28 Colo. 298 | Colo. | 1901
delivered the opinion of the court.
Counsel for plaintiff, who originally instituted this action and had charge of the proceedings below, states in his brief, filed on behalf of appellant, that this is “an action for the partition of the waters of a non-navigable natural stream, to-wit: the South Arkansas river” between the parties to this action. The only rights involved relate to those for the purposes of irrigation. The claim being that it is a suit in partition, the only question necessary to determine is, whether or not it states facts sufficient to constitute an action of that character, or upon which it can be maintained. It is contended by counsel for appellant that an action in partition is a special proceeding, and therefore a demurrer could not properly be interposed, but inasmuch as it was, it should be treated as an answer admitting the averments of the pleading to which it was directed. Eor this reason it is urged that the motion for judgment should have been sustained It is immaterial how the plea interposed on behalf of defendants shall be treated, for, regardless of what particular rules of pleading shall govern, in cases of t!$is character, the
Priorities in the stream, therefore, are only involved. According to the facts of this case, as detailed in the petition, the right which plaintiff has to divert a given volume of water from the river is not one in which the other parties to this proceeding have any interest whatever, and so with the priorities which the defendants may have acquired. Partition certainly cannot be had of property which is not owned jointly by two or more. It appears, then, there is nothing which is the subject of division in a partition suit. Plaintiff does not claim, or attempt to assert, any right except one, which might be the subject of partition; so, conceding that it may appear from the averments of the petition that he is entitled to certain priorities in the waters of the stream, he does not state a cause of action in partition, and his action was properly dismissed. The judgment of the district court is affirmed.
Affirmed.