3 Colo. App. 170 | Colo. Ct. App. | 1893
delivered the opinion of the court.
The proceeding was an application for a mandamus to compel the defendant corporation to deliver to the petitioner seventy inches of water to irrigate his tract of eighty acres. His right to it is predicated upon prescription or a supposed statutory prescriptive right by reason of formerly having for a number of years purchased and received that quantity. To enforce this supposed right application was made for the writ. The action or proceeding appears to have been misunderstood by the court and counsel. The proceeding by mandamus is a purely legal, civil proceeding; no element of equity or application of equitable law is or can be involved. It is “ directed to any person, corporation or inferior court of judicature * * * requiring them to do some particular thing, therein specified, which pertains to their office or duty.” 3 Blacks. Com. 110. “ Is directed to some person, corporation or inferior court requiring them to do some particular thing therein specified, which appertains to their office or duty, and which is supposed to be consonant with right and justice, and when there is no other adequate remedy at law.” Kendall v. United States, 12 Pet. 524.
In Rex v. Barker, 3 Burr. 1265, Lord Mansfield said:— “ Where there is a right to execute an office, perform a service ora function or exercise a franchise (more especially if it be a matter of public concern or attended with profit) and a person is kept out of possession or dispossessed of such right, and has no other specific, legal remedy, this court ought to assist by a mandamus upon reasons of justice, as the writ expresses, and upon reasons of public policy to preserve peace, order and good government.”
The general statutory definition in the United States is : “ That the writ runs to an inferior tribunal, bo'ird, corporation or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or sta
“ The writ only lies to enforce duties imposed by law, and neither stipulation nor the agreement of the parties can change the uses or the extent of the writ of mandamus.” The legal right to the writ must be clear and unquestionable, and the performance of the duty specifically imposed. See Freon v. Carriage Co., 42 Ohio St. 30; People v. Green, 64 N. Y. 499; Mobile & O. R. R. v. Wisdom, 5 Heisk. (Tenn.) 125.
It will not lie to enforce private contracts. Benson v. Paull, 6 Fl. & Bl. 273; State v. Bridge Co., 20 Kans. 404; People v. Dulany, 96 Ill. 503; Tobey v. Hakes, 54 Conn. 274.
“ It is considered to be a harsh remedy, and to be substituted for the ordinary process only in extraordinary cases.” State v. New Orleans R. Co., 42 La. An. 138.
The writ has always been kept within its own narrow limits, and the courts have universally been unwilling to extend its operation. Blair v. Marye, 80 Va. 485; State v. Young, 38 La. An. 923.
It will readily be seen that the respondent in its answer and what may be regarded as a cross complaint in setting up the supposed equitable rights of the Hackberry Company, and praying that it be decreed to be the owner of the water in controversy, exceeded the limits of the defense allowed bylaw, and that part should have been disregarded or stricken out. Nor could the court, even by request and agreement of parties, change an arbitrary legal proceeding brought to enforce a specific duty into a suit in equity, and adjudicate the equities between the petitioner and the intervenor. Such equities can only be adjusted by the proper proceeding instituted by one of the contending parties.
So far as the answer of the respondent, by the allegations contained, sets up facts showing it was not legally, nor in the performance of a specific duty, obliged to deliver the water, or in other words, in so far as it set up the facts to defeat the issuance of the writ, was proper, and the issues thus formed were competent to be tried. The evidence shows that
The balance of the finding and judgment wherein the intervenor is decreed entitled to the water as against the petitioner and respondent is reversed and held for naught, being in excess of the authority of the court.
The judgment denying the writ-of mandamus is affirmed.
Balance reversed..