24 Colo. App. 100 | Colo. Ct. App. | 1913
delivered the opinion of the court.
From a verdict and judgment in favor of the plaintiff in the sum of $1,225, the defendant appealed.
The first question presented by the assignments of errors is that the complaint does not state a cause of action. No separate demurrer was filed, but the sufficiency of the complaint was challenged by a clause incorporated in the answer, and the attention of the court was first called to it after the jury had-been empaneled and sworn to try the cause upon its merits. That practice has become customary in some sections of the state, but is not to be commended, either as to the manner of pleading or the delay in presenting, the issue of law. It is a custom “more honored in the breach than in the observance.” It is dilatory and savors of obstructive tactics rather than of an attempt to reach trial on the merits. The demurrer was overruled, and no objection on the ground of insufficiency of the complaint was made to the evidence offered. However fanlty it may be, we think the complaint, as aided by the answer, which to some extent cured its defects, may be sustained. It is alleged in substance that defendant, appellant here, is a mutual ditch company organized as a corporation under the laws of Colorado for the purpose of furnishing water
The defendant company, having been organized for the purpose of supplying water to its stockholders by means of a ditch and reservoir system, assumed and was charged.by law with the duty of exercising reasonable care and diligence in procuring and storing the water, keeping its storage reservoirs in repair and condition to retain the same, and making ratable distribution thereof; and if plaintiff’s land was so situated that it could be irrigated from certain reservoirs only, it was its duty, if practicable, by the exercise of reasonable care and dil
It is contended that the evidence is insufficient to support the verdict. It was admitted that defendant is a mutual ditch company, but is claimed that the evidence fails to show either wilful or negligent failure of defendant to perform any of its duties, and particularly that it failed to deliver to the plaintiff his full share of the water in proportion to his stock. The evidence on plaintiff’s part shows that early in May all the water was run from the two upper reservoirs, the only ones from which plaintiff could be supplied that year, into another situated below his land, and there held unused throughout the entire season while plaintiff’s crops were burning up with drought. Defendant’s evidence shows that the water was not being distributed in proportion to the stockholding, but to each stockholder what he might need while the water lasted; and it is further shown by one of its witnesses who farmed a large acreage that year
It is also contended that Instruction No. 5, given by the court, is erroneous. In that respect we agree with counsel, as there is no evidence on which to predicate the instruction; but it is manifestly favorable to the defendant, and not therefore prejudicial to if. Reversal may not be required unless appellant shows error, actually or presumptively prejudicial to it.—Harrison v. Hodges et al., 49 Colo., 105, 111 Pac., 706.
The judgment is affirmed.