Burford v. Lucas

Mr. Chief Justice Teller delivered the opinion of the court. The plaintiff in error was one of the defendants in a suit in which defendant in error Lucas as receiver was the plaintiff. The judgment here attacked is the same as that which was under consideration in the recently determined case of Hough v. Lucas (76 Colo. 94). This case is before us on the record and abstract in the Hough Case. Plaintiff in error, hereinafter mentioned as defendant Burford, was the owner of two hundred forty acres of land with water right therefor. In 1909 she entered into a contract to sell the land and water to The Suburban Land Company, which proposed to sell the land in small tracts. Later, this contract was cancelled by mutual consent, and the property was conveyed by defendant Burford to one *104 Hindman, who executed and delivered to Burford a mortgage to secure a balance of the purchase price. The judgment deprived the defendant Burford of all water rights appurtenant to said land, and directed that the holders of the land contracts should, on making payment, receive title free and clear from the lien of the Hindman-Burford mortgage. There are numerous assignments of error, the principal ones of which are that the court erred in finding that the water rights had been lost, and that the holders of land contracts should receive conveyances free from the lien of the Burford mortgage. As to the loss of the water right, the decree is open to the same objection as was sustained in Hough v. Lucas. Counsel for defendant in error say that there is no material difference between this case and the Hough Case, supra. We think this statement is substantially correct. For the reasons stated in the opinion in the Hough Case, the judgment as to Barbara L. Burford is reversed, with directions to dismiss the action as to her.