Board of Com'rs of Montezuma County v. Wheeler

• Decision Date: 04 March 1907
• Parties: BOARD OF COM'RS OF MONTEZUMA COUNTY v. WHEELER.
• Court: Colorado Supreme Court

89 P. 50

39 Colo. 207

BOARD OF COM'RS OF MONTEZUMA COUNTY v. WHEELER.

Supreme Court of Colorado

March 4, 1907

Appeal from District Court, Montezuma County; James L. Russell Judge.

Action by Henry C. Wheeler against the board of commissioners of Montezuma county. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

S.W. Carpenter, for appellant.

Reese McCloskey, for appellee.

BAILEY J.

This appeal is from a judgment in an action brought by appellee Wheeler, to recover from appellant $265, and interest at the rate of 8 per cent. per annum from the 1st day of January 1900, being an alleged pro rata portion of the fees and expenses claimed by appellant for his services as superintendent of irrigation in water division No. 4. Defendant filed a general demurrer to the complaint, which was overruled. Defendant then filed its answer, containing a general denial and a separate defense. Plaintiff moved to strike the second defense, for the reason that the same did not state facts sufficient to constitute a defense to plaintiff's cause of action; the effect of this motion being that of a general demurrer. This motion was sustained. The case went to trial on the complaint and general denial. Judgment was rendered for plaintiff in the sum of $316 and costs. Defendant appeals.

The matters relied upon for the reversal of the judgment are first, the insufficiency of the complaint and of the evidence either to state a cause of action or support the findings and judgment; second, the action of the court in sustaining plaintiff's motion to strike the second defense; and, third, the allowance of interest as part of the judgment for the claim sued upon.

First. The complaint alleges that the plaintiff was the duly appointed, qualified, and acting superintendent of irrigation in and for water division No. 4, named and called the 'San Juan Division'; said division embracing the counties of Archuleta, La Plata, and Montezuma, in the state of Colorado. It is contended that the complaint should have alleged that certain counties, including the ones sought to be charged, contained lands that were irrigated by water taken from some one or more of the streams mentioned in the act creating the water division, and that the counties so named were all of such counties, and, because the complaint fails to allege that there are no other counties in water division No. 4 which contain lands that are irrigated by water taken from some one or more of the streams embraced in the division, it is defective. Chew v. Board of Commissioners or Fremont County, 18 Colo.App. 162, 70 P. 764, is cited as supporting this contention. It was held in that case and rightfully, that 'all of the counties which contain lands that are irrigated by water taken from any one or more of the streams mentioned in the act creating the water division are embraced within the division, and are each liable for their respective shares of the compensation of the superintendent of irrigation for that division.' It was not held in that case that it must necessarily appear from the complaint that there were no counties other than those sought to be charged containing lands irrigated by water taken from any one or more of the streams in the division. The complaint alleges that the division embraced the three counties; that he services were rendered, and that the value of the services was $765, and the amount of the expense was $30; and, also, 'that by reason of the above premises the said counties of Archuleta, La Plata, and Montezuma became and were indebted to this plaintiff in the sum of $765 for said 153 days so employed in the discharge of his said duty at $5 per day, and in the said sum of $30 so as aforesaid incurred as expense by this plaintiff in the discharge of his said duties, making a total of $795, and the defendant herein became and was indebted to this plaintiff in the sum of $265, same being the pro rata share for the said county of Montezuma in the said amount of $795.' The complaint further alleges the presentation of the claim to the board of county commissioners, and of its failure and refusal to pay the same. These facts, if true, constitute a cause of action. If there were any counties embraced within the division other than those mentioned in the complaint, that is a matter of defense, and should be pleaded as such.

It is contended that the evidence fails to show how many counties contained lands irrigated by water taken from some one or more of the streams mentioned in the act creating water divisions, and also that there was an entire lack of evidence as to whether or not defendant county contained any such lands. Plaintiff testified that there were three counties, Archuleta, La Plata, and Montezuma, in the district jurisdiction--that is, three counties in the division where water had been adjudicated and where he did the work--and that he made no bill against the counties in which there had been no adjudication of water rights. While this is not very clear or satisfactory, in the absence of any proof to the contrary, it is sufficient to support the findings of the court that Montezuma county was liable for its pro rata share of the account. The witness states that these three counties are the ones in which the right to the use of water had been adjudicated, and, of course, there could be no adjudication of the right to the use of water in Montezuma county unless the water was used.

As to the contention of defendant that plaintiff should have charged a portion of the account to other counties in the division, and was not excused because the right to the use of water in such other counties had not been adjudicated, it is sufficient to say that there was no proof that the water was used upon any land in any of the other counties in the division, and, in the absence of such proof, we cannot assume that it was.

Second. The second defense of defendant was to the effect that no board of county commissioners of any county whose territory or any part thereof is included in the water division adopted a resolution requesting the appointment of the superintendent of irrigation. This, as hereinbefore stated, was upon motion stricken. The court did not err in this particular. The statute (Mills' Ann. St. § 2447) provides that the Governor 'shall not appoint a superintendent of irrigation in any district until the board of county commissioners of some one or more of the counties whose territory, or any part of whose territory, is included in such water district, shall have at a meeting regularly called and held adopted a resolution requesting such appointment...