32 Colo. 420 | Colo. | 1904
delivered the opinion of the court.
The subject-matter of the controversy is a water right for irrigation purposes. The action is equitable in its nature. The complaint has some of the characteristics of a bill to quiet title, and some of the features of a suit to prevent a disturbance or obstruction of a right to use the water for irrigation and to require a transfer of its place of use. The complaint when filed, named as defendants the Town of Montclair and The Northern Colorado Irrigation Company. It contained two causes of action, the allegations of the first of which were directed particularly .against the town, those of the second against the irrigation company. In the first are averments that
A motion by the defendants for a more specific statement was denied, and they then filed a joint demurrer to each cause of action containing a number of grounds, among which are an improper joinder of parties defendant. The demurrer was overruled as to the first cause of action, and sustained as to the second, whereupon the plaintiff voluntarily dismissed the action as to the irrigation company. The town then filed an answer to the first cause of action, which was the- only part of the complaint left for consideration, and this answer contained a number of defenses, the first of which is a general denial. The other defenses, so far as material to state here, consist of allegations of fact which, in the judgment, of defendant, vested in it an interest and estate in the property superior and paramount to the title of the' plain!
The trial was to the court without a jury upon the issues thus joined, and at the close of plaintiff’s case defendant, declining to introduce any evidence, made a motion for a nonsuit, which was granted by the court, upon the grounds, as stated in its opinion, that the proof did not show that plaintiff was in possession of the water right at the time of the beginning of the action, and that plaintiff took nothing by its deed purporting to convey the same. From the judgment the plaintiff prosecutes this appeal.
It seems that the district judge who heard the demurrer believed that plaintiff was entitled to equitable relief upon the facts set up, though the subject-matter of the action was an incorporeal water right. A different judge presided at the trial, and he was inclined to the opinion that the action was brought under section 255 of the code, which empowers one in possession of real property to bring in a party who asserts a hostile title, and require him to set it up, so that the title may be determined. It was his opinion,' therefore, because one cannot be in actual physical possession of a mere easement, which a water right is, an action to quiet title thereto does not lie. But under the practice that prevails in the second judicial district, which is composed of more than one judge, he felt bound by the decision of his predecessor to the contrary. That question is not much mooted in argument here, but it seems that in Grand Valley Irr. Co. v. Lesher, 28 Colo. 273, the title to a water right was quieted. In Wyatt v. Irrigation Co., 18 Colo. 298, a water right, such as we are considering, was held to be an easement, and an incorporeal hereditament descendible by inheritance, and a freehold estate. It therefore comes within the meaning of the term real property, as used in our
But if this is an action merely to quiet title to an easement, the objection to its maintenance can be waived by a defendant, or he might elect to stand, by a demurrer based upon that ground. Here the defendant did not choose to stand by its demurrer, but in its answer set up an estate and title to this water right in itself, and asked to have the same quieted in its favor in this very action. Its objection to the form of the action, therefore, was waived, even if the point was originally good.
The written instruments evidencing the plaintiff’s'title which were introduced in evidence, show that the legal title of the water right was vested in the • plaintiff at the time of the beginning of the action}
But whether plaintiff has shown the kind of possession necessary under section 255 of the code, in an action merely to quiet title, we do not consider-important for reasons above given in discussing the form and real character of the action. If plaintiff was out of possession, ejectment did not lie to recover it, certainly if the easement is considered by itself wholly apart from land upon which the water was used. But whether in or out, plaintiff certainly can obtain appropriate relief in a court of equity against any unlawful obstruction of his rights to the enjoyment of the easement. The evidence shows legal title in plaintiff. Prom that flows the right to whatever possession the nature of the right is susceptible of, and to its free use and enjoyment. The allegations of the complaint are broad enough to admit the evidence offered, ■ and that evidence, not overcome by any contradictory proof, entitles plaintiff to a decree establishing its title to the water right and restraining interference with its use.
The trial court was of opinion that the clause in the written contract between the irrigation company and its grantee restricting the use of this water to a certain tract of land, and providing that it could not be used to irrigate any other land, of itself operated as a limitation upon the power of the grantee or his assigns to transfer the water right separate and distinct from the land itself; and apparently held - that the owner of the land, upon which-the'water, was thus to be used, owned the water right as . an .inseparable!
It is not necessary in this case to determine whether, as between the water consumer and the carrier of water, such a restriction is binding, for it is clear that the defendant, who is a stranger to the title and to the contract, and, so far as appears from the testimony, in no wise connected with, or having obtained rights from, the irrigation company, is not in a position to interpose such objection. The restriction relates to the place and manner of use, and is one which might be waived by the grantor. That the evidence shows that plaintiff has not paid the rental, and that the irrigation company has declined at plaintiff’s request to transfer the place of use, is not material here, for defendant cannot interpose a defense which is available only to the irrigation company or its grantee. It is sufficient for our present purpose to say that the plaintiff, by showing in itself the legal title to the water right, was entitled to its use, and was in as complete possession thereof as the nature and character of the property admits, and that, as between the parties to this action, its rights, as disclosed by the evidence, are superior to defendant’s. What the proof may be when defendant’s evidence is heard, we do not know. The trial court was wrong, however, in granting the motion for non-suit, as at least a prima facie case was made by plaintiff.
The point is made by the town that the irrigation company is a necessary party to the suit. One
Our conclusion that the defendant cannot raise questions that might be open to the irrigation;company in a controversy between it and the plaintiff, relieves us of the necessity of considering certain legal questions argued by counsel touching the nature of a water right and appurtenant easements, and
The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views expressed in this opinion.
Reversed.