57 Colo. 14 | Colo. | 1914
Lead Opinion
delivered the opinion of the court:
Appellee, as plaintiff, brought suit against appellant, as defendant. His complaint included several causes of action. There was judgment for plaintiff and defendant appeals.
The first cause of action was to quiet plaintiff’s title to an interest which he claimed in water delivered by means of the Columbine ditch, and was based on a contract between plaintiff and the Divide Ditch Company, dated November 21st, 1901, wherein it was recited that the ditch company, in consideration of certain acts therein specified to be performed by plaintiff, agreed to deliver him, free of all expense, water sufficient for the irrigation of lands particularly described. The contract further recited that the company agreed to measure the water which might be secured by the Divide and Columbine ditches and determine what was the full one-third of such water and pay plaintiff annually on the 1st day
“By these presents does sell, convey and assign unto the said Divide Ditch Company the entire undivided one-third interest in and to all of the rights, privileges and franchises pertaining to and secured by the appropriations of water by said company from those streams known as Sand creek and Deadman creek in said Larimer county (and also all of the rights, privileges and franchises pertaining to and secured by the appropriation of water from the Columbine creek in said Larimer county). ’ ’
This contract is somewhat inartificial and ambiguous but it appears therefrom, and from the testimony, that plaintiff was the owner of an interest in the property conveyed, and that the consideration for such conveyance was the covenant on the part of the Divide Ditch Company to deliver him one-third of the water annually derived from the appropriations mentioned in the contract, for the irrigation of his land therein described, and in case he did not use or require all of this volume he was to receive $6.00 per million cubic feet for the difference between the amount he used to irrigate his 'land, and the full one-third of the water obtained and diverted each year from these sources. About February 15th, 1904, the Divide Ditch Company transferred the rights acquired under the contract to the defendant company. The defendant denied the contract as pleaded, which was set out, haec verba, in the complaint, and set up as the contract between the parties an agreement which contains no reference to the Columbine ditch. It appears from the testimony that the contract set out by the plaintiff was taken by the late Governor Eaton, then the president of the Divide Ditch Company. November 4th, 1902, plaintiff wrote a letter to Eaton, in which he stated:
*17 “I am compelled to again ask you for the contract relative to the Sand Creek ditch.”
A few days later Eaton replied:
“Inclosed please find contract as requested. I went to the County Clerk’s records this morning and failed to find the recorded contract. Then I came up here and found the contract that I had and in that contract the Columbine was included and I have taken the liberty to scratch it out as that was never in our agreement.”
The erasures made covered that portion of the contract as above quoted enclosed in parenthesis and also all reference to the Columbine ditch in other parts of the instrument. January 11th, 1907, plaintiff recorded the contract sent by Eaton with the erasures as made by him and also the letter written by Eaton. The only difference between the contracts pleaded by the respective parties is that in the one relied upon by plaintiff it is pleaded as though no erasures had been made while on the part of the defendant it was claimed that the contract between them was the one in which the erasures were made. The question thus presented is, which was the true contract between the parties, that is, whether the contract as changed by the erasures is the one by which the plaintiff is bound, or whether the defendant is bound by the contract as originally drafted. This becomes important, for the reason that plaintiff, under the contract as originally drafted was entitled to one-third of all the water carried annually by the divide ditch, from the appropriations he conveyed, including the volume diverted through the Columbine ditch, from its appropriations, when, under the contract after the erasures were made all consideration of that ditch and its appropriations would be excluded. Whether then plaintiff was or was not entitled to one-third of the water diverted by the Columbine ditch depends upon whether he is bound by the contract after it was changed by the erasures made by Eaton. This must be determined from the facts and the principles of law applicable thereto.
Plaintiff and one Wilson commenced the construe
“The right of way for that certain ditch known as the Columbine ditch, located in section twenty-six in Tp 10 N R 75 West with all rights to the appropriation of water and any and all interests therein.”
This is the same property which he claimed was included in the contract as originally drafted. By mesne conveyances the rights thus acquired by Eaton became vested in the defendant.
A material alteration in a written instrument may be ratified after it has been executed and delivered, and if so ratified will bind the parties; 7 Am. & Eng. Encyc.
Prior to the change he had parted with his interest in the Columbine ditch by conveyance to Eaton. This situation explains his silence and clearly manifested an intention on his part to ratify the contract as changed, for the very obvious reason that the facts as they existed at the time of the change required that the Columbine ditch should be excluded from the contract. Without any objection from plaintiff relative to the change, the ditch system was completed by the defendant and its predecessor. The silence of the plaintiff in these circumstances would naturally cause the Divide company as well as the defendant to conclude that the work of completing the system was being prosecuted with the understanding on their part and the part of the plaintiff that the contract as modified by the erasures evidenced the agreement between them and calls for the application of the legal maxim that, “He who is silent appears to consent.”
It is settled law that if a party by conduct has intimated that he consents to an act which has been done, or will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he can not question the legality of the act he has so sanctioned to the prejudice of those who have acted on the fair inference to be drawn
The trial court, however, held by the judgment rendered that the contract without the erasures was the agreement between the parties, and decreed that plaintiff’s right to water diverted by the Columbine ditch be quieted, and assessed damages for the failure of defendant to account to and pay him for his share of the water carried in tMs ditch. This we think was error for the reasons above stated.
Plaintiff also claimed and was awarded damages upon the ground that for the years 1906 and 1907 the defendant, without authority, had deducted from the volume carried by the Divide ditch 48 cubic feet per second of time, and for the year 1908, 21 cubic feet, thus reducing the volume to which the plaintiff claimed he was entitled to be paid for under his contract with the company. The testimony discloses that this water did not belong to the company, nor was it diverted for its use but that it represented water from appropriations made in Wyoming, which one Bruce Gr. Eaton claimed to have purchased, and that it was carried through the ditch system of defendant for his use and benefit. It may be that Eaton was without right to this water and could not lawfully divert it, but this is immaterial. Plaintiff certainly was not entitled to any portion of it except he established that it belonged to the company. This he failed to do. Independent of this, plaintiff is precluded from asserting any claim to this water, for the reason that the contract does not contemplate that he was to share in water except from the appropriations which he transferred.
The remaining question relates to the judgment awarding damages on the third cause of action. The averments of the complaint with respect to this cause are to the effect that for the year 1905 the defendant requested the plaintiff to rent a sufficient number of shares
Except as to this cause of action the judgment of the district court is reversed and the cause remanded for further proceedings in harmony with the views expressed in this opinion.
Two-thirds of the costs in this court will be taxed to appellee and one-third to appellant.
Judgment affirmed in part and reversed in part, and the cause remanded.
Chief Justice Musser and Mr. Justice Hill concur.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court:
In their brief for rehearing counsel for plaintiff contend, that under the pleadings the question of his consent to the changes in the contract was not presented because defendant did not plead a substitute agreement or the assent of plaintiff to the erasures. By answer, the defendant denied the contract set out in the complaint, and pleaded haec verba, the contract upon which it relied. Evidence to establish a contract need not be pleaded. Defendant having specifically set up the contract upon which it relied, could show that this instrument was the
From the testimony the Wyoming water is in no sense involved. Plaintiff’s rights are confined to the appropriations he transferred and as defined in his contract. His contract does not purport to give him any other interest. It is therefore wholly immaterial from what source or by what means additional water is secured by defendant or carried through its ditch, so long as by so doing plaintiff’s rights under his contract are not infringed, or defendant does not refuse to comply with the terms and conditions of that contract to his damage.
We have determined the case on the record before us, but this does not preclude either party on retrial, from introducing competent testimony which might establish facts different from those now presented.
The petition for rehearing is denied.
Rehearing denied.
Chiep Justice Musses and Mr. Justice Hill concur.