49 Colo. 574 | Colo. | 1911
delivered the opinion of the court :
1. The district court exceeded its authority in entering an injunction in said final judgment and in making said subsequent orders. No jurisdiction attached in the eminent domain proceeding to do these things, and the proceeding in that regard was coram non judice. ' The order and judgment of commitment for contempt are void. No one can be punished for contempt for violating an injunction granted without jurisdiction.—Newman v. Bullock, 23 Colo. 217; Tebbetts v. People, 31 Colo. 467; Smith v. The People, 2 Col. App. 99.
2. Eminent domain proceedings are sui generis.—Knoth v. Barclay, 8 Colo. 300. After the regularity of the proceeding and the necessity for the taking have been settled, the commission or a jury must find: First, An accurate description of the land taken; Second, The value of the land or property actually taken; Third, The damages, if any, to the residue of such land or property; and, Fourth,The
3. But it is said the judgment of the lower court in the main suit was affirmed as a whole by the supreme court, therefore the injunction stands. The only thing decided by the supreme court was, that petitioner had a right to condemn a strip of land for a right of way for her irrigating ditch from the end of the Epperson lateral to her land. The court expressly stated that injunction was not an issue embraced in the record in that case. It said:
“The fifth reason assigned as to why this judgment should be reversed, is that there is a misjoinder of the causes of action, because a statutory action to condemn, and a bill for injunction to restrain an alleged diversion of water, may not be joined. We have searched the petition in vain for an allegation concerning a diversion of water prejudicial to defendant’s rights, and also for a suggestion requiring injunctive relief, and are unable to learn from an inspection of the petition how counsel arrived at the conclusion that the action was brought for such purpose, or for any purpose .other than the condemning of the strip of land.”—Schneider v. Schneider, 36 Colo. 523.
The supreme court did not recognize any such thing as injunction in the case.
4. The lower court had no jurisdiction over the subject-matter or things in the eminent domain proceeding which are the basis of this contempt. The court attempted, in that proceeding, to quiet petitioner’s title to said waste water; to determine its right to be carried through the Epperson lateral; to regulate the headgate and management of said lateral and to compel its operation in such a manner that it
Reversed, with directions to the lower court to dismiss the contempt proceeding at the cost of the defendant in error. Reversed.
Chief Justice Campbell and Mr. Justice Mus-, ser concur. _■
