7 Colo. App. 437 | Colo. Ct. App. | 1896
delivered the opinion of the court.
In the year 1883 Mr. Craig and Mr. Johnson were the owners of a ditch taking its supply of water from the North Fork of the South Arkansas river, in Chaffee county. Mr. Johnson afterwards abandoned the land upon which he used the water, and it reverted to the United States, leaving Mr. Craig in the sole possession of the ditch. Craig’s title was purchased by W. H. Allen. In 1888 D. P; Owen, Samuel Groover, Wesley King, B. J. King, Wilford King and George Curtis, occupants of land which could be irrigated from the ditch, in pursuance of an agreement with Mr. Allen, enlarged the ditch, and received interests therein as follows: Owen one fifth, Groover one fifth, Curtis one fifth, and the three
The complaint set forth the respective rights of Allen and the Kings in the ditch, and in the water flowing through it, the conveyance to the plaintiff Putnam of their lands, and their ditch interests and water rights, and averred that during the irrigating season of 1893 his tenant was violently prevented from taking water from the ditch by the defendants, who threatened a continuance of their acts, so that the plaintiff was and would be unable to raise a crop on his land. The prayer was for a decree establishing the plaintiff’s right to an interest of two fifths in the ditch, and in the water which it carried, and for an injunction restraining the defendants from depriving him of the use of the water. The answer of Curtis and Finley, after denying the plaintiff’s title, set up the decree in the priority proceeding, averring that in that proceeding the same cause of action involved in this suit was adjudicated and determined by awarding to the defendants the entire ditch and all its water, and alleging that whatever rights the plaintiff or his grantors may have had were lost by abandonment. The Rollins- Investment Company disclaimed, averring that it had conveyed its entire interest to Caroline Lovejoy. The plaintiff’s replication admitted the conveyance, and it was thereupon stipulated that neither the company nor its grantee had done any act in denial of the plaintiff’s rights. Upon the hearing the court found the issues against the plaintiff, and dismissed
None of the defendants is represented here. A brief has been filed by John S.'Mosby, Jr., Esq., as attorney for one J. Trefethan, who is said to have succeeded to the interest of Owen pending the suit. The record shows Finley to be the owner of the Owen title. No mention is anywhere made of Trefethan, and he is a stranger to the case; but Mr. Mosby’s argument is the only one in opposition to the claim of the plaintiff that has been presented, and we shall regard him as appearing amicus curice, and give his argument due consideration. There is no material conflict in the evidence, and the question is whether upon the undisputed facts the judgment is right.
The answer sets up the former decree as an adjudication of the questions involved in this suit, and by which the plaintiff is barred. In other words, it is claimed that by reason of that decree this cause of action is res adjudicata. The further defense is that whatever rights the plaintiff or his grantors may have had have been extinguished by abandonment. Mr. Mosby does not insist that the decree determined the rights of the owners of the Hoosier ditch as among themselves, although he refuses to concede that it did not, but he urges the failure of the plaintiff’s grantors to appear and claim their rights in that proceeding as a fact tending to prove an abandonment. That decree was not and could not be an adjudication of any right or claim of the plaintiff’s grantors, as between them and the other owners of the same ditch. It does not purport to determine what persons owned the ditch, or what their respective interests in it, or the water which it carried, were; but if the court had, in that proceeding, undertaken to adjust the rights and proportionate interests of the several claimants of the ditch, as against each other, its judgment would have been to that extent a nullity. The proceeding in which the decree was rendered was a special one, provided by the statute for the sole purpose of ascertaining and adjudicating the
The nonappearanee of the plaintiff’s grantors in the proceeding is not evidence of an abandonment of any right which they had previously possessed. The statute requires notice to be given to all persons interested as owners in any ditch, canal or reservoir, to appear and file a statement of claim under oath, showing the ditch, canal or reservoir, or two or more such, in which he, she or they claim an interest. Mr. Mosby refers us to this provision and argues from it that the failure of the parties to appear in obedience to the requirements of the notice indicates their intention to abandon their claims. We are unable to appreciate his logic. If all the owners of the ditch had absented themselves from the adjudication, and there had been no statement filed showing their ditch, no evidence would have been heard in their behalf, and no priority would have been awarded to it; and if the other ditches to which priorities were given exhausted all the available water, theirs would have been dry and useless ; but their rights in the ditch and in any water which it might obtain, as between themselves, would not have been affected. But the statute further provides that the statement required may be made by any one of the owners, for and in behalf of a}l; and accordingly we find that the statement in behalf of the Hoosier ditch was made by the defendant Curtis, in which he set forth that it was owned in common by himself one fifth, two others one fifth each, and others two fifths. Every share in the ditch was represented in his statement, and the court seems to have regarded it as suffi
Whether an act of a party constitutes an abandonment of property previously occupied by him depends entirely upon the intention with which it is done. . An abandonment of property held by possessory title takes place instantly when the occupant deserts it without an intention of ever reclaiming it for himself, and careless of what may thereafter become of it. A single act may be of such character, and done in such manner, and under such circumstances, that an intention to abandon may be inferred from it. But mere absence from, and nonuser of, the property, do not prove an intention to abandon, although conduct of that kind may continue unexplained for such length of time as not to be consistent with any other hypothesis. Derry v. Ross, 5 Colo. 295 ; Sieber v. Frink, 7 Colo. 148 ; Richardson v. McNulty, 24 Cal. 339 ; Judson v. Malloy, 40 Cal. 299 ; Mallett v. Uncle Sam Mining Co., 1 Nev. 186.
It devolves upon the party alleging an abandonment, and setting up a claim in virtue of it, to establish the facts from which it may be deduced. Oreamuno v. Uncle Sam Mining Co., 1 Nev. 215.
We shall now briefly examine the evidence which is specially relied upon to prove that the water rights in question were abandoned. First. Curtis and the Kings paid no part of the expenses of the proceeding in which the ditch priorities were adjudicated. Whether this fact would, under any circumstances, even have a tendency towards proving an abandonment, we shall not inquire. There is no evidence that there was any expense in the proceeding chargeable against the Hoosier ditch. By the terms of the statute, all the expenses are payable by the county or counties in which the water district lies, except the fees of witnesses, which must be paid by the parties calling them. It does not ap
In the entire record there is nothing to indicate an intention of abandonment, either on the part of the plaintiff, or those to whose title he succeeded. Indeed, the opposite intention affirmatively and abundantly appears. Upon the case made by this record the plaintiff was entitled to the relief prayed, and the court erred in denying it. The judgment must be reversed.
Reversed.