Kern Reservoir & Ditch Company v. Weldon Valley Ditch Company et al.

[No. 7570.] Kern Reservoir & Ditch Company v. Weldon Valley Ditch Company et al. Water Rights — Unlawful Diversion and Storage. The diversion and storage by an irrigating company of water to the use of which another is entitled, or the retention of it, after it is wrongfully impounded by another, will be relieved against in equity. (303) Error to Morgan District Court. — Hon. H. P. Burke, Judge. Mr. H. N. Haynes, for plaintiff in error. Messrs. Stephenson & Stephenson and Messrs. Allen & Webster, for defendant in error. [MAJORITY — Mr. Justice Gabbert] Mr. Justice Gabbert delivered the opinion of the court: While numerous questions are urged by plaintiff in error in support of its contention that the decree rendered by the trial court is wrong and should be reversed, the real question involved, is whether it wrongfully and illegally stored water in its reservoir to the injury of the defendants in error. The District- Court so ■ found in an action- brought by defendants in error as plaintiffs, against plaintiff in error as defendant, the object of which was to compel defendant to return water alleged to have been wrongfully impounded by it, to the Cache la Poudre river to supply the priorities of plaintiff’s and from a decree granting this relief and restraining it from such wrongful acts in the future, the defendant has brought the case here for review on error. The testimony establishes that plaintiff in error either diverted and stored water in its reservoir, without right, or retained it therein after it had been wrongfully impounded by another, at a time when it should have been permitted to flow down the stream from which it was diverted to supply the priorities of plaintiffs, and was required for that purpose. Based on these facts the decree of the court is unquestionably right, and is therefore affirmed. Judgment affirmed. Chief Justice Musser and Mr. Justice Hill concur.