32 Colo. 114 | Colo. | 1904
delivered the opinion of the court.
In 1860 the Golden canal was constructed to divert the water of Clear Creek with which to irrigate agricultural lands. In 1872 the structure was enlarged to carry an additional supply. In 1884, in
The plaintiffs are consumers of water, which they had utilized through the medium of the Golden canal before its purchase by the defendant company. From the allegations of the complaint it is not certain whether plaintiffs claim any part of the first priority of 1860, but the averments assert a priority not later than the year 1872, though there is uncertainty both in statement and proof as to the origin of their rights. The complaint alleges that after the defendant company acquired the canal it enlarged the same at different times, and by divers methods obtained, or claimed to have secured, for carriage therein a large quantity of water in addition to that represented by its first two priorities, and in times of scarcity, and when the water commissioner has cut out the later appropriations, that, entirely disregarding their priority, it has compelled, and threatens hereafter to compel, the plaintiffs to pro-rate the water of the first two appropriations, in which they are owners, with its stockholders whose rights attached not earlier than the spring of 1886, at the time of the second enlargement of the canal, and which are not traceable at all to either of the earlier appropriations.
The plaintiffs own about 870, out of about 7,000 or 8,000 cubic inches of water per second of time' belonging to the first two priorities, but they say they sue in behalf of themselves and all others simi
The complaint, the substance of which, so far as the questions to be determined on this appeal are concerned, has been above summarized, was attacked by a motion containing several grounds which was in part sustained and partly overruled-. The defendants then interposed a demurrer, containing about all of the grounds enumerated in the code of civil procedure, and when this demurrer was overruled, they filed an answer substantially denying the material allegations of the complaint, and containing a number of special defenses, such as estoppel, laches, the statute of limitations, acquiescence in the prorating complained of, and waiver.
Upon the trial before the court the issues of fact were found in favor of plaintiffs, and a decree rendered which, among other things, enjoined the defendant company during a shortage of water from compelling plaintiffs to pro-rate the water of the first two priorities to which they are entitled with its stockholders who became users of water subsequent to January 11, 1886.
It will be observed from the foregoing statement that the controversy is not one between different ditches, but between consumers of water from the same ditch. In Farmers’ High Line, etc., Co.v.Southworth, 13 Colo. 111, a similar case was considered, in which each of the three members of the court, as then
In Nichols v. McIntosh, 19 Colo. 22, it was said that a majority of the court'in the Southworth ease held that appropriations of water by the consumers who received the same through the same ditch do not necessarily relate to the same time, but, on the contrary, such consumers may have different priorities of right. In Ditch Co. v. Ditch Co., 22 Colo. 513, 521, this court, speaking through Chief Justice Hayt, in summarizing certain doctrines that had been theretofore established, and which were supposed to have some bearing upon the issues then under consideration — though such statement, as well as a similar one in the Nichols case, may have been obiter — said that appropriators of water from the same stream
A number of objections to the decree and to the various proceedings below have been argued, with many of which we are not at present concerned. We are of opinion that the decree cannot stand upon several grounds which we will presently proceed to consider. First, however, it is to he observed that vehement declamation and estreme and indiscriminate criticism of the rulings of the trial court are not helpful to, nor do they specially commend themselves to the consideration of, an appellate tribunal, unless grounded upon a more solid foundation than appears in the present case. Some of the objections of counsel for plaintiffs in error, however, are good, and these we now take up.
1. The evidence of plaintiffs ’ witnesses does not furnish sufficient definite data on which to predicate a favorable decree in a 'matter of such importance. Just what quantity of water belongs to the respective priorities which have been awarded to the canal and the foundation of the alleged priorities of plaintiffs, may inferentially appear, but we have searched the
It is undoubtedly true that defendant company did acquire some water of the first and second priorities which it might supply to its stockholders, whose rights are at least equal to the rights of plaintiffs. Upon what evidence the court made its decree, apparently not considering, certainly ignoring and not sufficiently protecting, such rights, we are unable to conjecture, for we do not find any sufficient evidence of the facts upon which only ought an enforceable
As plaintiffs do not question the right of 'the defendant company to compel consumers similarly situated to pro-rate with each other as to the water of the first and second priorities, they assert that it is a matter of no concern to it when plaintiffs ’ rights attached, provided only they became vested before its acquisition of the canal. This may, or may not, be true; yet it would be a harsh doctrine to say that if plaintiffs’ rights attached only a few months or a year or two before the alleged enlargement of the canal in 1885 or 1886, they might not be compelled to pro-rate with those water consumers whose rights attached within a short and reasonable time thereafter. And so we are of opinion that such an important adjudication should not be made upon the indefinite and insufficient data which the record presents, but that plaintiffs should lay before the court, in full detail, the facts concerning their priorities, the dates when they attached, the amount of water they are entitled to receive, and the same data with respect to rights of defendants which are said to be inferior, so that the court may frame an intelligent and workable decree settling the rights of all parties claiming service from the carrier.
2. In Brown v. Canal Co., supra, which m all substantial respects presents the same issues as the
In the view of these considerations, it was so palpably erroneous for the trial court, against defendants’ objections, to proceed to a decree without the presence of indispensably necessary parties that, for this mistake alone, the decree must be reversed. Their interests as consumers are manifestly affected. An attempt has been made to pass upon valuable rights and deprive parties thereof without an oppor
3. It is the practice for the prevailing party to draft a decree to be presented to the court for approval, and according to the statement made upon oral árgument plaintiffs, as the successful parties, prepared the decree which. the court afterwards signed. If there are defects in it, the plaintiffs are, in a measure at least, responsible for them. Their request, therefore, that, if this court should consider the decree defective or not sufficiently definite, it wade through the record and make a good decree, does not appeal to us with much force.
That the decree is indefinite, we think is manifestly true. Indeed, plaintiffs themselves suggest as an excuse therefor the novelty of the controversy and the lack of precedent. One of its provisions, wherein we think it radically defective, is that it enjoins the defendant company from compelling plaintiffs to prorate with any of the stockholders who became for the first time users and consumers of water from the ditch subsequent to the enlargement of 1886. This would seem to indicate that there may be some stockholders whose rights accrued prior to that date, but there is no finding or statement in the decree who such stock
In view of the fact that the decree reserved to the plaintiffs the right to have the cause redocketed for the purpose of having such further action taken as was necessary and proper for its enforcement, and for the protection of any rights of the parties, such insufficiencies entail upon defendant company the necessity for ascertaining, at its peril, who such stockholders are, and thus impose a burden and hardship from which a properly drawn decree should exempt it. A party ought not to be thus enjoined without some provision in the decree to guide him.
As the case must be reversed, a few additional .general remarks may be appropriate. Plaintiffs in •error vigorously assert that the court made a. number •of erroneous rulings in the admission and rejection •of testimony. It would be futile to consider them in detail, but in general it may be said that it does ■appear from the abstract of the record that the court refused to permit defendants to introduce evidence •of the same character as that admitted in behalf of plaintiffs. It is difficult to understand why defendants should be restricted from negativing plaintiffs’ evidence upon any controverted issue. If the evidence which the court, over defendants’ objections, permitted the plaintiffs to produce was máterial and •competent, certainly similar negative evidence in behalf of the defendants should have come in. Some latitude in admitting and rejecting evidence is allowed where the ease is tried by the court; and the presumption is sometimes indulged that if the court had admitted improper evidence, the same will be dis
Objection seems not to have been made that there was a defect of parties plaintiff. In view of another trial, we are of opinion that all the water consumers similarly situated with the plaintiffs should be joined as plaintiffs, but if their consent thereto cannot be had, they should be joined as defendants, so that in one action there will be had an adjudication which settles the rights of all the water consumers from this canal. The records of this court show that disputes between these stockholders and water consumers have been prolific of litigation, and possibly have already consumed a disproportionate share of the court’s time. This multiplicity of suits has been due, in part at least, to the failure strictly to enforce the rules of established practice requiring the presence in one proceeding of all those whose rights to the use of water from the same ditch are involved. We repeat that the court should require the production of evidence showing in detail and fully the respective rights of all water consumers, when the priority of each consumer, or class of consumers, attached, with the quantity of water belonging to each. We are led to these observations'by the fact that in the decree it seems to be taken for granted that those who became consumers after 1886 necessarily have no rights of an earlier date. It may be true, but it does not necessarily follow, that some particular stockholder or water consumer who himself began to utilize the water later than 1886 has no rights of an earlier date, but this is not a necessary conclusion. For aught that’appears from this record it may be true — indeed, we think the record shows it to be true — that the rights of some such go back as far as 1860, or 1872, the respective
In reaching our conclusion, we have gone upon the assumption that the evidence in behalf of plaintiffs upon the main question is not controverted. What the facts may be when the case is tried as it. should be, we do not anticipate, as of course we could not, in justice to the rights of the respective parties. We intimate no opinion as to the special defenses, such as estoppel, statute of limitations and laches, if for no other reason because the defects in plaintiffs’ proof equally apply to the defendants’.
The decree is reversed and the cause is remanded.
Reversed.