10 Colo. App. 276 | Colo. Ct. App. | 1897
delivered the opinion of the court.
The fact that this judgment was rendered on the pleadings coupled with the consideration that the plaintiff apparently has rights which the defendant evidently infracted, leads us to reverse it, though first impressions might impel its affirmance. The complaint is inartificial, and is wanting in the certainty, accuracy and clearness of statement of the plaintiff’s right and title which should characterize a bill in equity. Some of the material facts are alleged with so much indistinctness and incompleteness as to render those with which they are connected inert and inefficient. The defendant however, did not demur, but answered, admitted many of the material facts and set up in hcec verla the contract which the parties had made. This supplied what the plaintiff omitted to aver with sufficient fullness whereby the nature and extent of the rights of the Chicosa company were somewhat clearly exhibited. This permits us measurably to estimate and declare the relative obligations of the parties and adjudge the plaintiff entitled to offer proof of the other essential elements of its case, and maintaining it in these respects, obtain a decree which shall protect the company.
The plaintiff and appellant is the Chicosa Irrigating Ditch Company, the defendants are the El Moro Ditch Company and sundry other parties, who were stockholders and either interested in the El Moro company in the ownership of the ditch, or in the doing of the acts of which the Chicosa com
The ditch was ran under this agreement until the fall of 1894, when the dam and headgate on the Purgatoire river were washed out by a flood. This seems to have been the commencement of the difficulty between the two corporations. The situation of the river, possibly by a change in its channel, as to which the plaintiff does not advise us, made it impracticable to replace the head-gate. This fact is conceded by the defendants, and the parties could not agree either on the point at which the water should be thereafter taken, or on the division of the expenses necessary for the repair of the ditch, and it led the Chicosa company to do what may possibly have been the inciting cause of the disagreement. At all events, as near as we are able to gather the El Moro company failed to reconstruct the dam or the head-gate, or to build any other whereby water could be procured for the two companies. We are groping a little blindly in stating some of these matters because of the indefiniteness of the complaint and the uncertainty of the answer. We simply indicate what seems to us to be the facts without in anywise concluding either party as to the proof, or intimating what our conclusions might be should the facts be otherwise than as they appear, or should the parties have any further litigation. We shall expressly limit this decision to an adjudication as to what the rights of the parties now appear to be from the bill and answer. After the companies disagreed about the rebuilding of the dam and headgate, possibly differing as to the point at which the water should be taken, the Chicosa company, fearing the loss of its water and the sacrifice of the rights of its stockholders and possible contract claimants, bought a right of way through some land from a point on the line of the El Moro ditch to a point farther up the river. Having secured this right of way, the Chicosa company dug a ditch from the river to the El Moro ditch, put in a head-gate and proceeded to run water to the junction and into their own canal. The
The agreement resulted in a grant of something more than a license, and if it was a license, it was so clearly executed upon a sufficient consideration as to prevent its revocation at the will of the El Moro company. Washburn on Easements, chap. 5, § 7, p. 678; chap. 3, § 3, p. 322; chap. 1, § 3, p. 99.
We do not undertake to determine as an absolute proposition of law whether a license thus given may ever be revoked, but we are quite clearly of the opinion that it cannot be revoked at the will of the licenser. He is without authority to disturb the right which he has granted, which has been entered into and enjoyed by the other party who has paid an adequate consideration for it, and if he attempts to disturb the licensee, he may be restrained from interfering with the granted privileges until the matter can be heard and determined on full proof and final hearing.
It is not necessary to consider whether the court was right in issuing its mandatory writ, or whether that should have been done, if at all, in proceedings to condemn the right of way and acquire title under the statute. It is possible the court concluded it ought not to interfere by injunction to protect the plaintiff’s rights without the interposition of this condition pending the final hearing, but since the bill was dismissed it is no longer a practical question in the case.
Concluding that the court erred in dismissing the case on the bill and answer, we shall reverse the judgment with directions to the court below to permit the plaintiff to amend his complaint as he may be advised, and on answer, there being no radical change in the statement of the contractual rights of the parties, the case will proceed to trial and judgment.
Reversed.