47 Colo. 490 | Colo. | 1910
delivered the opinion of the court :
This is an action of mandamus to compel defendant to carry in its canal and deliver to plaintiffs water for irrigating their agricultural lands. To the judgment awarding the peremptory writ defendant prosecutes error. As the application was on notice, the alternative writ of mandamus was not granted, and upon final hearing the peremptory writ issued in
The trial court on final hearing found the issues for plaintiffs, that the contract pleaded was null and void, and that the charge for carriage is that fixed by the board of county commissioners, and thereupon granted the peremptory writ commanding defendant to carry and deliver during the season of 1905 the respective designated quantities of water to the different plaintiffs upon the payment, or tender of payment, of the rate of $1.00 per acre.
Numerous questions are raised and argued by counsel which, in the view we take of the case, are not involved and should not be here decided. While it does appear by some of the averments and the prayer of the complaint that plaintiffs are asking a decree establishing in them a perpetual right to the use of water, these averments may properly be, and were below, treated as surplusage.—Townsend v. Fulton Irr. Ditch Co., 17 Colo. 142; Combs v. Agricultural Ditch Co., 17 Colo. 146; Agricultural Ditch Co. v. Rollins, 42 Colo. 267. That the trial court so regarded them is apparent from its writ, which limited the relief to the single irrigating season of 1905.
The mandate of the peremptory writ has, or has not, been performed. If it was performed by defendant, as stated by counsel for plaintiff at the oral argument and not denied, defendant is not in a position to have a decision, upon this review, of the questions litigated and determined below. If the writ was not complied with, even if defendant is entitled to a reversal of the judgment, any order as to the merits that could be made here would be either use
It was wrong also for the trial court, in fhi s action, to determine the rights of the parties under the contract pleaded. Its decision is therefore set aside on-that issue. As we have said, the. adjudica
Modified and affirmed.