White v. Farmers' HighLine Canal & Reservoir Co.

• Decision Date: 15 January 1896
• Citation: 22 Colo. 191,43 P. 1028
• Parties: WHITE v. FARMERS' HIGHLINE CANAL & RESERVOIR CO.
• Court: Colorado Supreme Court

43 P. 1028

22 Colo. 191

WHITE v. FARMERS' HIGHLINE CANAL & RESERVOIR CO.

Supreme Court of Colorado

January 15, 1896

Error to court of appeals.

Action for an injunction brought by the Farmers' Highline Canal & Reservoir Company against Torrence White. From a judgment of the court of appeals reversing a judgment for defendant in the district court, he brings error. Affirmed.

This action was originally commenced by the Farmers' Highline Canal & Reservoir Company, as plaintiff, against Torrence White. It appears from the undenied allegations of the complaint that the plaintiff is a corporation organized and existing under the laws of the state of Colorado for the purpose of owning, operating, and maintaining an irrigating ditch, together with reservoirs, etc.; that said company was organized on the 3d day of December, 1885, and from and after its organization it has diverted a large amount of water from one of the public streams of the state known as 'Clear Creek.' This water has been principally used by farmers for agricultural purposes, it being the custom of the ditch company to carry water for hire for the defendant and a large number of agriculturists along the line of the ditch. It is alleged that the defendant is entitled to 45 inches of water and no more. Notwithstanding such fact, it is averred that the defendant demanded 120 inches of water. The company averring its inability to comply with this demand, refused to supply the defendant with the same, or any part thereof in excess of 45 inches. Thereupon the defendant enlarged the opening in the box through which the water in his ditch flowed to his land, and wrongfully took from the canal 75 inches of water for his individual use in excess of the 45 inches which he was entitled to. It is further alleged that the taking of this additional amount of water was at the expense and damage of many consumers of water from plaintiff's ditch. It is also averred that the plaintiff company had in its employ as efficient and capable superintendent, whose duty it was to fix and adjust the various boxes through which water is supplied to the various lands receiving water from the said ditch; that this superintendent, in the discharge of his duties, apportioned the water strictly and properly according to the amounts to which each consumer was entitled. It is further alleged that notwithstanding this fact, the defendant, after enlarging the capacity of the box or headgate used to supply his lateral ditch with water, continued to divert 120 inches of water. It is further averred that numerous other persons, tempted and led thereto by the evil example of the defendant, desiring to procure water for the irrigation of their lands in excess of the amount possible for the plaintiff to furnish, thereatened to follow the example of the defendant and at their will and pleasure take from said ditch various amounts of water without consultation with the said superintendent, and against his opposition position and remonstrance. Plaintiff seeks for injunctive relief restraining the defendant from taking from plaintiff's ditch water in excess of 45 cubic inches. Upon the filing of this complaint a temporary writ of injunction was issued in accordance with the prayerthereof. Afterwards the defendant filed his answer. It is unnecessary to set forth this answer in detail. It suffices to say that by it the defendant claims the right to take the additional 75 inches of water from plaintiff's ditch by virtue of a contract made with plaintiff's grantors on the 22d day of March, 1873, and duly recorded. This contract is fully set out in the opinion of the court of appeals. See Reservoir Co. v. White, 31 P. 345, 5 Colo.App. 1. The answer also avers that the full amount of 120 inches of water was necessary to properly irrigate the defendant's lands described in the schedule annexed to this contract, and that previous to taking the same he had tendered to the plaintiff $120 in cash for this water, this being in full payment for 120 inches of water at the rate fixed in the contract. Upon the filing of this answer the defendant filed a motion to dissolve the injunction, and about the same time also plaintiff filed a general demurrer to the answer. Whether or not the demurrer was filed before or after the dissolution of the injunction, as hereinafter set forth, does not definitely appear from the record. The record shows that after the coming in of the answer the case was heard upon the pleadings and evidence introduced by both parties. This hearing was had before the district judge at chambers, in vacation. Some months thereafter, the cause coming on to be heard before the district court in term time, the demurrer to the answer was overruled, and, the plaintiff electing to stand by the demurrer, the answer was taken as confessed, and judgment entered for the defendant. From this judgment an appeal was taken to the court of appeals. A hearing in that court resulted in a reversal of the judgment of the district court, whereupon White sued out a writ of error, upon which the record was brought into this court.

A. H. De France and A. J. Rising, for plaintiff in error.

Osborn & Taylor, for defendant in error.

HAYT C.J. (after stating the facts).

The order dissolving the temporary injunction, being merely interlocutory, is not before this court for review, except as the result was repeated in the final judgment. So, likewise the evidence taken upon the hearing at chambers in vacation is not open to review upon appeal or writ of error. When the case was regularly reached in the district court for final hearing and determination, that court was at liberty to, and did, as the record discloses, proceed to final judgment unembarrassed by its previous order. At this hearing a general demurrer was overruled to the answer, the court thereby deciding that the pleading constituted a good and valid defense to plaintiff's complaint. In this state of the record the cause must be reviewed solely upon the pleadings. The defendant, having tendered the schedule price of $1 per acre for water for 120 acres of the lands embraced within the contract and described in the schedule annexed thereto, insists, as the water is necessary for the cultivation of his lands, that he is not only entitled to have that amount of water flow into his lateral ditch, but that he has the right to take the same, without let or hindrance from the ditch company, its superintendent, or any other water consumer. This right to actually divert water from the main canal in opposition to the will and against the protest of the plaintiff company and its superintendent is based upon the following provision of the written contract, set up in the defendant's answer: 'That if the said ditch company, or the party of the second part, their assigns or successors, or whomsoever may be in control or management of the said ditch, as the case may be, shall at any time willfully or malignantly fail or refuse to comply with the terms of the indenture as to the furnishing of said water to said parties of the third part, or any or either of them, the party having right to demand and receive any part of said water for the uses aforesaid, upon payment or tender of payment at the proper time, and demand made in writing for such water, said tender or payment to be made to and said demand of the officer or agent, if any, appointed by the parties owning or managing said ditch, or, if there be no officer or agent appointed for the purpose of receiving such demand and payment, then such payment to be tendered to and demand made upon the president, secretary, treasurer, or superintendent of said ditch company, or person exercising control and management of the said ditch, it shall be lawful for the party so entitled to such water to draw from and take all such water as he may be entitled to at the time of such tender or payment, subject to payment therefor on demand made by the officer or persons authorized to receive the same.' That part of this contract which attempts to give each consumer the right to determine the amount of water to which he is entitled, with permission to take the same regardless of the rights of other consumers or of the ditch company, was declared void by the court of appeals. The court bases its conclusion upon the following reasons: First. 'It is a right incompatible with the right of control incident to the ownership of the property.' Second. 'It is against public policy, as tending to confusion and a breach of the peace 'in allowing parties to take whatever water they req...