47 Colo. 335 | Colo. | 1910
delivered the opinion of the court:
This is an action to restrain .defendant from threatened harmful interference with certain reservoirs and water rights claimed by plaintiff, and to recover damages for the injuries which past interference has already inflicted. Upon final hearing the court, having found that the water rights and reservoirs described in the complaint belong to plaintiff and that the injuries charged had been suffered and similar ones threatened by defendant, issued the permanent injunction prayed for. Defendant is here with his appeal.
The complaint alleges generally that plaintiff is the owner, holding title as trustee of an express trust —possessed, and entitled to possession, of certain
On this appeal many errors are assigned and many questions argued by counsel, gome are without merit and we pass them by. The first for discussion is the overruling of the general demurrer to the amended complaint, which defendant says was error. If we understand defendant’s argument, it is, since the complaint alleges that plaintiff’s title to the premises in controversy is held by him as trustee of an express trust, that pleading is fatally defective because it does not set out how and by whom the trust was created, or give the names of the beneficiaries. Authorities from other jurisdictions are cited to the point that where the trustee of an express trust sues, particularly where he is seeking to enforce a trust or change, in some way, its terms, he must allege explicitly the nature of his trust and disclose the name of his beneficiaries. "We do not think these
It is further contended that the complaint states only a legal cause of -action, one for the recovery of damages for a mere trespass to realty. The same contention is made also in connection with defendant’s demand for a jury trial, which the- court refused. ' Our resolution of it here will settle it there. While the complaint may he inartificially drawn, the cause of action pleaded is equitable in its nature, and the issues of law, as well as of fact, are triable by the court without a jury, subject, of course, to the discretion of the court to submit issues of fact to a jury, whose findings, however, would not be binding upon the conscience of the chancellor. — Hall v. Linn, 8 Colo. 264. The pending action is to restrain continued acts of trespass upon reservoirs and water rights. The- case made is one of equitable cognizance, as was expressly decided, under similar averments, in Saint v. Guerrerio, 17 Colo. 448, and in many other of our decisions. Whatever may he the rule in other. jurisdictions we- do- not pause to inquire, for the matter is too well settled here to admit of argument.
The objection that plaintiff’s demurrer to a de^f ense of the answer which set up, among other things, equitable estoppel, was erroneously sustained, is un
More than a year and a half after the answer was filed, and only two days before the day set for hearing, defendant filed an application for a continuance over the term, upon the grounds that the issues to be tried were legal and that the regular panel of jurors for the term had been dismissed, that new matters had recently been set up in an amended replication, because an important witness was absent, whose presence could not be secured, and upon the further ground that The Alta Mines Company, a
The chief contention of defendant is that plaintiff did not prove title or show grounds for equitable relief. It would serve no useful purpose to review the voluminous testimony. The trial court concisely
‘ ‘ The defendant does not claim that he has any interest whatever in the water rights or in the premises upon which the reservoirs of the plaintiff are situated.
“It is shown by the evidence in this case that the trespass complained of was committed, and the defendant attempts to avoid responsibility for such trespass by showing that The Alta Mines Company has some interest in the premises upon which the reservoirs of the plaintiff are situated and some interest in the water right claimed by the plaintiff, and further, that the water appropriated and claimed by the plaintiff and his grantors is far in excess of the requirements of plaintiff and his grantors for mining and milling purposes; and also that he is but one of the officers of the said The Alta Mines Company and transmitted the orders of said company to the employees.”
The court seemed to regard the evidence as not in serious conflict, and found all the issues of fact in plaintiff’s favor. The findings are specific that the legal title to the reservoirs and water rights described in the complaint is vested in plaintiff, that they were acquired as the result of a lawful appropriation of his grantors and are prior and superior to any alleged right which defendant claimed in his answer -and testimony was vested in his company; that defendant entirely failed to establish in his company any adverse rights to such, or any other, reservoirs or water rights. As stated by the trial court, defendant makes no claim whatever to any interest in plaintiff’s alleged reservoirs or water rights. The defense, which he sought, but failed, to prove, is that The Alta Mines Company, of which he was the resident manager, was their ownfer, or had superior
Defendant further contends that if any trespass or wrongful act was committed by him, or under his directions, it was but a single, and not a continuous, trespass, and therefore ought not to be enjoined. He further says that after the act was committed he practically removed his residence from the state and probably may not return to resume the active management of the affairs of the corporation whose interests he was endeavoring to protect. We do not perceive the force of the argument that such considerations as his removal from the state and the severing of his official relations to his company, should prevent the issuing of an injunction against him, when he committed the wrongful acts for which such relief is appropriate.
The general rule is that injunction will not lie
It may be that the insolvency of defendant was not shown sufficiently or at all; but this failure is not conclusive' against the right of plaintiff to injunctive relief. Defendant himself says practically that he is a nonresident and it is quite uniformly held that insolvency, while an additional ground for relief of this character, is not essential to the granting of such relief where money damages are inadequate, or the extent of the injury is not ascertainable, or the wrongful acts are destructive of the property. — High on Injunctions, § 717.
The objections to the rulings of the court on the evidence are not of sufficient importance to demand discussion. In no event were any of them preju