50 Colo. 602 | Colo. | 1911
delivered the opinion of the court:
Appellee sued the appellant to recover an amount alleged to be due from it to him as its pro rata share for services performed by him as water commissioner of Water District No. 9. The appellant denied that its county of Clear Creek, or any part thereof, was embraced in said water district, and alleged that there are no lands in said county irrigated from Bear Creek or any of its tributaries. It denied that the appellee was the water commissioner in said District No. 9, and denied that payment had not been made for such services. Trial was to the court; judgment was for the plaintiff in the sum of $1,138.33, from which this appeal is prosecuted.
The statutory provisions applicable to the controversy are as follows, “That district No., nine shall consist of all lands irrigated by ditches taking water from Bear creek and its tributaries.” — Mills’ Annotated Statutes, sec. 2319. '
“The water commissioner shall be entitled to' pay * * * and be paid by the county or- counties in which his irrigating district may lie. * * each board of county commissioners shall pay its pro rata share thereof.’’ — Mills’ Annotated Statutes, sec. 2387.
It will be seen that in the section creating Water District No. 9, Clear Creek County is not mentioned by name; hence, whether it or any part thereof was embraced in said District No. 9 was a question of
Under this state of the record, we think the trial court correct in holding that Clear Creek County was liable for its pro rata (one-third) of the services rendered by the water commissioner in Water District No. 9.
The fact that none of the services performed were rendered in the County of Clear Creek is no defense to the action, and is fully answered in the
The fact that decreed priorities had not yet been established for these ditches is likewise no defense to this action. This question was thoroughly considered in the case of Chew v. Board of County Commissioners of Fremont County, 18 Col. App. 162. Also, the fact that there is less land irrigated in the county of Clear Creek than the other counties in the district and, for that reason, it would he inequitable to compel the appellant county to pay its pro rata share of the total, constitutes no part of any defense to the action. The legislature having seen fit to provide this method of payment, it would he judicial legislation upon the part of the courts to attempt to arrange it otherwise.
The second defense urged that the appellee was not lawfully appointed, for the reason that he was not recommended by the County Commissioners of Clear Creek County, and that they took no part concerning his official bond, is not properly here for determination. The record discloses that he had been appointed, furnished his official bond, and was performing the duties of the office. Chapter 27 of the code provides the method of procedure by which the title to an office can he tried. It cannot be thus inquired into in a collateral proceeding. — Henderson v. Glynn, 2 Col. App. 303; Pueblo County v. Gould, 6 Col. App. 44; Montezuma County v. Wheeler, 39 Colo. 207.
The third contention pertains to the amount of the judgment. It is alleged that it is excessive, for the reason that during a part of the time these services were being rendered, Jefferson County paid appellee for one-half of them, and that Arapahoe County, for a time, paid to him one-half of a certain amount thereof. It further appears that during this
For the reasons stated, the judgment is affirmed.
Affirmed.
• Chief Justice Campbell and Mr. Justice Gabbert concur. •