Northern Colorado Irrigation Co. v. Burlington Ditch, Reservoir & Land Co.

Supreme Court of Colorado

Northern Colorado Irrigation Co. v. Burlington Ditch, Reservoir & Land Co.

219 P. 1071, 74 Colo. 159

CourtSupreme Court of Colorado

DecidedNovember 5, 1923

DocketNo. 9,641

StatusPublished

Cited by5 cases

This text of 219 P. 1071 (Northern Colorado Irrigation Co. v. Burlington Ditch, Reservoir & Land Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Northern Colorado Irrigation Co. v. Burlington Ditch, Reservoir & Land Co., 219 P. 1071, 74 Colo. 159 (Colo. 1923).

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Opinion

Mr. Justice Burke

delivered the opinion of the court.

In an irrigation adjudication proceeding in the district court of Douglas county in water district No. 8 a decree entered in the latter part of 1884 awarded to the High Line Canal, priority No. Ill for 1184 cubic feet per second as of January 18, 1879. The High Line Canal was owned by plaintiff in error and this action was brought by defendant in error to have all said priority in excess of 500 cubic feet adjudged abandoned. The trial court found that all of said priority in excess of 600 cubic feet had been abandoned [160]*160prior to the bringing of the action and entered judgment accordingly. To review that judgment this writ is prosecuted.

We have given to this case an incalculable amount of time and the most careful consideration, but it can and should be disposed of in a very brief statement. The controlling legal principles have been repeatedly laid down by this court and there is no material disagreement between counsel concerning them. The overruling of a demurrer and the admission of certain evidence are assigned as error but the points are (very properly, we think) not argued. The real questions in dispute are questions of fact and to them the other assignments and the entire arguments are directed. Their determination was for the trial court.

The cause below occupied more than three weeks and there are 1042 printed pages of the abstract of record. We think it clearly shows that more than 600 cubic feet of water was available, that it was not used, that the ditch would not carry it, and that plaintiff in error did not act upon the theory that it could be delivered, all for a period of approximately thirty years. Whether these facts were conclusive on the question of abandonment need not be determined. To say the least they raised a very strong presumption thereof, which the trial court was fully justified in finding was not rebutted by the claims and demands which plaintiff in error says it made from time to time.

The judgment is accordingly affirmed.

Mr. Justice Campbell dissents.

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Mr. Justice Burke

delivered the opinion of the court.

In an irrigation adjudication proceeding in the district court of Douglas county in water district No. 8 a decree entered in the latter part of 1884 awarded to the High Line Canal, priority No. Ill for 1184 cubic feet per second as of January 18, 1879. The High Line Canal was owned by plaintiff in error and this action was brought by defendant in error to have all said priority in excess of 500 cubic feet adjudged abandoned. The trial court found that all of said priority in excess of 600 cubic feet had been abandoned [160]*160prior to the bringing of the action and entered judgment accordingly. To review that judgment this writ is prosecuted.

We have given to this case an incalculable amount of time and the most careful consideration, but it can and should be disposed of in a very brief statement. The controlling legal principles have been repeatedly laid down by this court and there is no material disagreement between counsel concerning them. The overruling of a demurrer and the admission of certain evidence are assigned as error but the points are (very properly, we think) not argued. The real questions in dispute are questions of fact and to them the other assignments and the entire arguments are directed. Their determination was for the trial court.

The cause below occupied more than three weeks and there are 1042 printed pages of the abstract of record. We think it clearly shows that more than 600 cubic feet of water was available, that it was not used, that the ditch would not carry it, and that plaintiff in error did not act upon the theory that it could be delivered, all for a period of approximately thirty years. Whether these facts were conclusive on the question of abandonment need not be determined. To say the least they raised a very strong presumption thereof, which the trial court was fully justified in finding was not rebutted by the claims and demands which plaintiff in error says it made from time to time.

The judgment is accordingly affirmed.

Mr. Justice Campbell dissents.

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219 P. 1071, 74 Colo. 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northern-colorado-irrigation-co-v-burlington-ditch-reservoir-land-co-colo-1923.

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