Snowden v. Ft. Lyon Canal Co.

• Decision Date: 14 December 1916
• Docket Number: 4644.
• Citation: 238 F. 495
• Parties: SNOWDEN v. FT. LYON CANAL CO.
• Court: U.S. Court of Appeals — Eighth Circuit

238 F. 495

SNOWDEN v. FT. LYON CANAL CO.

No. 4644.

United States Court of Appeals, Eighth Circuit.

December 14, 1916

John Campbell, of Denver, Colo. (A. H. Felker and John T. Barnett both of Denver, Colo., on the brief), for plaintiff in error.

Henry A. Dubbs, of Denver, Colo. (Henry C. Vidal, of Denver, Colo on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and VAN VALKENBURGH District Judge.

CARLAND Circuit Judge.

The plaintiff, Snowden, a citizen of Pennsylvania, sued the defendant canal company, a Colorado corporation, and stated his cause of action as follows:

'(2) That the defendant has the authority, under and by virtue of the laws of the state of Colorado in such case made and provided, and upon compliance with the laws of said state, to exercise the right of eminent domain to acquire all the necessary privileges, easements, and rights of way for the purpose of constructing the ditches, canals, and reservoir hereinafter mentioned.

'(3) That said Howard Snowden is now, and at all times herein mentioned has been, the owner in fee and entitled to the possession of the following described tract or parcel of land, situate, lying, and being in the county of Bent and state of Colorado, and more particularly described as follows, to wit: The S.W. 1/4 of section 8 in township 21 south, range 52 west of the Sixth principal meridian; and that the said Howard Snowden is the only person interested in the said property as owner, or otherwise, as appears of record in the office of the clerk and recorder of Bent county, Colo.

'(4) That during the years 1910 and 1911, or thereabouts, the said defendant, by its agents, servants, and employes, without the knowledge or consent of the plaintiff herein, and without any right or authority so to do, wrongfully entered upon said land of the plaintiff herein, and constructed upon parts thereof hereinafter described a reservoir for the purpose of storage of water, and erected for that purpose a large dam of dirt and rock about 20 feet wide at the top and about 16 feet in height, and is making claim of a permanent occupation of said premises for the purpose herein mentioned.

'(5) That the defendant, for the purpose above mentioned, wrongfully appropriated for its own use, and took possession of and occupied, and now continues to so wrongfully appropriate and to so hold possession of and occupy, about 122.5 acres of land belonging to said Howard Snowden, lying in the said S.W. 1/4 of section 8, township 21 south, range 52 west of the Sixth principal meridian, and being more particularly described as follows, to wit: Beginning S.W. cor. Sec. 8; thence N. 89 degree 51' E., 895.9 ft.; thence N. 43 degree 05' E., 2,524.8 ft.; thence N. 88 degree 45' E., 19.6 ft., to center line Sec. 8; thence north 800.2 ft. to center Sec. 8; thence S. 89 degree 51' W., 2,640 ft., to W. 1/4 cor. Sec. 8; thence south 2,640 ft. to place of beginning. That said 122.5 acres was, at the time it was so taken and appropriated, as herein set forth, of the value of $13,965, and that by reason of the acts of said defendant the said Howard Snowden has sustained damages to his land in the sum of $13,965.

'(6) That the said defendant has not paid for any part of the land herein above described, so taken by it, and has not paid said damages, nor any part thereof, to the said plaintiff, and no proceedings have been instituted for the purpose of ascertaining the damages due said plaintiff for the property so taken and damaged.'

There was, of course, a demand for judgment.

The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and no exception taken to the ruling. An amended complaint was filed which on motion was stricken from the files for the reason that in legal effect it in no way differed from the original complaint. The order which struck the amended complaint from the files also dismissed the action. The paragraph of the order which struck the complaint from the files preceded the paragraph dismissing the action. To this order the plaintiff excepted and sued out a writ of error to review the judgment of dismissal.

It is assigned as error that the court erred in rendering judgment in favor of the defendant, or, in other words, in dismissing the action. The argument of counsel for plaintiff is chiefly directed to showing that the trial court erred in sustaining the demurrer to the original complaint. Counsel for defendant insist that the ruling on the demurrer is not open for consideration because: (1) That the ruling was not excepted to; (2) that the plaintiff waived the error, if any, in the ruling by filing an amended complaint; (3) the ruling is not assigned as error.

In regard to the first objection, it may be said that no exception is necessary to open the question of law arising on the sustaining of the demurrer. Denver v. Holmes Savings Bank, 236 U.S. 101, 35 Sup.Ct. 265, 59 L.Ed. 485; Nalle v. Oyster, 230 U.S. 165, 33 Sup.Ct. 1043, 57 L.Ed. 1439.

In regard to the second objection, it may be said that the reason for the rule that when one amends his pleading after it has been attacked successfully by demurrer thereby waives any error in the ruling, is that by so doing he voluntarily accepts the ruling and seeks to cure the defect in the pleading by substituting a new pleading for the old, thereby rendering the ruling immaterial, but if the new pleading is stricken he ought not to be held to have waived the error in the ruling sustaining the demurrer, as there is no new pleading which can be said to have taken the place of the old. The attempt to do what would have amounted to a waiver has not been accomplished. Moreover, according to the record there was no amendment of the complaint.

When the case was dismissed there was only of record the original complaint, the demurrer thereto, and the order sustaining the demurrer. The case was dismissed for the reason that a demurrer had been sustained to the complaint, and no amended complaint filed; therefore, we think, that to assign as error the entry of the judgment of dismissal was sufficient in this case to permit the consideration of the question as to whether there was error in the ruling sustaining the demurrer. We will now proceed to consider that question.

The complaint, in brief, is this: The defendant having the right of eminent domain under the laws of Colorado to acquire land for the construction of a reservoir for the storage of water, without plaintiff's consent, took possession and occupied, and now continues to appropriate and occupy, a tract of land belonging to the plaintiff containing 122.5 acres, and constructed thereon a reservoir for the storage of water, and in the construction of said reservoir erected a dam of dirt and rock about 20 feet wide at the top and about 16 feet in height, with the intention to permanently occupy the same. The value of the land taken is alleged and judgment demanded for said value. That the complaint alleges a taking of the land in question seems clear, and that plaintiff is entitled to just compensation for the land taken necessarily follows. Counsel for defendant, however, insist that the plaintiff cannot recover the value of the land as damages. Their position stated in their brief is as follows:

'The correct view of the situation is that defendant was a trespasser and as such was liable in damages in a proper suit for its past unlawful occupancy if any such were claimed, and that it was also subject to a judgment ousting it from possession or restraining its operations until condemnation. This was the extent of its liability, but the action before this court is not of that character.'

We have not been referred to any legislation of the state of Colorado, nor have we been able to find any, which would compel the land owner to proceed under the condemnation statute to recover his damages; and, the complaint having alleged that no proceedings had been instituted by the defendant for the purpose of ascertaining the damages due said plaintiff for the property taken and damaged, the defendant is not at liberty on the present record to claim the benefit of any provision of the condemnation statute. The question then is: May the plaintiff waive the tort, conceding the facts pleaded show a trespass on the part of the defendant, and sue as upon an implied contract for the value of the land? The case of United States v. Great Falls Mfg. Co., 112 U.S. 645, 5 Sup.Ct. 306, 28 L.Ed. 846, was a case where the Great Falls Company had recovered a judgment in the Court of Claims against the United States...