26 Colo. 66 | Colo. | 1899
delivered the opinion of the court.
While the complaint is inartificially drawn, we do not think it is obnoxious to the first ground of demurrer. Its averments sufficiently disclose the following state of facts:
That the plaintiffs are the owners in severalty of certain tracts of land under defendant’s ditch; that they diverted definite amounts of water from the natural stream through defendant’s ditch, at certain times from 1872 to 1885, and applied the same to the irrigation of their lands; that ever since such appropriations, they have continued the use of the water and the payment of the compensation required each and every year during the irrigating season, until the years 1894 and 1895,"when they were prevented from so doing by the wrongful acts of defendants; that the amounts of water appropriated were, and are, necessary for the use of said lands to make the same productive; that at all times between the years 1885 and 1898 the defendant recognized the priorities of the plaintiffs acquired under and by virtue of the enlargement of the ditch in 1872, and their right to the use of the water in the quantities claimed.
It is also apparent, from other averments, that the defendant does not base its right to deprive plaintiffs of any water because they are not entitled to the amounts claimed by them, or because such amounts are in excess of their actual needs; but solely because it assumes that in times of scarcity of water in its ditch, the plaintiffs are obliged to prorate with other consumers, notwithstanding their priorities are subsequent to plaintiffs’. It will be seen, therefore, that it is not an action to compel defendant company to deliver to plaintiffs specific amounts of water, the right to which is denied by the company, as defendant’s counsel seem to consider it; but its object and purpose is to protect plaintiffs at all times in the use and enjoyment of the water, which they aver right
In High on Injunctions, supra, the rule is stated as follows: “ As regards the joinder of parties plaintiff in actions of this nature, it is held that owners in severalty of different tracts or premises upon a mill stream, who are operating mills thereon, may maintain an action to restrain the improper diversion of water to the injury of their mills. In such case, although the titles are different, yet the injury, being a common one, creates such a community of interest as to entitle them to join in the action,” and is thus stated by Story: “ Another exception to the general doctrine respecting multifariousness and misjoinder, which has already been alluded to, is where the parties (either plaintiffs or defendants) have one common interest touching the matter of the bill, although they claim under distinct titles and have independent interests.”
In Ballou v. Inhabitants of Hopkinton, supra, the owners of different mills were permitted to join in a bill in equity to enjoin a stranger from diverting water from their common source of supply. Shaw, Chief Justice, delivering the opinion, said:
*72 “ Although the plaintiffs are several owners of separate and distinct mills, injured by the alleged stoppage, diversion and waste of the water of Mill river, and to recover damage for which each owner must bring his several action at law to obtain a remedy for his particular injury, yet they have a joint and common right in the natural flow of the stream, and in the reservoir by which its power is increased, and a joint interest in the remedy which equity alone can afford, in maintaining a regular flow of the water of the reservoir at suitable and proper times, so as best to sub-serve the equal rights of them all. The remedy in equity, therefore, would by one decree in one suit prevent a multiplicity of actions.”
In the present case, although the appropriations of plaintiffs are several, yet they constitute in the aggregate the 154 cubic feet of water appropriated through the enlargement of 1872, and they have a joint and common right to have this amount of water carried and delivered to them by the defendant. It is this common right, as well as the several rights of plaintiffs, that is being invaded. Their right, therefore, to join in invoking “the remedy which equity alone can afford,” and thus prevent a multiplicity of actions, is abundantly sustained by the foregoing decisions.
The other ground of the demurrer, namely, that there is a defect of parties defendant, presents a more serious objection. Section 11 of the code of civil procedure provides that: “Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.”
While it appears that the injury complained of results solely from the action of the defendant, it also appears that it is acting as the agent and in behalf of other stockholders and consumers of water under its ditch, upon the theory, as we have seen, that such stockholders or consumers are entitled to, or claim, the right to prorate in the water claimed by plaintiffs, when by reason of scarcity the ditch is not en
As was said in the latter case:
“ A court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, it may dismiss the complaint or cause them to be brought in, as the exigencies of the case may require. * * * The better practice in the circuit court is to order the necessary parties to be brought in, and that should always be done under ordinary circumstances. But we have no such authority, and could only in a proper case, and where the equities justify, remand the cause to the court below for that purpose.”
We think this is a correct statement of the rule applicable to this case. The ruling of the court below upon this ground of demurrer was unquestionably correct, and the plaintiffs might, and should, have amended the complaint in this par
Affirmed,
