45 Colo. 412 | Colo. | 1909
delivered the opinion of the court:
Plaintiffs are prior appropriators of water from Onion creek; defendants, subsequent appropriators of the waters of Lost creek,' both natural streams in Ouray county. Plaintiffs brought this action to restrain defendants from diverting water from Lost creek, upon the ground that it is a tributary of Onion creek. Defendants in their answer denied that Lost creek was a tributary of Onion creek, and, by their counter-claim or cross-complaint, set up prior rights to the waters of Lost creek, and sought to have plaintiffs enjoined from interfering therewith.
Before-the end of the .hearing, which was near the close of the term, a stipulation was entered into by the parties that if the court could not reach a conclusion and render judgment during term time, the same might thereafter be rendered and entered in vacation. Such a stipulation as to the pronouncing of a judgment is not binding upon this court, and would be disregarded even though both parties are willing to abide by it. However, its validity is not material here, because, on the la.st day of the.term, the court made oral findings of fact, and pronounced a judgment which was binding and in force from that .time, though it may not have been actually entered in the records by the clerk until after the lapse of the term.
The vital issue of fact was, whether Lost creek is a tributary- of Onion creek. If it is, plaintiffs should prevail. If it is not, they should fail. On this issue the court, on the last day of the term, found from all of the evidence in the case (and as appel
The point that the record cannot be contradicted on this review, and that the written findings and decree are presumed to have been duly made in term time, is not relevant or controlling. This is not a collateral, but a direct, attack on their validity, and when it appears, as it does here, that findings and a decree made by the judge in vacation, and not by the court in term time, were entered by the clerk, they will be set aside and held for naught. If both of the alleged decrees are the same, that fact will not aid defendants. The findings, as made by the court and orally announced on the last day of the term, will not support either of them. If some portion of the water of Lost creek naturally finds its way into Onion creek, and some into another channel, it was the duty of the court, from the evidence, to specify the respective quantities, and render a decree accordingly; but it was wrong to adjudge that plaintiffs had no right to water that comes into Onion creek. Considering the whole record, we are satisfied that an injustice has been done in the re
If a new trial is had, the evidence taken upon the former hearing may be used by the respective parties, with leave to produce other and additional evidence. In view of the range of the discussion in the briefs, we suggest that there is no insurmountable difficulty in determining the question of fact in this case by actual physical tests in the nature of those heretofore made under the order of the trial court. Appropriate instruction's, however, to those who may be selected by the "parties or by the court to make the tests, ought to be formulated, and such safeguards provided as will secure a thorough test and a conclusive result. Such experiments and tests should be made at such a season of the year, and for such a period of time, as to demonstrate whether the waters of Lost creek, or any part thereof, naturally flow into, or constitute the source of supply of, Onion creek. Judgment reversed.
Reversed and remanded.