59 Colo. 583 | Colo. | 1915
delivered the opinion of the court.
This controversy grows out of the receivership of two Colorado Corporations, to-wit: The Homestead Canal and Reservoir Company and The Dickson Reservoir and Irrigation Company, Avhose joint property constitute, in substantial effect, one irrigation system, the water of the latter being conveyed into its own reservoirs through the reservoirs of the former. George Dick had been appointed and qualified as receiver of each, and subsequently the proceedings were consolidated and continued as one action, though the orders made and entered therein involved the transactions of both corporations. In T907 The Homestead Canal and Reservoir Company sold certain full paid water rights on the basis of approximately $15.00 per acre. Of these William H. Dickson purchased a right for 320 acres, rendering legal services therefor, and a contract conveying such right was duly executed and delivered to him under date of Dee. 19, 1907. Thereafter The Dickson Reservoir and Irrigation Company was organized, and Dickson subsequently purchased from it a like water right, the two water rights, however, to be used on the same 320 acres. William H. Dickson
All of the aforesaid contracts were entered into, and assignments thereof made, at a time when both corporations were free from debt, and in no sense insolvent, and long prior to the appointment of the receiver. Upon petition of the receiver the court entered an order requiring the holders of all water contracts, whether full paid or otherwise, to bring the same into court and have their validity adjudicated. Thereupon plaintiffs in error, among others, filed their respective contracts hereinbefore designated. The. receiver, claiming that such contracts were executory, and bur
The facts of the case and the action of the court in the-premises make of this a very anomalous proceeding. The respective complaints, upon which the receiver was appointed, disclose that the plaintiffs therein, and the plaintiffs in error here, as well as others, had purchased water rights from one or both of the corporations, and that plaintiffs therein had paid only a portion of the purchase price of such water rights; that the reservoirs and canals of the companies were out of repair, and the corporations were severally unable to prosecute the work of repairing the same ;• that unless the property of the corporations be protected and preserved by the court, and the contracts of plaintiffs therein, and of those similarly situated, be carried out and performed, the interest of plaintiffs and others similarly-situated would be lost. The relief asked in each complaint was the enforcement of the respective contracts, the conservation of the property of the corporation for the performance' and satisfaction of such contracts, and others of similar character, and the appointment of a receiver for the purpose of performing the terms and conditions of such contracts, etc.’ The only distinction between the position of
Each contract in question constituted a bargain and sale which passed the property in the water rights sold. The transaction went further than to only create rights in personam to a fulfillment of the terms of the contract. It created'rights in rem to an enjoyment of such property, and was, therefore, an executed contract. 9 Cyc. p. 244, Par. “C.”
Judgment reversed.