Wyatt v. Larimer & Weld Irrigation Co.

• Citation: 18 Colo. 298,33 P. 144
• Parties: WYATT et al. v. LARIMER & WELD IRRIGATION CO. et al.
• Decision Date: 21 March 1893
• Court: Supreme Court of Colorado

33 P. 144

18 Colo. 298

WYATT et al. v. LARIMER & WELD IRRIGATION CO. et al.

Supreme Court of Colorado

March 21, 1893

Appeal from court of appeals.

Action by David C. Wyatt and others against the Larimer & Weld Irrigation Company and others for an injunction. From the judgment of the court of appeals (29 P. 906) affirming an order sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

The appellants, suing for themselves, and also on behalf of all other users of water except the defendants, who obtain their supply from the canal of defendant, the Larimer & Weld Irrigation Company by virtue of the water-right contracts issued by said company, brought this action in the district court of Weld county to enjoin the company from selling additional water rights, or entering into further water-right contracts providing for the prorating of the water flowing in its canal. The complaint is in substance as follows: That the Larimer & Weld Irrigation Company was duly incorporated pursuant to the laws of this state, as a ditch company, and a carrier of water for irrigation, in the month of March, 1879. That it acquired an old ditch known as 'Canal No 10,' in Larimer county, and enlarged and extended the same during 1878 and 1880 and subsequent years, and that, as so enlarged, it is now known as the 'Larimer & Weld Irrigation Canal.' That it has for many years past, by means of such canal, diverted water from the Cache la Poudre river at its headgate in Larimer county, and distributed the water so accumulated among the consumers and appropriators who own land along the line of the canal, capable of irrigation therefrom, and who have entered into written contracts with the company concerning such water delivery. 'That all written contracts or agreements for water rights made by the defendant the Larimer & Weld Irrigation Company with water consumers and appropriators under the line of said canal have mentioned, as a unit of comparison and measurement, what is known as an '80-acre water right,' which is defined in all such contracts as one and forty-four one-hundredths cubic feet of water per second flowing over a weir at one of the lateral head gates along the line of said defendant's canal; said amount of water to be used during the irrigating seasons, or so long as needed during such seasons for the proper irrigation of eighty acres of land.' That in 1879, upon the acquisition of canal No. 10, the company entered into contracts with the persons who had acquired vested appropriations by virtue of user of water therefrom, expressly recognizing and confirming their rights to the continued use of water from defendant's canal, in the aggregate, of 29 3/4 80-acre water rights, and allowing the owners of such rights to divert the full quota of water appertaining thereto, and without prorating with other owners of water rights in the canal in times of scarcity. That such contracts for the preferred 29 3/4 water rights are still outstanding. That the defendant, in addition to such contracts, did, for valuable considerations, from 1880 to 1888, enter into written contracts with other users of water in possession of land lying under said canal, all of which are in full force and outstanding, and amounting in the aggregate to 292 3/4 80-acre water rights, whereby it agreed perpetually, during the irrigating seasons, to deliver water to said parties. That said water rights are owned and controlled as follows Fifty-six by the defendant B. H. Eaton; 24 by David C. Wyatt Demosthenes B. Wyatt, and Lewis L. Wyatt; 2 by Herbert J Thompson; and the remaining 210 3/4 are owned by other consumers, who have a common and general interest with plaintiffs in the distribution of water in defendant's canal, and in whose behalf the action is also brought. That they and plaintiffs, during each and every irrigating season since their rights were acquired, have engaged in cultivating and raising crops, and used and appropriated all the water appropriated to them in pursuance of such contract; have promptly paid all assessments levied by defendant company and have in all respects complied with the terms of their contract. 'That each of the several written contracts entered into by and between the defendant the Larimer & Weld Irrigation Company of the one part, and the respective water-right owners of the other part, has been written upon a certain regular printed blank form of contract, and each of said contracts contains the following printed conditions, to wit: '(6) The said company agrees that when it shall have sold and have outstanding and in force a number of water rights equal to the estimated capacity of the company's canal to furnish water, it will then issue and deliver to the holder of each water right who shall have complied with the terms and conditions of this contract, without further consideration, four shares of the stock of said company for every water right hereby sold, which the purchaser hereof agrees to accept. (7) It is hereby distinctly understood and agreed by and between the parties hereto that, in case the canal of said company shall be unable to carry and distribute a volume of water equal to its estimated capacity, either from casual or unforeseen or unavoidable accident, or if the volume of water prove insufficient from drouth, or from any other cause beyond the control of said company, the company shall not be liable in any way for the shortness or deficiency of supply occasioned by any of said causes. (8) It is further agreed that if by reason of any causes the supply of water shall be insufficient to fill and flow through said canal, according to its estimated capacity, or if from any other cause, as aforesaid, beyond the control of said company, the supply shall be insufficient to furnish an amount equal to all the water rights then outstanding, the said company shall have the right to distribute such water as may flow through said canal to the holders of such water rights pro rata; and, for the purpose of so doing, may establish and enforce such rules and regulations as it may deem necessary or expedient.'' That, in addition to the water-right contracts mentioned, the defendant company did allow B. H. Eaton, prior to 1889, to use 40 additional 80-acre water rights on his land, for which no written contract was entered into by them, and for which no consideration was paid, but were so used that vested appropriations would accrue in connection therewith, and that such water rights should ultimately be applied to the irrigation of certain lands belonging to defendant the Colorado Mortgage & Investment Company of London, Limited; and that prior to 1889 defendant allowed certain tenants of the Colorado Mortgage & Investment Company of London, Limited, to use for irrigation purposes four additional water rights upon its land. That all the water diverted from the Cache la Poudre river by means of defendant's canal at any time has been used for the irrigation of land lying under said canal, by the owners and users of the water rights before mentioned, and only by them. That prior to 1889 all the water flowing in the Cache la Poudre river during the irrigation season was actually diverted and appropriated to beneficial purposes by means of several ditches supplied therefrom, except during the spring floods. That by reason of prior appropriations from said river the defendant irrigation company has been unable to deliver to the respective water-right, owners under its canal water to the extent fo 1.44 cubic feet per second to each water right, though actually needed for irrigation by all of the respective owners and users, and has prorated all the water which it was allowed to divert among its water-right owners pursuant to the stipulation and conditions contained in its water-right contracts; and that such owners have acquiesced in such pro rata distribution to the extent of the said 366 1/2 water rights. That there is not sufficient water, not otherwise appropriated, to enable defendant irrigation company to dispose of any more water rights from and under its canal. That it has already disposed of water rights equal to, and in excess of, its ability to furnish water. That the irrigation company, for two years past, has refused to execute additional contracts, though often requested to do so by divers persons; and, except for the wrongful conspiracy hereinafter set forth, has persistently and consistently, through its authorized agents, admitted that it could not dispose of any more water rights without violating its duty to the present water-right owners. That the Colorado Mortgage & Investment Company of London, Limited, own 6,341 acres of arid land under the canal that has never been irrigated. That the managers of this company and the defendant Eaton constitute the board of directors of the irrigation company. That Eaton is largely indebted to said investment company and the irrigation company. That he (Eaton) has proposed to the defendant companies that, if they will sell to him a large number of 80-acre water rights, not less than 50 or more than 128, in addition to his outstanding written contracts for the 56 water rights now in his name, and also 40 water rights which he has been using, which new water-right contract shall contain the same terms and conditions as to prorating and the right to stock as are provided for in the contracts of plaintiffs and others similarly situated, that he will buy the 6,341 acres of land from the Colorado Mortgage & Investment Company of London, Limited, and that by means of said property he will be enabled to borrow large sums of money, and be thereby able to pay his indebtedness to said companies. That the said defendants...