103 P.2d 18 | Colo. | 1940
THE appearances in this court are in the same order as in the district court, and for convenience the parties are herein designated as plaintiffs and defendants.
Plaintiffs brought suit for an injunction to protect their right to the use of sufficient water to irrigate approximately five acres of land owned by them, and to acquire an easement for a ditch to convey the same across defendants' land. A temporary injunction was granted, but on final hearing to determine the propriety of permanent injunctive relief the court, at the close of plaintiffs' testimony and on motion of defendant for a nonsuit, denied such relief and dismissed plaintiffs' complaint. Plaintiffs seek a reversal of that judgment.
In their complaint plaintiffs allege that they are the owners of a five acre tract of land, which they describe by metes and bounds, "together with easement and rights of way for an irrigation ditch through and across lands to the south thereof, belonging to the defendant Hattie Holland, connecting with the main canal of the Carbondale ditch, as the said ditches and laterals are now constructed, with the right to run water through said ditches and laterals from the said Carbondale canal, together with any amount of water from said Carbondale canal or ditch, necessary for use by the plaintiffs herein upon the lands owned by them, above described"; that .5 of a cubic foot of water per second of time from said Carbondale canal is necessary for use upon said lands and that this amount of water is owned by plaintiffs; that they are entitled to the use of said lateral ditch, water, and water rights for the irrigation of their said lands and for domestic purposes; that without right *149 the defendants have shut off the water and interfered with such use and appropriated said water to their own use and benefit and threaten so to continue and thus deprive plaintiffs of the beneficial use of said easement and water to their great and irreparable damage; that plaintiffs use the said land as irrigated pasture; that they have growing thereon blue grass, clovers, and other domestic grasses requiring irrigation for their production; that an immediate necessity exists for injunctive relief to prevent the drying up and loss of said pastures and damages to plaintiffs which are incapable of calculation; and that they have no plain, speedy, or adequate remedy at law. They asked for a temporary restraining order and injunction to prevent the alleged wrongful interference with their ditch and irrigation rights and that upon final hearing the temporary injunction be made permanent. Plaintiffs further prayed that if the defendants made claim to any right, title, or interest in or to said laterals, ditches, easements, water, or water rights, or any thereof, that the court adjudge such claims to be without foundation or right and that title thereto be quieted in plaintiffs, and for such other and further relief as the court might deem proper in the premises.
Defendants for their answer interposed a general denial and separate defenses based on the twenty-year statute of limitations, the seven-year statute of limitations, and the eighteen-year statute of limitations; and later they filed a supplemental defense in which it was set forth specifically that the defendant Hattie Holland was the owner of all the ditch laterals and waters from the Carbondale canal described in plaintiffs' complaint. All new matter in the answer was denied by plaintiffs in their replication.
The evidence discloses that originally all of the lands owned by plaintiffs and defendant Hattie Holland (defendant Pete Bianco being her tenant) had belonged to Max Gerstle; that in the warranty deed by which plaintiffs' lands were conveyed by Max Gerstle to W. W. *150 Voris following the description of the lands appeared the following: "Together with the full and complete right to run a lateral water ditch through and across lands owned by said Max Gerstle, said lateral ditch to connect with a larger ditch running through lands owned by Oscar Holland, adjoining lands of Max Gerstle on the south said lateral ditch to run thence in a northern direction, connecting with the above described lands of W. W. Voris at or near the cabin house now occupied by said Voris, together with all rights, privileges and immunities to run water through said lateral ditch to the above described parcel of land at any and all times, when said W. W. Voris or his representatives or assigns may so desire with any amount of water necessary foruse on said land"; that in subsequent deeds of conveyance the water and ditch rights conveyed were described in the same language as that quoted from the deed from Gerstle to Voris; that in later conveyances in the chain of plaintiffs' title the rights conveyed were described as: "And any and all water rights connected therewith or appertaining thereto"; that in the deed from plaintiffs' immediate grantor the land in question was conveyed "together with all ditch and ditch rights and water and water rights connected therewith or appertaining thereto." It appears further from the evidence that when plaintiffs purchased the land it was irrigated land; that prior to their purchase they had leased and used the place for pasture; that it was irrigated and has been irrigated at all times by water from the Carbondale ditch; that from 1933 when plaintiffs first used the land to 1938, when they received a notice from defendants forbidding further use of water through any ditch over their land, the water used had all come from the Carbondale ditch, but had been applied through various laterals and ditches; that there were remains of the foundation of a building indicating where the old Voris cabin mentioned in the original deed from Gerstle to Voris had been located; that there were evidences of a *151 continuation onto plaintiffs' land at a point near the cabin site of a lateral ditch which follows a hogback across defendants' land extending in a northerly direction up to the land of plaintiffs; that plaintiff cleaned out this ditch in 1938 and began using water through it. It also appears from the evidence that plaintiffs had never performed any work on, or contributed anything toward the maintenance of, the Carbondale ditch and that they had never been asked so to do; that during one year plaintiffs had paid the town of Carbondale for certain water which they had used in irrigating their said land; and that the lateral that extends along the hogback across defendants' land and enters plaintiffs' land at the point near the old Voris cabin is the only lateral from which water can be applied to plaintiffs' land and irrigate the whole thereof.
With evidence proving or tending to prove the facts substantially as stated plaintiffs rested and defendants moved for a nonsuit on the ground that the evidence was wholly insufficient to entitle the plaintiffs to any relief, legal or equitable, and for the additional reason that it appeared that the only purpose of the proceedings was to obtain a permanent injunction designed to settle and adjudicate a title which is in dispute and not free from doubt since the rights and property sought to be protected by injunction were in good faith claimed by others.
The trial court was of the opinion that it was necessary to determine the extent of plaintiffs' right to water and the location of the right of way; that such rights could not be determined in an injunction suit; and therefore no injunctive relief could be granted. Plaintiffs then asked the privilege of reopening their case to submit testimony showing the use of the water through the lateral entering the place near the old Voris cabin described in the deed from Gerstle to Voris; that this lateral was the only one feasible for use in the irrigation of all of plaintiffs' land; that from time to time for many *152 years it had been used for the irrigation of the land; and that the land while owned by plaintiffs and their predecessors in interest, exceeding a period of twenty years, had been assessed as irrigated land and taxes paid thereon as such. The court expressed the view that even though such testimony were introduced, it would still leave the extent of the plaintiffs' water right and the location of the right of way uncertain, and for this reason no injunctive relief could be granted. The court's action in sustaining the motion for nonsuit and dismissing the complaint is assigned as error. Other assignments are presented which we deem it unnecessary to consider in view of our holding as to the assignment based on the sustaining of the motion.
[1-3] It appears that no motion for a new trial was filed and no order entered dispensing with the necessity of filing such a motion. Defendants contend that for this reason plaintiffs are not entitled to have the judgment of the district court reviewed on error. We are of the opinion that the assignment of error based on the sustaining of the motion of nonsuit involves solely a question of law and that in order to have the judgment based upon that ruling reviewed it was neither necessary to file a motion for a new trial, nor to secure an order dispensing with such a motion. The purport and effect of our decisions is that such a case is an exception to our Rule 8. Chemical Bank and Trust Companyv. National Mortgage and Discount Corporation,
The instant case is analogous to one phase of GutheilPark Inv. Co. v. Montclair,
[4] The case of Modrell v. Crews,
The judgment is reversed and the cause remanded for retrial.
MR. JUSTICE FRANCIS E. BOUCK and MR. JUSTICE KNOUS concur.