43 Colo. 32 | Colo. | 1908
delivered the opinion of the court:
Plaintiffs in error instituted an action in the court below against the water commissioner of water district No. 3, the superintendent of irrigation division No. 1, and the state engineer, the purpose of which was to compel these officials to recognize the right of the reservoir company to divert 19-30 of the appropriations belonging to the ditch company. The complaint alleges that the ditch company is the
The defendants filed answers, from which it appears that the main question between the plaintiffs and defendants is the right of the reservoir company to any portion of the decreed priorities of the ditch company, by virtue of the ownership of shares in
The New Cache la Poudre Irrigating Company, by leave of court, filed a petition in intervention, wherein it set forth that it was an appropriator from the Cache la Poudre river junior to the ditch company, but senior to the reservoir company. It then alleged facts upon which it is claimed that the ditch company has abandoned and forfeited its right to. the water represented by its priorities in excess of twenty-two cubic feet per second of time; that certain stockholders in the ditch company claim to have sold a certain amount of the capital stock of that company to the reservoir company under a contract, whereby the vendors were to continue in the possession of their certificates, and to divert water for the use of their land to the same extent theretofore enjoyed, and that the reservoir company was to have the right to divert for storage and direct irrigation the difference between the quantity of water actually needed by the vendors to supply their needs and the maximum represented by these certificates in the priorities of the ditch; that it is the purpose of the reservoir company to change the place and character of the use of water which it diverts from the canal of the ditch company, and that if it is permitted to divert water to which it claims to be entitled by virtue of its ownership of the shares of the ditch company, that it will deprive the intervenor of at least forty cubic feet of water per second of time during the irrigation season, which for more than twenty years last past has been customarily and continuously enjoyed by it and other junior appropriates.
Plaintiffs filed a motion to dismiss the petition of the intervenor for the reason that it did not show an interest in the subject-matter of controversy, and
A water commissioner is not required, nor is it his duty, to make any division or distribution of water between the users thereof from the same ditch ; neither has he any authority to interfere with the internal management • of the affairs of a ditch company ; but it is his duty to turn no more water into a ditch to which it may he entitled by virtue of any decree than is necessary to serve the needs of the consumers under such ditch, and to refuse to turn water into any ditch for the use of one not entitled thereto. The right of the reservoir company to a proportion of the priorities belonging to the ditch company, as stated by the plaintiffs in their complaint, depended upon the ownership of the stock of the ditch company. The water commissioner denied this ownership, so that he based his action, of which plaintiffs complain, upon a legal ground, and was merely discharging the duties which the law imposed upon him by refusing to turn water into the canal of the ditch company, for the use of one which, according to the issue made by his answer, was not entitled thereto. This was not a tort.
The intervenor company takes its supply of
“Any person shall be entitled to intervene in an action who has an interest in the matter in litigation, in the success of either of the parties to the action, or an interest against both. ’ ’
Under this provision it has been ruled by this court that a party is entitled to intervene in a suit between other parties when it appears that he has an interest in the subject-matter of litigation of such a direct and immediate character that he will either gain or lose by the direct legal operation and effect of the judgment, and that in determining the sufficiency of a petition to intervene, the averments of the petition, so far as well pleaded, must be taken as true. — Henry v. Travelers’ Ins. Co., 16 Colo. 179;
The purpose of our code provision on the subject of intervention is, that the one really interested in the result of an action may intervene, and be made a party, so that the whole controversy shall be ended in one action and by a single judgment. — Pomeroy’s Eights and Eemedies, § 411; Morey v. Lett, supra.
Prom the allegations of intervenor’s petition it is clear that it had that interest in the litigation between the original parties which entitled it to intervene. Por the purpose of determining the sufficiency of the petition, its allegations must be taken as true. It is apparent therefrom that the interest of intervenor in the litigation is actual; that it is ultimately and actually interested in the result of the litigation; that it is directly interested in the subject-matter of controversy, i. e., the right to divert water from the common source of supply of the plaintiffs and itself, and that it will either gain or lose by the operation of a judgment on the questions to be litigated between the plaintiffs and defendants; because, if the former win, the stream will be depleted to the detriment of intervenor; whereas, if the defendants are successful, it is benefited.
It would be practically impossible for one to intervene in an action without presenting a question of fact not involved in the pleadings of the original parties, and if this was inhibited, then our code provision on the subject of intervention would be of no avail. The question of whether or not a new issue of fact is presented by a petition of intervention is not the test to apply under a code provision as broad as ours, in determining whether an issue different from that between the original parties will be made by the intervenor. The issue between the plaintiffs and defendants — that is, the question to be deter-
Upon overruling the motion just considered, plaintiffs filed an answer to the petition of intervention. In what they denominate their further answer, they set up what they designate as certain unconscionable transactions on the part of the intervenor by which it is claimed they were deprived of the use of water for a considerable period of time. Counsel upon their part also claim that one purpose of this answer was to show that the intervenor £ £ did not come into court with clean hands.” To this further defense a demurrer was interposed by the intervenor, and sustained by the court. This ruling was correct. Without going into details as to what this further answer stated, it is sufficient to say that
After this ruling plaintiffs filed a motion for judgment on the pleadings, which was denied. That this ruling was correct is apparent from the questions already determined. By the answers of the water officials and the petition of intervention material questions of fact wére in issue which had to be determined from the testimony before a judgment could be rendered. In this state of the pleadings a motion for judgment thereon could not be entertained.
Thereafter there was a trial to the court and judgment and decree entered, which, at first, at least, was not satisfactory to either the plaintiffs or the intervenor company, as both excepted thereto; but the plaintiffs are the only parties who have brought the case here for review.
The court entered a decree to the effect that the reservoir company was the owner of six and one-half shares of the capital stock of its coplaintiff, and by virtue of such ownership, was entitled to divert, from the canal of the ditch company of the water of the decreed priorities of that company, for the use of its stockholders for direct irrigation only, and not for storage, one cubic foot of water per second of time for each share when needed and necessary for irrigation purposes. *
The next two errors assigned are to the effect that the court erred in entering this decree and making its findings of fact upon which it was predicated, and particularly in limiting the right of the reservoir company to one cubic foot of water per second for each share of stock to which it was decreed to be
There were other intervenors whose rights were adjudicated, which we have not mentioned, because their right to intervene is not in any way challenged.
It is also contended on behalf of the plaintiffs that the court erred in holding that the contracts between individual intervenors and the reservoir company evidencing their transfer of stock in the
The judgment of the district court is affirmed.
.Affirmed.
Chief Justice Steele and Mr. Justice Campbell concur.