32 Colo. 437 | Colo. | 1904
delivered the opinion of the court.
Action to enjoin interference with irrigating ditches and water rights.
The subject-matter of the controversy is the ■Cape Horn Banch Ditch and the Wheel Banch Ditch and their accompanying water rights. The general purpose of the action is twofold: to enjoin.the defendant from using the same, and to quiet plaintiffs’ title, and the complaint contains every allegation that would he necessary in a hill to quiet title to these properties and to enjoin wrongful use of them. The'
The first point made by the appellant (defendant below) is that plaintiffs did not show possession, and as this action was brought under section 255 of the code, which requires that the plaintiff be in actual possession when the suit begins, the action fails. The plaintiffs (appellees here) say that their allegation of possession in the complaint was not denied. In this they are mistaken, for the answer specifically alleges ownership and possession in the defendant, and this, in effect, is a denial of possession in plaintiffs, hence they were put upon their proof. If this were merely an action to quiet title* and nothing else, it might be, under our former decisions, that this lack of proof would be fatal to plaintiffs’ case, but we cannot say that this was even the principal object of the suit. One, if not its principal, object was to enjoin defendant from interfering with plaintiffs’ use of water rights. The court certainly had cognizance of this as an independent ground of equitable jurisdiction, and having obtained jurisdiction of the subject-matter for this purpose, was at liberty to decide all of
The trust deed and the trustee’s deed contained a specific description of certain lands which the plaintiffs claim were the lands for the irrigation of which the water rights in question were originally appropriated and for which they had been continuously used and to which they became appurtenant, and were directly necessary and essential to the full enjoyment thereof, and without which the lands in question would be of little, or no, value. Neither in the granting clause, nor elsewhere in these instruments, were these water rights or ditches, as such, described, or in any way referred to. Plaintiffs (appellees here), however, maintain, and this is the main question in the case, that since the deeds were silent respecting the water rights and no reservation thereof was made by the grantor, the ditches and water rights necessarily passed as appurtenances to the lands which were specifically described in the instruments of conveyance. In support of this contention, they cite a number of cases from courts of the so-called arid states, where the doctrine of appropriation prevails, as well as from the states where the common-law rule of riparian ownership obtains, to the effect that a grant of a principal thing, in the absence of an express exception or reservation in the instrument of conveyance, perforce carries with it as an appurtenance whatever is in existence at the time and is directly necessary and essential to the principal thing granted!
It is unnecessary to dwell upon these cases. Learned counsel for plaintiffs are surely not unaware that this court has repeatedly announced a different
£ £ Although a water right may be appurtenant to the land, it is the subject of property and may be transferred either with or without the land. — Stickler v. City of Colorado Springs, 16 Colo. 61. Being therefore a distinct subject of grant, and transferable either with or without the land, whether a deed to land conveys the water right depends upon the intention of the grantor, which is to be gathered from the express terms of the deed; or, when it is silent as to the water right, from the presumption that arises from the circumstances, and whether such right is or is not incident to and necessary to the beneficial enjoyment of the land.”
This case was followed in Gelwicks v. Todd, 24 Colo. 494; Insurance Co. v. Childs, 25 Colo. 360; Daum v. Conley, 27 Colo. 56; King v. Ackroyd, 28 Colo. 488; and is now stare decisis with us. We are satisfied with it and again approve it. In the opinion in Gelwicks v. Todd, supra, was cited Frank v. Hicks, 4 Wyo. 502. Appellees place their main reliance apparently upon this ease, which they say declares that, in the absence of a direct exception or reservation in a deed of lands in irrigating which water rights have been used, the water rights necessarily pass as an appurtenance. Our reference to the case was only to the point that a water right might, in certain circumstances, pass as an appurtenance. Whether or not it does pass in this state depends upon the intention of the grantor, which is to be ascertained
There was no evidence whatever on the trial below as to the intention of plaintiffs’ grantors with reference to the water rights. The deed was entirely silent as to them. The intention of the grantor, then, must he gathered, if at all, from the circumstances of the case, and whether the water rights are, or are not, incident and necessary to the beneficial enjoyment of the land. In the absence of such showing we are constrained to say, upon the record now before us, that under the established doctrine in this state the water rights did not pass to plaintiffs as appurtenances to the lands which were the subject of the grant.
But appellees ’ counsel say that, though there was no evidence offered at the trial as to the intention of their grantor, there were in the complaint allegations of intention to convey the water rights, and that they were used upon, and were directly necessary and essential to the complete enjoyment of, the lands, and that these allegations are not denied by the answer, and therefoie it was not necessary to introduce evidence to prove what was not denied. Some of the denials are a species of negative pregnant, others conjunctive denials of conjunctive allegations. In these respects the answer was faulty. A careful examination of its contents discloses, however, that, in addition to these defective denials, there was a general denial of each and every allegation of the complaint not theretofore specifically admitted, and there are affirmative allega
If we believed that this answer was drawn for the purpose of evasion, or that its attempted denials were not made in good faith, we would be inclined to enforce the strictest rules of construction against the pleader; but we do not find indications of any such improper motive. If it is' indefinite and uncertain what facts in the complaint are, and what are not, denied, the plaintiffs, by a motion to make more specific and certain, might have had the defects corrected. — Bliss on Code Pleading (3 ed.) §§ 425, 331, 332. This was not done, and it would appear from the record that no objections on ground of defective denials were made or relied upon at the trial, but that, in this connection, the legal proposition which we have hereinbefore discussed was the one, and the only one, brought to the attention of the trial court. So that, notwithstanding the admitted imperfections of the denials of the answer, it was incumbent upon plaintiffs, by competent evidence, to establish the controverted allegations of the complaint as to the intention of their grantor, and the use, character and necessity of the alleged appurtenances, because such proof was essential to their cause of action.
The plaintiffs claim title to this subsequently constructed ditch and appropriated water right by virtue of the language of the habendum clause of the trust deed, which reads: “To have and to hold the same, with all the privileges thereunto belonging or in any wise appertaining, and all the estate, right, title, interest, claim or demand in and to the same, either now or which may hereafter be acquired, unto the said grantee, his heirs and assigns.” The appellees argue that this is equivalent to an after-acquired property clause, which is familiar in connection with mortgages, and cite the case of Frank v. Hicks, supra, as authority for the proposition that this after-acquired property was impressed with the lien of the trust deed. In that case the intention of the mortgagor was to include its “entire property,” both that in existence at the time and all like property thereafter acquired, and the intention was manifested in the granting clause of the mortgage. This habendum clause does not purport to be a grant of any after-acquired property, but merely to confirm in the grantee any estate or title in and to the lands specifically granted which the grantor' might thereafter acquire. In other words, the grantor said that if he
Appellees further object to the form of the decree quieting title to the Wheel Ranch Ditch in defendant, because the answer contains no cross-complaint, and does not ask for affirmative relief. Under the chancery practice, before the adoption of our code of procedure, a defendant seeking specific relief in a suit in chancery must do so by cross-bill, and must state the grounds upon which he relies for affirmative relief with the same strictness required of the plaintiff in the original bill. The same practice, it is said, prevails under the code. In San Juan, etc., M. Co. v. Finch, 6 Colo. 214, 223, the court said that "a defendant who becomes pro hac vice complainant, must, in his cross-bill, set forth the grounds relied upon for affirmative relief with the same strictness as the complainant in his original bill,” citing Tucker et al. v. McCoy, 3 Colo. 286. Appellees, however, are not in a position to complain of that part of the decree granting affirmative relief, even if, under an appropriate pleading with a proper prayer, it was wrong
Our conclusion is that that portion of the decree of the trial court in favor of the defendant as to the Wheel Ranch Ditch and water right is correct and should be affirmed, and no further proceedings with reference thereto should be had. That part of the decree in favor, of plaintiffs as to the Cape Horn Ranch Ditch and water right is wrong, and should be reversed.. The cause is, therefore, remanded to the district court with instructions to vacate that portion of its decree adjudging title to such last-mentioned property to be in plaintiffs, and if further proceedings be had respecting the same, that they be in accordance with the views expressed in this opinion, and the parties may have leave to amend their pleadings as they are advised.
Decree modified and cause remanded. ■