King v. Ackroyd

Chiee Justice Campbell delivered the opinion of the court. 1. The decree is radically wrong. The evidence does not sustain it and the law condemns it. Some of the objections urged by appellant against the rulings of the trial court need not be considered. If it be conceded that the necessary ground was laid for the introduction of oral evidence of the contents of the alleged lost writing, and the secondary evidence admitted by the trial court established the same with the necessary certainty and clearness, and that, if the controversy was one between Ackroyd and Haythorn, the original parties, their rights would be limited, or measured by it, — still the plaintiff i.n this case is not bound by it. It is a familiar rule that secret trusts or equities in land antagonistic to the title, as disclosed by the record, do not bind a bona -fide purchaser. In the pleadings there is no allegation, and in the proof no evidence, that Sherman J. King, the husband of the plaintiff and the immediate grantee of Haythorn, or the plaintiff herself, had notice, .or knowledge of facts equivalent to notice, at the time they received their conveyances, that there existed a secret equity in this water, evidenced by the missing writing, or otherwise, and which is now asserted by defendant. 2. But it is claimed by defendant that ever since the execution of the quit-claim deed, he has not only asserted the right, but, when not interfered with by plaintiff and her grantors, has actually used for irrigating his lands the water of the Ackroyd draw. He further says that some time 'after the execution of the deed he constructed a number of ditches and laterals and other appliances upon his land adjoining the premises of plain [493] tiff for the purpose of utilizing the water which ho claimed, and because of these physical demonstrations, of which plaintiff at __ the time was aware, and some of which were made- before her acquisition of title, she is charged with notice of tile secret trust. Since the parties themselves- agree as to the effect of the granting words of the quit-claim deed, it is not necessary in this ease to determine whether the title to the water thus conveyed is greater than, or the same as, an appropriator of water from a natural stream gets under the laws of this state; for plaintiff admits what defendant asserts, that the rights which she acquired are only those of a prior appropriator. And while they differ as to the place where plaintiff is to make beneficial use of the water, and as to the circumstances in which her priority ceases,— which difference grows out of their controversy as to the existence and binding force of the lost writing,' — yet, at least, they do agree, if their respective rights are measured solely by the quitclaim deed, that when she has no use for the water in irrigating her lands it is her duty to allow it to flow down the natural channel to be utilized by the defendant as a junior appropriator. Such being the theory of both parties, it is apparent that whatever physical demonstrations were made by defendant in the way of building ditches and constructing other appliances upon his lands with a view to utilize water, were properly under- . stood by plaintiff as manifestations of an intention to utilize only what she admits belongs to him, viz., the rights of a junior appropriator, and not such as conflicts with the superior rights which the record shows were vested in her. We are clearly of opinion from the uncontradicted evidence in the case that the plaintiff had neither actual nor constructive notice of the alleged secret equity of defendant until long after she acquired title. So that whatever rights, if any, Ackroyd may have had against Haythorn, his immediate grantee, to the use of water collected [494] in the Ackroyd draw, he had none whatever as against the plaintiff at the time she took title,’ except such as a subsequent appropriator may assert. 3. If the defence of an abandonment by plaintiff was well pleaded by defendant, the evidence signally fails to establish the defense. There is not a particle of evidence that pláintiff or her grantors, ever intended to abandon these rights, nor áre .there any acts of non-user by her which amount to anything in the light of the evidence. 4. But it is said that plaintiff is not in a position to urge any objection against the secret equity pleaded by the defendant, for in the conveyance to her made by her husband the water rights and interests' in the ditches through which they were enjoyed were not conveyed; nor was there any specific description of these water rights in the deed from Haythorn to Sherman J. King. The evidence is clear to the point that Haythorn, in conveying these lands to Sherman J. King, intended to transfer with them as an appurtenance, the water rights in question,'and the same is true of the intentions of Sherman J'. King when he conveyed the same premises to his wife. A water right which is used in irrigating lands may-pass as a grant of the lands themselves, under-the word “appurtenances”, if such was the intention of the grantor, and of this intention there is not the shadow of a 'doubt in this ease; so that Mrs. King is in a position to interpose the same objections that Haythorn could, were he a party plaintiff. Insurance Co. v. Childs, 25 Colo. 360, and cases cited. 5. The claim that under the missing instrument plaintiff’s use of water was confined exclusively to the irrigation of the particular tract of land in the northwest quarter of section 32, for the irrigation of which the appropriation was originally made, and none other, falls under our decision that plaintiff, not being charged with knowledge of its contents, is not- bound by it. 6. The same ruling also disposes of the contention of de [495] fendant'that he was injured by plaintiff’s construction of the so-called seep ditch after she acquired title and the diverting of water from this draw there through to be used by other parties than the plaintiff for irrigating their lands. As a matter of fact, this ditch was constructed because plaintiff was unable longer profitably to irrigate her lands situate in the northwest quarter of section 32, and lying under the Daisy ditch, because they had become badly seeped. And the Daisy ditch' was abandoned as a carrier of this particular watér, and the seep ditch used instead, and the water carried thereby was exchanged by plaintiff with owners of other lands lying under the seep litch for water to which they were entitled from the Larimer and Weld Canal, and which they gave in exchange to the plaintiff for the irrigation of certain of her lands in section 32 which could not be irrigated either from the Daisy or seep ditch. This resulted in no injury to defendant, for in the exchange no more water was utilized from the Ackroyd draw than was theretofore beneficially applied, and defendant’s rights as a junior were not otherwise injuriously affected. Like disposition is made of the further, indeed part of the same, contention of defendant that, by reason of the non-necessity of water to irrigate the seeped land of plaintiff, • which condition arose after the sale by Ackroyd of these water rights, the quantity necessary for the proper irrigation of plaintiff’s land in section 32 was lessened, and that by reason thereof, and the subsequent use and appropriation of them by the defendant, now constitutes him a prior appropriator. Plaintiff had the right to change the place of the use from her “seeped” lands to other lands owned by her or other parties, provided in making the change the rights of junior appropriators were not injuriously affected; and, as already said, since thereafter no greater quantity was used than theretofore, and no other right of the defendant was injuriously affected, the latte may not complain. [496] With the missing instrument out of the case, which, as to plaintiff, is as if it was never executed, it is clear that whatever rights defendant has in water that collects in the Ackroycf draw above the head of the Daisy or seep ditch, they are junior and subordinate to the rights of plaintiff, and there is no showing that his rights as a junior appropriator have been infringed by the plaintiff in the slightest degree. This determination also disposes of the finding of the trial court that the construction of the seep ditch was a private nuisance which defendant was entitled to have abated. The decree of the lower court is reversed and the cause re. manded with instructions to that tribunal to set it aside and to render a decree as of the date of the former one constituting plaintiff the prior appropriator of the waters in the Ackroyd draw, in accordance with the prayer of her complaint, and restraining defendant from interfering with the prior use of such waters to the extent of the amount necessary to irrigate her lands. Reversed.