The herald., 1896-01-19

city made contract or lease with the
Citizens Water company whereby it
granted or leased 10 that company the
right to take twenty inches of water .
from the ditch then in use, to be di- m.
verted to point on the ditch some dis z.
tance below the ditch here in contro-
versy; in consideration of which the n
company agreed to carry to the city in 4
its pipes the water there needed for GER 4
tain public purposes. and 10 pay 10 per y
cent OF the cost of maintaining the part n.
of the ditch above the point where the
pipes OF the company were connected. l.
1t was also provided that the contract L
should not be construed to impose any 10
obligation on the city to keep the ditch
in repair. The water company was en-.
gagged in distributing water in pipes to
the inhabitants of the city for domes-
tic use, and it required water for this
purpose in winter as well as in sum-
mer. The city used the diuch to carry irri-
eating water, which was needed only in the
summer, and therefore did not keep up the
ditch in winter. For this reason it was the
custom of the water company TO assume
control of the ditch in winter
At the time the contract was made the
water was diverted from the river into this
ditch at a point below the defendants
land, and the part of the ditch now in dis
pute was not used at all. The heavy rains
of December, 1889, deepened the channel
of the river so that the diversion could not
be made below the line of the defendants
land, and the water company made a new
ditch extending into defendantsa land, but
not including any part of the ditch now in
dispute. The Provdencia company, then
the owner of the land, objected to this, and
in consequence thereof the water company
in January, 1890, made contract with
the Prov;dencia company whereby the
water company agreed to pay So day for
m, t,lfa !,
water. In the fall of 1891 it became
ne cessary to again change the place of di-
version to a point higher up the river; and
upon that the water company cleared out
the ditch now in controversy: and 1t has
ever since then been used either by the
water company or by the city. No new ar
rangement or contract was made between
the two companies at the time of this last
change, but the payment OF 50 dollars per
day continued to be made and accepted
without interruption, until about the time
this suit was begun.
The ere'statement of these facts would
seem to dispose of any claim that they con-
stitute an estoppel, or form basis for any
right against the city. The water company
had no authority to represent or contract
for the city in any capacity. 1t was the
lessee of twenty inches of water to be
taken from the ditch, but not the lessee of
any ditch or water right above its point of
diversion. And, even if it were the lessee
of the ditch, it would have no authority as
such to give away the property, or by its
conduct to bar the city of its right thereto.
Moreover, the contract 20 pay five dollars
a day did not refer to this ditch, nor was
the ditch re-opened in pursuance of that or
any other contract. There does not APP
pear to be any element in the case neces-
sary to make an estoppel. The city is in
no way involved in the controversy with
the Citizens Water company; did not
authorize or ratify the contract, and is not
bound thereby.