46 Colo. 544 | Colo. | 1909
delivered the opinion of the court:
This suit was begun in July, 1904, by William M. Allen, in the district court of thé city and county
Paragraph 9 of the plaintiff’s complaint is as follows:
“And the said defendant further alleges that the said Thomas T. Reno and his said estate has ever since the time of the said purchase been in the continual and uninterrupted use, possession, occupancy and control thereof, and had and still has a prior right to the use of the said one-sixth undivided part or portion of the said ditch, the right of way, the easement thereof, and the said proportionate amount of the water flowing therein and appropriated thereby by a right superior to any or all of the said defendants above named.”
Paragraph 14 is as follows:
“And the said parties including all the joint tenants named, as well as the other defendants, with the exception of L. A. Eeno and William Allen, have with intent to cheat and defraud the said Thomas T. Eeno, senior, and his said estate, and the heirs and creditors thereof and this said plaintiff, taken possession of ail of the said property of the estate' above mentioned, and entirely dispossessed the said estate of the same, as well as the heirs and creditors thereof, and this said ’ plaintiff, and peremptorily refused to1 permit this said plaintiff or the said estate, or the heirs and creditors thereof to use or in any manner enjoy the said property above described, or any part, or portion thereof, and without any right or legal authority have converted and appropriated the same to their own use. ’ ’
The plaintiff further alleges that the reasonable worth of the property which he seeks to recover is $2,500.00, and that a reasonable annual rental value thereof is $500.00. The prayer is for a decree and judgment of ownership, arid for possession of the property, and damages in the sum of $4,000.00.
For answer to the complaint the defendants take issue on practically all of its averments, including that of the alleged appointment of Allen-as administrator of the Eeno estate, and particularly as to the ownership, or right of possession, at any time, or at all, by the Eeno estate, of an undivided one-sixth
And for a further answer to the complaint, and as a part of the first defense, the defendants plead full settlement, by the administrator Eldro Upton, of the Thomas T. Reno estate, long prior to the alleged appointment of William M. Allen as administrator thereof; the sale of all of the real estate belonging to that estate, and also the fact that no one, neither the administrator, the heirs at law, or any other person or persons, ever claimed any interest in the Swadley ditch, or the waters thereof, on behalf of the Thomas T. Reno estate, or ever used or enjoyed the same for that estate, after the death of Thomas T. Reno in 1873. In 1904 William M. Allen, for the first time, gave expression to some claim on behalf of the estate of an interest in the ditch; that during all of this period, the administrator, and the heirs at law of Thomas T. Reno, deceased, had full knowledge of the adverse, undisputed, open and notorious possession, claim of ownership, occupancy, enjoyment and use by the defendants, and their predecessors, of that particular interest and right in said ditch, and the specific right to the use of water through it, now claimed by William M. Allen, as administrator.
The defendants, for a second defense, plead title to said interest in the ditch and water right by prescription, alleging, in substance, that for more than thirty 'years prior to the commencement of this action and prior to the appointment.of William M. Allen as the alleged administrator of Thomas T. Reno, deceased, and since early in the year 1872, the grantors of these defendants, and others claiming the same rights and interests, and the defendants themselves, have been in the open, notorious, ■ exclusive and uninterrupted possession, use and enjoyment of the
For a third defense the defendants plead and say in substance: that Thomas T. Reño died intestate in the month of July, A. D. 1873, and that at the time of his death he was not in possession, use or enjoyment of-any of the property or property rights claimed by the plaintiff as administrator; that for a long time prior to the death of said deceased, and for more than a period of one year previous thereto, he had not been in possession, use and enjoyment of said property and property rights; that for some time preceding the death of Thomas T. Reno, and at the time thereof, other persons and parties under whom these defendants claim, and these defendants, were in the open, notorious and exclusive possession thereof, claiming adversely to said Reno, and to all the world; that the persons so holding and claiming adversely, and these defendants and others claiming through and under said persons so holding and claiming at the time of the death of said Thomas T. Reno, deceased,- and prior thereto, have continued in the like open, notorious, exclusive, uninterrupted and adverse possession, use and enjoyment of said property
The fourth defense' pleads the bar of the statute of limitations, in which it is averred in substance, that if any action ever accrued to plaintiff, as administrator of the estate of Thomas T. Reno, or to any person representing that estate, or to any. one of the heirs thereof, such right or cause of action accrued more than thirty years prior to the beginning of this suit, and is therefore barred at the time of the commencement of this suit and now.
On the new matter of the answer, and on each separate defense thereof, the plaintiff took issue in reply) Trial was had to the court and findings upon which a judgment of dismissal was predicated were entered, general in their nature, and to the effect that at the time of the commencement of this action the estate of Thomas T. Reno had no interest in the Swadley ditch or water right.
The material facts disclosed at the trial are in brief about as follows: Thomas T. Reno, in 1864, took a bill of sale from one John Reno, his son, for an undivided one-half of the latter’s interest in the Swadley ditch and water right, which one-half interest is described, in the bill of sale, as being an undivided one-eighth of the whole ditch. In July, 1873, Thomas T. Reno died intestate. In 1875 one Eldro
The Swadley ditch has been in existence since prior to 1860, and until .the present trouble arose its course seems to have been smooth and the parties interested in it seem to have gotten along without' apparent friction. Some time in the later sixties this ditch was divided up, that is, marked off into sections, according to the number of interests in it, ahd instead of a fund being provided for the care and maintenance of the ditch as a whole, it was kept in repair by the different owners looking after their respective sections. There were eight sections, but only five owners, one owner having an undivided one-half interest, George C. Swadley, or four-eighths,, and four other owners one-eighth apiece, who were William M. Allen, holding in his individual right, Louis Reno, the Longans, and the Farmer brothers. Later other parties became interested in portions of the Swadley interest ;■ the defendant Cole succeeded to the Longan interest, and the Secrests and others to the Farmer interest.
For over thirty-six years Allen took care of his portion of the ditch and got one-eighth of the water; during the same period the Longans and those claiming under them cared for their section and got one-eighth of the water; the Farmers and their successors for a like interest; Louis Reno, for the same pe’riod, held, used, enjoyed and eared for his section and got one-eighth of the water; and George C. Swadley cared for the remainder of the ditch and received the balance, or four-eighths of the water. During this entire period each user of water from the ditch, and their respective predecessors and grantors, claimed ownership in, had possession thereof and use of water therefrom, in the proportions above indicated. Upon this basis each had proceeded with the
There is abundant competent testimony to show that Thomas T. Beno in his lifetime, some time in the early seventies, disposed of his interest in this ditch
There is no question of law involved, necessary to be determined, as we view the matter, and the con
There may have been, strictly speaking, technical error on the part of the court in the admission and exclusion of testimony. We do not consider in detail these objections. It is so clear, upon the merits of the whole controversy, that the estate cannot recover, that discussion of mere technical objections can avail nothing. In a case like this, certainly, no mere technicalities should be permitted to intervene to aid, encourage and prolong litigation, in support of a right of such doubtful import as the one here involved, since, in any event, the ultimate conclusion upon the merits must be always the same. Indeed we are aware of no principle of law, that can