No. 85CA0264Colorado Court of Appeals.
Decided November 13, 1986.
Appeal from the District Court of Weld County Honorable John J. Althoff, Judge
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Robert C. Burroughs, for Plaintiffs-Appellants and Cross-Appellees.
Kim R. Lawrence, for Defendant-Appellee and Cross-Appellant.
Division I.
Opinion by JUDGE TURSI.
[1] Plaintiffs, Francis and Virginia Harvey, appeal the trial court judgment in favor of defendant, Grady Dyer, affirming an easement over their property for drainage of surface waters. The Harveys assert three grounds for error: (1) a fact stipulated at trial was not reflected in the judgment; (2) their expert witness was not allowed to state an opinion based on the documents which, he testified, were a type reasonably relied upon by engineering experts; and (3) their tendered jury instruction based on § 37-84-101, C.R.S., was refused. Dyer cross-appeals, asserting the trial court erred in denying his motion for default judgment on his counterclaim for attorney fees. The Harveys failed to answer this cross-appeal. We affirm. [2] The parties are adjacent property owners. The Harveys’ property lies between Dyer’s property, which is uphill, and Willow Creek, which is downhill. Dyer’s property is cut by a drainage ditch which runs east to west toward Willow Creek and then turns in a southwesterly direction running parallel to an abandoned railroad bed. That railroad bed marks the boundary line between the properties. Both parties purchased half of the railroad right-of-way when it was abandoned in 1976.Page 779
[3] The Harveys claims were based on several assertions of fact. First, they assert the railroad bed historically had a borrow ditch on Dyer’s side which ran parallel to it and collected the water from Dyer’s property, preventing the water from crossing the railroad bed and flooding their land. Second, they assert that Dyer gradually filled in the borrow ditch and raised the land near the level of the top of the roadbed. Third, they claim Dyer altered a tail water ditch on his property to flow toward their property. Finally, they assert Dyer did not maintain his tail water ditch at adequate dimensions to prevent water from overflowing onto their property. [4] The Harveys sought damages for flooding which occurred from 1980 through 1984 and an injunction requiring Dyer to reestablish the borrow ditch. Dyer answered, denying Harveys’ claims, and counterclaimed for attorney fees and costs, asserting the Harveys’ claims were malicious and frivolous. The Harveys did not reply to the counterclaim. [5] At trial, the jury returned a general verdict in favor of Dyer. The trial court denied the Harveys an injunction and entered judgment in favor of Dyer for costs. I
[6] The Harveys first assert the trial court’s order should be modified to conform to a fact stipulated for trial. We disagree.
II
[8] The Harveys next contend the trial court committed reversible error under CRE 703 when it barred the part of their expert engineer’s opinion testimony based on certain turn-of-the-century railroad plans. Dyer asserts this witness was not qualified as an expert witness and, therefore, CRE 703 in inapplicable. We disagree with both parties’ contentions.
III
[12] The Harveys’ final contention is the trial court committed reversible error by refusing their tendered jury instruction based on § 37-84-101, C.R.S. We disagree.
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194 Colo. 107, 570 P.2d 239 (1977). Section 37-84-101 requires owners of irrigation ditches to carefully maintain their embankments to prevent flood or damage to the property of others. This required maintenance includes prevention of breaks in or seepage through the embankment. Greeley Irrigating Co. v. House, 14 Colo. 549, 24 P. 329 (1890); Beaver Creek School Land Ditch Co. v. Elling, 27 Colo. App. 252, 148 P. 273 (1915). However, the Harveys made no claim that Dyer negligently maintained an irrigation ditch. Therefore, the trial court did not commit reversible error by rejecting their tendered instruction since it was not consistent with their legal theory of the case. Federal Insurance Co. v. Public Service Co., supra.
[14] Furthermore, the trial court did give an instruction which embodied the Harveys’ legal theory. They claimed their property was flooded because the tail water ditch was inadequate in size and the direction of the ditch was altered to flow toward their property. The trial court submitted Jury Instruction 13, which stated: [15] “The owner of an upper property has a legal and natural easement across a lower property for the drainage of surface waters flowing in their natural course and manner. Natural drainage conditions may be altered by an upper property owner provided the water is not sent down in a manner or quantity to do more harm than formerly. If you find, by a preponderance of the evidence, that the Defendant altered drainage conditions upon his property such as to send water down in a manner or quantity to do more harm than formerly on Plaintiffs’ property, and such caused damages to Plaintiffs’ property, then you must find for Plaintiffs. If you are unable, however, to find by a preponderance of the evidence, that Defendant altered the drainage conditions upon his property so as to send water down in a manner or quantity to do more harm than formerly upon Plaintiffs’ property, and caused damage to Plaintiffs’ property, then you must find for the Defendant.” [16] Since this instruction correctly states the law of the case and treated both parties fairly, there was no error in the instructions submitted to the jury. Aspen Plaza Co. v. Garcia, 691 P.2d 763 (Colo.App. 1984).IV
[17] Dyer asserts on cross-appeal that the trial court erred in failing to grant him a default judgment on his counterclaim for attorney fees pursuant to § 13-17-102, C.R.S. (1986 Cum. Supp.).
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