73 Colo. 438 | Colo. | 1923
delivered the opinion of the court.
This is a controversy over water rights. The decree of the court was on defendants’ motion for judgment on the pleadings. The amended complaint has two causes of action. The first cause, admitting that defendants’ adjudicated priority right was for 40 cubic second feet, alleged that the decree, which awarded the same, was conditional, not absolute; and that the condition upon which the right to the use of water depends has been complied with by defendants only to the extent of 5 cubic feet per second of time, which the plaintiffs conceded the defendants were entitled to divert and use as against their adjudicated subsequent priorities. The object of this first cause pf action seems to be, as stated by the plaintiffs in their brief, “to avoid or, at least, scale down to not exceeding 5 second cubic feet,” defendants’ priority. The second cause of action alleges that the decree, the one set forth in the first cause of action, is void and of no effect as against the plaintiffs, because defendants’ statement of claim filed in the adjudication proceedings was not verified as required by the governing statute, and therefore, the district court, in which the proceedings were pending, was without jurisdiction to take any step whatever therein. The relief sought under the second cause is a decree declaring void defendants’ adjudication decree, except as to the 5 second feet conceded by the plaintiffs to the defendants.
We first dispose of the second cause of action. It is insufficient and subject to a general demurrer. Inconsistent defenses are allowed, but each separate cause of action must be consistent with itself. Here in this second cause one averment declares defendants’ decree to be void. It is coupled with another averment that this decree, one, inseparable and indivisible, is valid as to 5 of the 40 cubic feet awarded. One allegation destroys the other and leaves the entire cause hopelessly bad. Even if this conclusion is not sound, the second cause of action wholly fails in its avowed purpose to disclose a lack of jurisdiction by the district court, in which the defendants’ decree was pronounced. It is said the court did not have jurisdiction because defendants’ statement of claim filed therein was not verified as the governing statute requires. Our attention is not directed to any provision of this statute which requires, in a supplemental proceeding, that such statement of claim should be verified as a condition precedent to any action thereon by the court. Section 1755 C. L. 1921 does contain a requirement that statements filed in the original proceeding for the general decree, be verified and that they must be filed before June 1, 1881. That can not apply to proceedings thereafter initiated, but if there was such a requirement as to veri
The second cause of action, therefore, being eliminated, the decree here for review, if it has any foundation at all, must be, as it purports to be, based on the first cause of action. Plaintiffs therein rely upon allegations supposed to show that defendants’ decree 'of adjudication was conditional, not absolute, and that the conditions upon which their rights depend have never been complied with, except as to 5 second cubic feet, and, as to that part of defendants’ adjudicated priority, plaintiffs admit that the same is superior to their subsequent appropriation. If this decree was absolute, not conditional, plaintiffs’ entire case under the first cause of action falls. Turning to the decree as pleaded in the answer and admitted in the replication, we find that on its face it is absolute, not conditional. Nothing was left open for future determination.
In reaching this conclusion we base it upon the face of the decree as shown by its adjudicating clause. Plaintiffs, however, seek to bring this case within the doctrine of the Drach case, because in the supplemental decree of 1893 there is a separate clause which, in effect, says that the findings and decree in the supplemental proceedings shall be subject to the same conditions and provisions as are contained in the earlier general decree of 1888; and, as in the 1888 decree there is a clause that priorities, though established by that decree, are, nevertheless, restricted, and the water shall flow into the ditches in such ratio and proportion as the lands under said ditches respectively shall be brought under practical cultivation with reasonable diligence, therefore, this provision of 1888 is read into, and becomes part of, the supplemental decree of 1893 and makes the same conditional, not absolute. We can not agree with such a strained construction. If the clause of the 1893 decree, referring to the general earlier decree, is applicable at all and means anything, it is that the supplemental decree, being later in time, is subject to the former decree in its priorities; that is, the rights adjudicated in the decree of 1893 are subordinate and subject to those adjudicated in 1888. The clause of the 1888 decree which requires the use of the water to be
In effect the decree upon this trial is that the defendants own and are entitled to use of their appropriation, only 14.2 cubic feet out of the 40 feet of water per second of time, established by the decree of 1893. The defendants have not assigned cross-error. We, therefore, do not pass upon the power of the court under the pleadings, in thus limiting or scaling down the supplemental decree from 40 to 14.2 second cubic feet. We need not speculate as to the theory upon which the court was guided in its ruling, for the defendants are not complaining. Although the pleadings do not allege abandonment, it would seem from the statements made by the court in its opinion, that because of the uncertainty as to plaintiffs’ theory, permission was given to them to introduce evidence tending to show either abandonment by the defendants of their priority, or some portion thereof, or that defendants had not, within a reasonable time after the rendition of the alleged conditional decree, made beneficial application of any portion of their decreed inchoate priority. The plaintiffs did not avail themselves of this privilege which the court, in granting, said was given so that further litigation might be avoided. Apparently, however, though plaintiffs declined to produce evidence, the court scaled down defendants’ appropriation because of their admission of non-use of a portion thereof, though abandonment was not explicitly pleaded. It is doubtful, had defendants made proper objections and assigned cross-errors, if the pleadings would justify this reduction. The record is in a most unsatisfactory condition, and it is difficult to determine just what theory either the parties or the court had of the different questions which have been argued in the briefs.
Mr. Chief Justice Teller and Mr. Justice Sheafor concur.