Blake v. Boye

Mr. Justice Maxwell delivered the opinion of the court: The complaint averred that plaintiffs as co-tenants were the owners and in possession of a certain seepage, waste, flood-water and irrigation .ditch known as the Eaton & McClellan ditch; that pursuant to § 1720 of the general statutes of this state (Mills’ Ann. Stats., § 2265), a verified statement was filed in the office of the clerk of Weld county setting forth data required by the statute; that the work of construction was commenced October 13, 1886, was carried on with diligence and was completed throughout its whole length within two years; that plaintiffs and their predecessors continued in the use of said ditch and the waters collected thereby during each and every year since 1888; that defendants were the owners and in possession of a quarter section of land, over and across which the line of said ditch extended; that prior to the ^commencement of this suit defendants entered upon and into said ditch, placed dams and obstructions therein and diverted the water flowing in said ditch to and upon the defendant’s land and have prevented, and are now preventing, the regular flow of water in said ditch, to the great injury and damage of plaintiffs. A decree was prayed quieting the title of plaintiffs in the ditch, for an injunction to restrain defendants from interfering with the ditch and the waters flowing therein, and requiring them to remove therefrom the obstructions placed therein by them. The answer denied the material averments of the complaint and affirmatively averred that, by reason- of the failure of plaintiffs and their predecessors to construct said ditch and appropriate and use the water therein, if any there was subject to appropriation, all rights, if any they had, had been totally [57] lost, terminated and abandoned. Defendants further averred that they had been the owners of said land since 1891, and that, during all of that time, no- ditch or ditches other than those by them constructed, had been constructed upon said land; that during the year 1898 the upper portion of said land began to be wet and seepy by reason of percolating waters, and that thereupon defendants constructed two ditches for the purpose of draining said land and to collect said percolating and seepage waters, and to carry and use the same for irrigation upon other portions of their land; that the ditches ■ so constructed by defendants were the only ditches ever constructed upon said land, and that by virtue of the provisions of §2269, Mills’ Ann. Stats., the defendant, Jane P. Blake, being the owner of said land, has a prior right to such seepage and percolating waters. A reply put in issue the affirmative allegations of the answer. A trial to the court without a jury resulted in a judgment and decree in favor of plaintiffs. It appears from the testimony that the head of the ditch, as described in the verified statement filed, was at a point near 'The Larimer & Weld Irrigation Company’s canal; that the line of the ditch, as described, ran in a southeasterly direction from its head about 7-| miles to a point at or near canal No. 2; that during the year'1886 the lower 5 miles of the ditch was constructed along the line designated in the verified statement; that the defendant’s land lies above the section of the ditch constructed in 1886; that in 1887, in constructing the ditch along the described line over the 2J miles of the upper section, across the land now owned by defendant, Jane P. Blake, the work consisted of two days’ labor of 4 men with 8 horses and a road or ditching plow; that two furrows only were run over the surface of the [58] land along the line described in the statement; that the ditch was constructed along a natural depression or water way. It is admitted that no written grant or conveyance of right of way was made, and that no condemnation proceedings were ever had for acquisition of such right of way. The present owner of the land acquired title thereto in 1898 from her husband, who bought the land of the original owner in 1892. From 1886 to 1892 the land was owned by and in the possession of a homesteader. This person and other witnesses testified, that the land covered by and included within the furrows plowed in the construction of the ditch was cultivated from year to year and every year and crops raised thereon; that during all of the years from 1886 to 1892 no attempt whatever was made by anyone to maintain the ditch, even as it had been constructed. Similar testimony was adduced for the period of time from 1892 up to the commencement of this suit. Some ten or twelve witnesses testified that the land covered by the line of the ditch was cultivated, and that during the whole of this period there was no ditch across the premises along the line indicated by the statement filed. The purchaser of the land in 1892 testified that at the time of his purchase there was no ditch across the land, and nothing to indicate that there ever had been a ditch. The evidence clearly shows, and it is practically uncontradicted, that at the time defendant acquired title to the land all evidences of the existence of a ditch across the land had been wholly obliterated. No witness on behalf of appellees testified to any work ever having been done upon the quarter section in controversy, along the line of this ditch, from the [59] year 1888 to the commencement of this suit, by anyone in the interest of the owners of what is known as the Eaton & McClellan ditch, and, excepting the year 1888, when there was an unusual flood, there is no evidence in the record to prove that seepage, surface or waste water was drawn from this land by the Eaton & McClellan ditch, from the year 1888 to the commencement of this suit. It clearly appears from the record that defendants took title to the land without notice of the existence of a right of way for this ditch, or that such right of way had been granted. The verified statement filed, hereinbefore referred to, which was introduced in evidence over the objection of defendants, it is admitted was not evidence of title to the right of way, and it cannot be held to be constructive notice to the defendant of the existence of such ditch, for the reason that the statute under which the same was filed had been declared unconstitutional. — Lamar Co. v. Amity Co., 26 Colo. 370; Great Plains Co. v. Lamar Co., 31 Colo. 96. There being no evidence of the existence of a ditch across the land at the time the defendants acquired their title thereto, the defendants being wdthout notice of the existence of a right of way across the land, this being an action to quiet title, we are of the opinion that plaintiffs failed to prove such a case, against the defendants, as would entitle them to the relief sought, for which reason the judgment must be reversed. Reversed. Chief Justice Gabbert and Mr. Justice Guhter concur.