22 Colo. App. 563 | Colo. Ct. App. | 1912
delivered tlie opinion of tlie court.
The appellee as plaintiff brought his suit in the district court in and for the City and County of
The complaint alleged that defendant was a Colorado corporation engaged in carrying water for irrigation to the premises of consumers along the ditch known as The ITighline Canal, which was owned and operated by the defendant; that defendant was a common or quasi-common carrier of water, for hire, for irrigation purposes, and that as such, and for a reasonable consideration, it was bound to carry water from the South Platte river, and deliver the same to those entitled to make beneficial use thereof for irrigating lands under the canal; that plaintiff was the owner of a certain 40-acre tract of land under said canal, in Adams County, through which county the canal passed; that such land was arid, required irrigation, and had been irrigated from said canal since the year 1886; that defendant, as carrier, and for an annual compensation paid to it by plaintiff or his grantors, had furnished water for said land continuously from 1886 until the year 1904; that by reason of such use of the water by plaintiff and his grantors, plaintiff had and owned a water-right for said land by which defendant was required to furnish a sufficient quantity of water out of the said canal, when the same could be obtained, to irrigate said land, and that neither plaintiff nor his grantors had sold, forfeited or abandoned said water-right, or lost it by process of law, or otherwise, or “ceased to take water from said canal with the purpose or intent of procuring
The answer denied that defendant was a common carrier for hire, or that it had no ownership or
The foregoing states substantially the issues as made by the pleadings, so far as necessary to be stated.
The evidence upon the part of plaintiff showed that he purchased the land from Mary Giesler, his deed being dated May 19th, 1897, by which she conveyed to him one-half section o'f land, including the forty acres described in the complaint, “together
During the progress of the trial plaintiff offered in evidence the files, orders, judgment, etc., in the mandamus proceedings, for the purpose of showing that certain issues in the instant case, to wit, the right of plaintiff to receive and the duty of defendant to deliver water for the years 1904 and 1905, were res judicata in favor of the plaintiff. Objection made by the defendant to the reception of these
Defendant offered no testimony with the exception of a certain contract or water deed, which was offered upon and as a part of the cross-examination of the plaintiff, and received by the court over plaintiff’s objection.
The briefs filed by counsel for appellant present ..an interesting, able and elaborate discussion of all the objections raised by the assignments of errors, including questions pertaining to the character of the defendant as a carrier, the status of the holders of its contracts or deeds for water-rights, and their assigns, and the duty of such carrier to convey and deliver water to consumers, such as the plaintiff, at the rate fixed-by the board of county commissioners. The argument is a protest against the law pertaining to such carriers as declared by the supreme court. Many of these questions seem to have been fully settled by decisions of that court, a number of which have been in cases to which the appellant herein was a party, and adversely to the contention of appellant’s counsel, and therefore need not be reconsidered at this time. For instance, there is no question that under the constitution, statutes and decisions, the defendant was required to carry and deliver water to the class of consumers -named in the certificate of its incorporation, whether, as a question of terminology, it may be called a common carrier, a quasi-common carrier or a quasi-public carrier; nor that this service must be performed for a reasonable maximum charge to be fixed by the board of county commissioners upon proper application, and that when such rate has been fixed, it is
The courts have not decided that a consumer of water, by contract with such carrier, may not so bind himself as to waive and lose his statutory and constitutional right to purchase water, irrespective of the contract, although there is a strong intimation to that effect in some of the authorities. The word "purchase” is used herein in the sense that it is held to have been used in the statute, namely, the right of the consumer to require the carrier to furnish the water upon payment of the 'proper charge for transportation.
(1) In oral argument counsel for appellant limited his discussion chiefly to the claim that the cause of action was based upon a tender by plaintiff of $1 per acre, the maximum rate fixed by the board of county commissioners, while the cause was tried upon the tender of $1.75 per acre, the rate demanded by the defendant, that said tender was not admissible in evidence because not pleaded, and that it constituted a variance; and to the further contention
(2) The most serious question raised by the assignments of errors and discussed by appellant, is, that plaintiff could have saved himself from any substantial damage by paying to the defendant an additional sum of money to that tendered, amounting to not more than $60 for the two years during which plaintiff’s alleged loss was sustained, and therefore the judgment should not be affirmed. There is no rule of law better established than that which declares that in case an injured party seeks to recover damages from another, and such party, by some reasonable act on his part, might have lessened or prevented the loss for which he seeks to hold the other, the law requires the performance of that act. This rule is expressed in 1 Sutherland on Damages, sec. 88, 3rd ed., as follows: “The law imposes upon a party injured by another’s breach of contract or tort the active duty of using all ordinary care and making all reasonable exertions to render the injury
(3) It does not appear that the order made by the board of county commissioners of Adams county, fixing the maximum rate, was void, as contended by appellant, for uncertainty in prescribing the amount of water which the defendant should be required to furnish an applicant, nor that the-demand made by plaintiff was not in compliance with such order. Section 2297 Mills’ Ann. Stats, provides that any person who shall have purchased and used water for irrigation, for lands occupied by him, from any ditch or reservoir, and shall not have ceased to do so for the purpose and with intent to procure water from some other source of supply, shall have a right to continue to purchase water to the same amount for his lands', on paying or tendering the price thereof fixed by the county commissioners. It is shown that under the contract, by the
(1) It is urged by defendant that plaintiff could not abandon the contract under which he and his grantor had been receiving water for so long a period, and require the defendant to continue to furnish water irrespective of that contract. The contract was not pleaded as a defense, but it was admitted in evidence upon and as a part of plaintiff’s cross-examination, and its force and effect discussed both by appellant and appellee. There is nothing in its terms which specifically requires the grantee therein of the “right to receive and use water from the canal of the said party of the first part”, to continue to exercise such right for any definite period of years, or which forbids an abandonment of the contractual rights by the grantee at any time thereafter. And the provision in said contract that upon a forfeiture, by the grantee, of his rights and interests through failure to pay the annual rentals, said erantee shall surrender all riedits or interests there
It is earnestly contended that the admission in evidence of the pleadings, orders and other proceedings in the mandamus suits, was error, because there was no proper plea of res judicata to support the admission of this evidence for that purpose. The proceedings for, and the issuance of the writs were admitted by the pleadings. The files and orders were offered and received for the purpose of showing that the parties thereto were the same as in the present case, and that one of the issues in that proceeding was the same as raised in the instant case, to wit, the right of plaintiff to demand and receive
Other objections raised by the assignments of errors do not require special consideration. The judgment is affirmed.