBBS v. ROBERTS.
• Court: Colorado Supreme Court

92 P. 220

40 Colo. 498

TUBBS v. ROBERTS.

Supreme Court of Colorado

July 1, 1907

Rehearing Denied Nov. 4, 1907.

Appeal from District Court, Summit County; Frank W. Owers, Judge.

Action by Avery Tubbs against D. T. Roberts. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

On June 21, 1902, appellant, plaintiff below, instituted this action in the district court of Summit county against the appellee defendant below, praying for an injunction and other relief on the ground that appellee was unlawfully diverting water from a certain ditch which the plaintiff had constructed, and which he had been using for many years as an irrigating ditch. It is averred in the complaint that in 1888 the plaintiff began the construction of a certain ditch particularly describing the same, which he completed on the 21st day of November, 1890; that he is the owner of certain tracts or lots of ground through which the stream, tapped by this ditch, runs, and that the water conducted through this ditch was used to irrigate this land, amounting to something more than 130 acres; that on the completion of the ditch he posted at the headgate a notice in which he asserted the right to take 400 inches of water from South Acorn creek that he filed with the county recorder a certificate of location of the ditch, as required by the then existing law and that, from completion of the ditch on November 21, 1890, until June 4, 1902, he had continuously used the water so appropriated through said ditch for irrigating the lands described; that on the 4th day of June, 1902, appellee Roberts, designing to injure the plaintiff and without any right so to do, entered upon plaintiff's land at a point about 100 yards above the head of plaintiff's ditch, where the same takes water from South Acorn creek, and constructed a ditch from said point above plaintiff's ditch, whereby he diverted the waters of said creek from such point above to a point below plaintiff's ditch for the purpose of using for his own profit and benefit the waters belonging to the plaintiff; that, by reason of the acts of the defendant, the plaintiff was deprived of the water he had been accustomed to use, and that his crops had been greatly damaged thereby. To this complaint the defendant interposed an answer and cross-complaint. The answer denies every allegation contained in the complaint, except the construction of the ditch by Roberts, as set forth in the complaint. In his second defense and cross-complaint the defendant alleges that he is the owner is fee simple and in possession of certain described lots and parcels of land, and has been in the lawful and exclusive possession of said premises continuously since the early part of the year 1888. He further alleges that in the year 1883 one J. Q. Davis was in the lawful occupancy, use, and enjoyment of said premises, and that in that year he commenced the construction of a ditch from the natural stream called Acorn creek, flowing through or near said premises, of which South Acorn creek, mentioned in the complaint, is the principal constituent, with which to apply the water of said Acorn creek to the irrigation of said premises, and commenced to use the water for domestic purposes, and continued to use water for such purposes during the years 1883 to 1888, inclusive, when, in 1888, the said Davis bargained and sold, conveyed, and delivered over to the defendant his possession and right of possession of said premises, his buildings, fences, and other improvements, and also the ditch improvement and the irrigation use right and the domestic use right aforesaid for the use by him upon said premises by means of said ditch and otherwise of the natural stream, and that the defendant took over from said vendor Davis the said premises and water uses, and succeeded him in possession and enjoyment of the same, and that he now has the fee-simple title to said premises. It is further alleged that in 1885 Davis made out a certificate for a water claim which was duly filed with the county recorder, in which the course of the ditch was set out by metes and bounds, and that the capacity of the ditch was stated to be 4 1/2 cubic feet per second, and that said ditch reached the premises above described; that his lands are agricultural and pasture lands, and that since he has lived on his land he has, from year to year, used this water to irrigate from 25 to 50 acres of this land, and that Davis before him had farmed and irrigated from 20 to 30 acres; that the Davis ditch was the oldest ditch, and that he succeeded to all of Davis's rights; that he has been greatly damaged by the use of the water by plaintiff, and claims damages and prays a perpetual injunction against plaintiff. To this answer and cross-complaint plaintiff filed his replication, denying that Roberts ever purchased or acquired any water rights from Davis, or any ditch right; denies that Davis lived on that lands now claimed by Roberts in 1888 and 1889; denies that Davis ever used the water for domestic purposes, or that he ever used 50 inches of water for domestic purposes, or any other amount, or 200 inches for irrigating purposes, or any other amount exceeding 25 inches; and that this amount was not used on land now occupied by the defendant. The issues were tried to the court. The court found that defendant was the successor of Davis, and that his rights were anterior to those of plaintiff, that the defendant is entitled to 50 inches of water for domestic purposes and 200 inches of water for irrigating purposes, and awarded damages in the sum of $1,000.

Davis from whom Roberts claims to have purchased his water rights, and who constructed the ditch above mentioned, testifies: That he settled on the west side of the Blue river in 1882, claimed 160 acres, most of which was on the west side and across the river from the natural stream from which the irrigating ditches in controversy take their water. That the smaller part of the land was on the east side of the Blue river, and it was for this land that the ditch was taken...