Wright v. Platte Val. Irr. Co.

• Decision Date: 21 May 1900
• Citation: 61 P. 603,27 Colo. 322
• Parties: WRIGHT v. PLATTE VAL. IRR. CO.
• Court: Colorado Supreme Court

61 P. 603

27 Colo. 322

WRIGHT v. PLATTE VAL. IRR. CO.

Supreme Court of Colorado

May 21, 1900

Appeal from district court, Weld county.

Bill for injunction by the Platte Valley Irrigation Company against Isaac Wright. From a decree in favor of complainant defendant appeals. Affirmed.

The appellee is a duly-organized ditch corporation, and has the management and control of a certain irrigating ditch, known as the 'Platte Valley Ditch,' taken from the Platte river, in Weld county. It has sold to sundry owners of land lying under its ditch, including appellant, a large number of rights for the carriage of water, to be used upon their lands for agricultural purposes. By the contracts entered into between it and its consumers, the water is to be applied upon the lands therein specified. On the 11th day of April, 1888 it sold to appellant one-half of one 80-acre water right under a contract in the usual form, and which provides, inter alia, as follows: 'That in consideration of the stipulations herein contained, and the payments to be made as hereinafter specified, the first party hereby agrees to sell unto the second party one-half water right to the use of water flowing through the canal of said company, each right representing 1.44 cubic feet of water per second, to be measured over a weir or in other such manner as the first party may from time to time deem best, subject to the following terms and conditions, to which the said Isaac Wright and his assigns expressly agree: (1) That said company agrees to furnish the said water to the said Isaac Wright or his assigns, during the irrigating season, except as hereinafter provided, and at no other time. (2) Said water shall be used only to irrigate the following described tract of land, and no other land, to wit: The east half of the northeast quarter of the northwest quarter, and the north half of the southeast quarter of the northwest quarter, of section four (4), township three (3) north, range sixty-six west, in Weld county, but may be used for domestic purposes during the irrigating season; but under no circumstances shall said water, or any portion thereof, be used for mining milling, or mechanical power, or for any other purpose not directly connected with or incidental to the purposes first herein mentioned. (3) The said Isaac Wright or his assigns shall not permit said water, or any portion thereof furnished as aforesaid, to run to waste, but, as soon as a sufficient quantity shall have been used for the purposes herein allowed and contracted for, the said Isaac Wright or his assigns shall shut off said water, and keep the same shut and turned off until the same shall be again needed for the purposes aforesaid; but in no case shall the amount of said water taken or received by said Isaac Wright or his assigns exceed the quantity hereby sold.' On November 24, 1896 the appellee instituted this action in the district court of Weld county to enjoin the appellant from using and applying the water so purchased upon other and additional lands, and, as ground for such relief, alleges that, while still using and applying the same upon the forty acres described in said contract, he has 'lately been using and attempted to use the said water on other and different lands than the lands described in said contract, to wit, upon the S.W. 1/4 of the N.W. 1/4, and about half of the N.W. 1/4 of the N.W. 1/4; also, the balance of the S.E. 1/4 of the N.W. 1/4,--all of section 4, township 3 north, range 66 west, thus irrigating and attempting to use the water right for 40 acres to cultivate and irrigate about 120 acres of land; that thereby defendant has been using and attempting to use a larger amount of water than is necessary for the said 40 acres of land, and for a much longer time than was required for the irrigation of the said 40 acres of land; that by reason of the premises defendant is placing, and attempting to place, and additional burden upon the said water right, and to greatly enlarge the said water right, to the great injury and damage of this plaintiff and the several water right owners in said ditch and the consumers of water therefrom; that during the irrigating season of 1896 the said defendant has asserted and enjoyed the said enlarged use of said water right, and has irrigated the most of said 120 acres of land, and in so doing has called for and used more water than was necessary for the irrigation of said 40 acres of land, and employed the said water right, and the use of water thereunder, for a period of time greatly exceeding the time required to use the said water right upon the said 40 acres of land.' To this complaint appellant interposed five defenses: First, as an answer to the allegations of the complaint above quoted, he states: 'This defendant admits that he used some of said water during the irrigating season of 1896 on another and different small tract than that described in said contract, and did thereby attempt to irrigate a small tract more than the said tract of land described in the contract, but denies that thereby he (the defendant) used, or attempted to use, a larger amount of water than was necessary for the said tract of land described in the contract, or for a longer time than was required for the irrigation of said last-named tract of land, described in said contract; denies that by reason of said premises he (the defendant) is placing, or attempting to place, an additional burden upon his said water right, or to enlarge the water right, to the injury of the plaintiff or any water right owners under said ditch or consumers of water, or in any other manner whatsoever,...