25 Colo. App. 568 | Colo. Ct. App. | 1914
It appears from the record that more than a half-century ago the Mining Ditch was constructed from a head-gate on Clear Creek, a natural stream, to the premises now owned by Thomas B. Stuart, plaintiff and plaintiff in error, in Jefferson County, Colorado, with a carrying capacity of 3% cubic feet of water per second of time, and that the owners of said ditch carried water there-through and put it to a beneficial use on said premises in washing a number of acres of gravel for placer gold. In 1883, The Wadsworth Ditch Company was incorporated as a mutual water company, for mining and irrigation purposes, with 96 shares of stock, taking over -and absorbing said Mining Ditch, or the greater part thereof, as the Wadsworth Ditch. The first appropriation of 3cubic feet from Clear Creek was adjudicated to the Wadsworth Ditch, as Priority No. 1 from Clear Creek, based upon said beneficial use, and the second appropriation of 9% cubic feet per second of time was decreed to said Wadsworth Ditch, as Priority No. 48. The ditch runs through the town of Arvada, in said coun
It might be a commendable act, if the ditch company were able, for it to make a gift of its easements in Graves Avenue to the town of Arvada and the county of Jefferson, but it is difficult to see why it should surrender a valuable open ditch to Davis, a private citizen, without compensation and accept a substituted buried pipe therefor, with the burden of maintaining the same and replacing it whenever necessary. If those gifts affected every stockholder to the same extent, then, by
If the officers of The Wadsworth Ditch Company, or a majority of its stockholders, may, without compensation, permit Davis to destroy that part of the open ditch' on his premises and substitute the same with an underground pipe line, which from its very nature is more expensive to maintain than the open ditch, without the beneficiary of the change assuming all obligations of substitution, maintenance and replacement, then we see no reason why such officers or majority stockholders might
There is no claim made in the answers filed by the defendants, or otherwise, that the substitution of the pipe line, the lowering of the grade of the road, and the cessation of returning the tail and waste waters to the natural stream from which they were taken through the premises of the plaintiff, as had been done for nearly a half-century, were for the benefit of the- ditch company or any stockholder thereof, except Davis, who had neither a legal nor equitable right to such a recognition if the changes or any of them injuriously affected the vested rights of the company or any of its other stockholders.
The evidence clearly shows that the Mining Ditch had been built across Graves Avenue to and upon the land now owned by Stuart and its waters carried there-through and applied to a beneficial use in washing a number of acres of gravel on the premises for placer gold, long before said avenue was established, and that, by reason of -said application of the “waters to such a beneficial use, The Wadsworth Ditch Company obtained a decree for 3y2 cubic feet of water per second, as Priority No. 1 from Clear Creek. Defendants claim in their answers that the Wadsworth Ditch terminates at the east boundary line of the Davis tract, and does not even réach the premises of Stuart. We are unable to see how The Wadsworth Ditch Company could legally secure á decree for said priority based upon said application of water on the Stuart premises, unless the company owned the ditch leading to the point of use, and we know of no authority of the officers or a majority of the stockholders to abandon that part of the ditch that carried said 3y2 cubic feet of water per second across the plaintiff’s premises to the place of use without his consent. — Candelaria et al. v. Vallejos et al., 13 N. M., 146, 81 Pac., 589; The Cache La Poudre Irrigating Co. v. The Larimer & Weld Reservoir Co., 25 Colo., 144, 53 Pac., 318, 71 Am. St., 123.
The trial court held that it could not render judgment against the ditch company and the county together. It might have rendered separate judgments against each'. However, the question thus passed upon by the trial court was not raised by either demurrer or answer. Section 50, Mills’ Annotated Code, provides that the defendant -may demur for the reason that there is a defect or misjoinder of parties plaintiff or defendant, or that several causes of action have been improperly united, or for divers other reasons. Section 51 provides that the demurrer shall state the specific grounds therefor; and section 52 requires the demurrer to be disposed of before any other pleading in the same cause of action shall be filed, or it will be deemed to have been waived. In this case, all of the defendants introduced their answers with a general demurrer to the effect that the petition does iiot state facts sufficient to. constitute a cause of actioh, and is ambiguous, uncertain and unintelligible. They then continued, without even paragraphing, except in that of the Hamiltons, with general and special answers, with no apparent intention of immediate hearing on the demurrers. Under the practice in this jurisdiction, such combined demurrers and answers are not. authorized by the Code, and such preliminary demurrer by the very words of the Code is waived by the answer, and is such a blemish on the pleading that it should be stricken upon suggestion. A demurrer because the complaint does not state facts sufficient to ’constitute a cause of aption or for want of jurisdiction may be raised at any time, probably ore tenus, and it simply burdens the record by making it precede the answer in the same pleading, and should be discouraged. Defect or misjoinder of parties is waived by pleading and going to trial without objection. — Miller, etc., v. Blake, 6 Colo., 118-119.
Under the pleadings in this case, the waivers above mentioned and the evidence taken, we feel that we are authorized to and should declare the, rights of the parties, as none of them have disclaimed interest or attempted to avoid a trial upon the issues made, but, instead, all have encouraged the trial by actively joining therein without objection.
We find under the complaint and evidence introduced that the plaintiff had a vested right in the maintenance of the Wadsworth Ditch across the premises of the defendant Davis, 'and to maintain his headgates or delivery boxes so as to irrigate his lands substantially as irrigated by him prior to the destruction thereof by said A. L. Davis, and that said Davis had neither a legal nor an equitable right, as against the plaintiff, to destroy said headgates or said ditch, or to substitute a buried pipe therefor, without providing for plaintiff other adequate and satisfactory means for receiving his water from said carrier so that his lands could be advantageously irrigated as prior to said change, or complying with the terms as contained in the proposed agreement .submitted by the plaintiff, or without his consent or acquiescence after having full knowledge of the facts.— Gregory v. Nelson, 41 Cal., 278; Johnston v. Hyde, 32 N. J. Eq., 455; Dickenson v. Canal Co., 15 Bev., 260; Allen v. San Jose Water Co., 92 Cal., 138, 28 Pac., 215, 15 L. R. A., 93.
Neither had The Wadsworth Ditch Company a right
We further find that The Wadsworth Ditch Company is bounden by its trust to deliver to the plaintiff his full proportion of water with practically as little expense and inconvenience to him as would have been necessary if the changes complained of had not been made, and that no enhanced cost of delivery nor any increased burdens of cleaning, maintaining or replacing any substitute that may or might have been made for the open ditch, can legally be placed upon him without his consent; that the county of.Jefferson or the town of Arvada has no right, legally or equitably, to disturb or destroy any vested rights the plaintiff may have enjoyed for his flumes or means of conducting his waters across Graves Avenue, without his consent or without proper condemnation and just compensation; nor had The Wadsworth Ditch Company any right or authority to consent to or permit a disturbance of the plaintiff’s easements or flumes in or across said Graves Avenue.
The trial court erred in dismissing the action against the defendants A. L. Davis, The Wadsworth Ditch Company, and The Board of County Commissioners of the County of Jefferson. There seems to be no cause of action against the other defendants named in the com
The judgment of the trial court in dismissing the action as against said defendants A. L. Davis, The Wads-worth Ditch Company and The Board of County Commissioners of the County of Jefferson is reversed, set aside and held for naught, and the case is hereby remanded with directions to the trial court to exercise a liberal discretion in permitting the pleadings to be amended, if desired, bringing in the town of Arvada as a party defendant, and securing a full trial on the merits, permitting the use of the evidence taken in the former hearing; and it is hereby ordered that the costs legally assessable on this appeal be taxed against said defendants A. L. Davis, The Wadsworth Ditch Company and The Board of County Commissioners of the County of Jefferson, except such costs as may have been added by reason of those defendants against whom the dismissal is sustained being made parties.
Reversed.