CHAPTER VIII.

DAMAGES.

Complaint in action for § 135.

In condemnation proceedings-Conclusiveness of judgment § 136.
Instructions § 137.

Measure of § 138.

(a) Destruction of a ditch.

Mortgage-Action brought before maturity of debt § 139.
Overflowing ditch § 140.

Permanent improvements § 141.

To growing crops-Mortgagee § 142.

Sec. 135. Complaint in action.

See Northern C. I. Co. v. Richards, 22 Colo. 450461, 45 Pac. 423.

Sec. 136. In condemnation proceedings-Conclusiveness of judgment.

Syl. "A judgment is conclusive between the parties not only as to such matters as were in fact determined in the proceeding, but as to every other matter which the parties might have litigated as incident to or essentially connected with the subject-matter of litigation, whether the same, as a matter of fact, were or were not considered." Denver C. I. & W. Co. v. Middaugh, 12 Colo. 434, 21 Pac. 565.

See Eminent Domain, Sec. 175.

Sec. 137. Instructions in action for damages.

"In passing upon the question of damages, and in considering the evidence, you may consider whether or not the plaintiff might have obtained water through another ditch

readily and at slight expense; and if he could have obtained
sufficient water through some other source to have prevented
the injury, he is not entitled, it seems to me, to recover a
greater sum than it would, under the evidence, have reason-
ably required for him to have expended in procuring the
water from such other source, thereby preventing the injury
⚫complained of in this case." Mack v. Jackson, 9 Colo. 537,
13 Pac. 542.

See Northern C. I. Co. v. Richards, 22 Colo. 450-
461, 45 Pac. 423.

"The difference in the value of the land without the ditch and with the ditch was the measure of damage." Denver, etc., R. R. Co. v. Dotson, 20 Colo. 304, 38 Pac. 322; Cash v. Thornton, 3 Colo. App. 475, 34 Pac. 268.

Sec. 139. Mortgage-Action brought before maturity of debt.

Syl. "An action by a mortgagee for damages is not premature because brought before the maturity of the mortgage debt." Equitable S. Co. v. Montrose & D. C. Co., 20 Colo. App. 465, 79 Pac. 747.

Sec. 140. Overflowing ditch.

"It can, without doubt, be said that the defendants are responsible for any damage occasioned to the plaintiff's property by reason of their failure or neglect to keep the ditch in a state of preservation and repair, and to so maintain and manage the ditch as to prevent injury to plaintiff's property caused by overflow of the waters entering the ditch, resulting either directly or indirectly from the negligence of the defendants in keeping the same in good repair, or in the manner of its use, while under their control, they are responsible in damages. **** 37 Cal. 263." Greeley I, Co. v. House, 14 Colo. 549-553-554, 24 Pac. 329.

Sec. 141. Permanent improvements.

Damages will not be allowed. Farmers' H. L. C. & R. Co. v. New Hampshire R. E. Co., 40 Colo. 467, 92

Pac. 290.

Sec. 142. To growing crops-Mortgagee.

An action for damages to growing crops occasioned by a canal company, the defendant, refusing to furnish water until the applicant had paid arrearages of his grantor. Syl. "The mortgagee, in a chattel mortgage on growing crops, may maintain an action for damages for impairment or destruction of his security against the water company which refused to supply water to the mortgagor and thus destroyed the crops." Equitable S. Co. v. Montrose & D. C. Co., 20 Colo. App. 465, 79 Pac. 747.

Sec. 143. Trespass.

Syl. "For trespasses or nuisances that are not of a permanent character damages can only be recovered for the injury sustained up to the time of the commencement of the suit; but as to trespasses and nuisances that are of a permanent character, a single recovery may be had for the whole damage resulting from the act." Denver C. I. & W. Co. v. Middaugh, 12 Colo. 434-435, 21 Pac. 565.

CHAPTER IX.

DISTRIBUTION.

Bonus or condition precedent § 144.

Change of character of use or place of diversion § 145.
Commingled waters-Rights in § 146.

Decree controls § 147.

Extension of ditch-Relative rights of consumers § 148.
Loan of water § 149.

(a) Injurious effect.

(b) Party to defend rights.

(c) Statutes relating to loan of water.

(d) When loan of water cannot be made.

Method of carrying water § 150.

Pollution of stream § 151.

(a) By alkali.

(b) By a licensee.

(c) Supreme court's jurisdiction.

Pro-rating § 152.

(a) Among consumers from same ditch.

(b) Cannot be construed so as to interfere with existing rights. (c) Parties to suit for pro-rating.

(d) Proof in action for pro-rating.

State officers duties § 153.
Waste-Prohibited § 154.

See Subterranean Waters, Sec. 283.

Sec. 144. Bonus or condition precedent.

A bonus or royalty can not be charged by a ditch company as a condition precedent to furnishing water. Northern Colo. I. Co. v. Richards, 22 Colo. 450, 45 Pac. 423; Wheeler v. Northern Colo. I. Co., 10 Colo. 582, 17 Pac. 487.

See Canal Companies, Sec. 92.

Sec. 145. Change of character of use or place of diversion.

See Change of Point of Diversion, Sec. 103.

See Secs. 255, 67, 68.

"It is further manifest that after the plaintiff made its appropriation, while the milling company may change the character of its use, or the place of diversion, it may not do so to the injury of the former. Strickler v. City of Colo. Springs, 16 Colo. 61, 36 Pac. 313." Cache la Poudre I. Co. v. Water S. & S. Co., 25 Colo. 161-169, 53 Pac. 331.

Sec. 146. Commingled waters—Rights in.

"The fact that the waters of the reservoir and canal companies might have been commingled, as alleged, gave the defendants no right to divert water which did not belong to them. It was the duty of the irrigation company, as stated by the trial judge in finally disposing of the case, to put in measuring weirs, so that the water flowing in the canal, when commingled, could be properly distributed; but the failure of the irrigation company to discharge its duty in this respect did not invest the defendants with the right to take water which did not belong to them." Hackett v. Larimer & Weld Co., 48 Colo. 178-186, 109 Pac. 965.

"The commingling of the two classes of water did not give the defendants any right to divert water in which they had no interest." Id. 188.

Sec. 147. Decree controls.

"The distribution of water * * must be made in accordance with the decrees of the court in the statutory proceeding, and not otherwise." Combs, et al. v. Farmers' H. L. C. & R. Co., 38 Colo. 420-432, 88 Pac. 396.

The waters of a stream must be distributed in accordance with the decreed priorities, regardless of the fact that the stream may run in two or more districts and that an adjudication has been had in each and regardless of the fact that an injunction has been obtained against a water commissioner by a party in one district to compel him to distribute the waters