The daily sentinel. [volume] (Grand Junction, Colo.) 1893-current, 1912-02-26

! the construction Oh SAID project ana
that he authorized the construction
of the canals in connection herewith,
among them being the canal through
| the lands of the Plaintiff Masters;
and thereafter caused written notice
to be served upon the Plaintiff Mas
! tiers that the United States had To-
Gated and would construct its West
canal upon the right-of-way afore-
said over the lands of the said
plaintiff.
The defendants are employees of the
reclamation service of the United
States and allege that they have no
interest in the lands, save as such
employees. They admit that they did
tear down the fences and commence
to pillow up the lands as above stated
and they further admit that they
viii, unless restrained by injunctive
| order, proceed to pillow up the prem
Uses of the plaintiff, and construct
canal through the lands of the plant
iff; and that the strip of land which
they intend to take is 100 feet in
width, .and amounts to about ten
acres. They admit further that the
| only right they have or intend to ex-
ercise is, as they allege, the right to
take possession of the lands against
the will of the plaintiffs under the
| direction of the secretary of the in
terror, and that the said right was
secured to the United States govern
ment by the proviso in the patent is
sued to plaintiff. and that if they
have no such right the temporary
writ of injunction should issue in
this cause
The government of the United
States has secured and owns what is
known as the Boomer ditch, crossing
the eastern portion of the lands of
| the plaintiff, which is sufficient to
carry the waters sought to be d.
Iyerted through the proposed canal to
| be constructed through the lands of
| the plaintiff. AT the time the patent
was issued there were no surveys
and no projects for the construction
of canals across the lands so conveyed
by patent, and, of course. there was
no definite right-of-way for canals or
bitches laid out on the same. The
reservation was general, and applied
to no particular part of the lands,
and was vague and uncertain in ev-
cry particular.
If at any time in the future the
government should lay out a canal
or ditch across these lands, for which
the government has received its full
compensation from the Plaintiff Mas
tiers, and take any portion or all of
said lands for the construction of
such canal or canals, ditch or bitches,
then the title of the Plaintiff Masters
would be jeopardized to each and
Ievery subdivision or acre of the lands
so conveyed. and he would not be
secure in the exercise of the rights of
a landlord over any portion of his
lands. | hold that the proviso so
contained in the patent is void for
uncertainty.
If the United States or the defend
ants in this case had any right to
the possession of the strip of land
which they admit they intend to take
from the possession of the plaintiffs
they could not under any law be jus
titled in asserting that right by force
as against the possession of the
plaintiffs. To hold that a man. be-
cause he happens to be an officer of
the United States government, can
forcibly eject any man from his
premises, would be. in my judgment
a denial of one of the fundamental
principles of the law. The only way
to assert the right. if any which de-
PENDANTS allege they have. would be
jurisdiction and seek under an action
of ejectment to secure possession of
the property which the plaintiffs de-
ny to them.
The law governing the construc-
ton of canals and bitches by the gov
eminent of the United States provides
that, it shall be the same as that pro-
vided in the laws of the different
states, and that the laws of the sew
eral states shall govern. The law
of the state of Colorado prohibits
the condemnation or taking of lands
for second ditch across the property
of land owner. The government
of the United States, having in this
case secured and now owns the
Boomer ditch, which is ample for the
uses of the government in conduct
ing the waters through the proposed
canal. and the condemnation or TAX
ing of second right-of-way for the
same ditch through the lands of the
plaintiff is prohibited by the laws
of the state of Colorado.
There are many other matters which
have been presented for my consid-
Grafton in this case, which l deem
it unnecessary at this time to con-
slider. as, in nay judgment, the facts
and the law as above stated are con-
: elusive of the rights of the parties
! in this action.
I 1t is Therefore Ordered that a tenn
porary injunction be issued in this
lcause, restraining the defendants, and
each of them. their agents. servants
. and employees, and all persons acting
under or through them, or either of
them, or under their authority or
control, from in any manner enter
ing upon or interfering with the lands
. and promises of the plaintiffs, or
Think before you buy your shoes
: and then YOU will buy from McCon-