Boulder & Weld County Ditch Co. v. Lower Boulder Ditch Co.

• Decision Date: 06 November 1895
• Citation: 22 Colo. 115,43 P. 540
• Parties: BOULDER & WELD COUNTY DITCH CO. et al. v. LOWER BOULDER DITCH CO. et al.
• Court: Colorado Supreme Court

43 P. 540

22 Colo. 115

BOULDER & WELD COUNTY DITCH CO. et al. v. LOWER BOULDER DITCH CO. et al.

Supreme Court of Colorado

November 6, 1895

Appeal from district court, Boulder county.

Action by the Boulder & Weld County Ditch Company and others against the Lower Boulder Ditch Company and others to establish their right to the beneficial use of a quantity of water from a natural stream. From a judgment for defendants, plaintiffs appeal. Affirmed.

R. H Whiteley, and Rogers, Shafroth & Walling, for appellants.

S. A Giffin and Byron L. Carr, for appellees.

CAMPBELL J.

This action was brought to obtain a decree adjudging to the plaintiffs the ownership of a right to the use of a designated quantity of water diverted from the natural stream of Middle Boulder creek, of which, it is alleged, the defendants had wrongfully deprived them. There are two causes of action set out in the amended complaint, the first of which grounds plaintiffs' rights upon a decree of court duly rendered by the district court of Boulder county in certain proceedings under the irrigation statutes of 1879-81. The second cause of action disregards the decree and bases the right of plaintiffs upon a prior valid appropriation. To this amended complaint, defendants filed an answer, containing three separate and distinct defenses being substantially the same defenses to each of the causes of action. The first defense is a general denial of the material allegations of the amended complaint; the second, a plea of res adjudicata; and the third, a plea of the statute of limitations in bar of plaintiffs' right to recover. To the second and third defenses, plaintiffs interposed a demurrer, on the ground that neither constituted a defense to the causes of action set out in the complaint. The district court overruled the demurrer, to which ruling the plaintiffs excepted. Thereupon plaintiffs elected to stand by their demurrer, and the court dismissed the complaint. Assuming that there is an appeal from the final judgment,--a question not argued by counsel, and not considered by the court,--the sole question raised by the demurrer of the plaintiffs is as to the sufficiency of the second and third defenses of the answer, designated, respectively, as the 'plea of res adjudicata' and the 'plea of the statute of limitations.' It should be stated that in their first cause of action the plaintiffs allege that the amount of water which they now claim as against the defendants was awarded to the defendants by the prior decree of the district court; but that, nevertheless, plaintiffs' right thereto is a superior right, and arises from the fact that the defendants had never used the same, and that plaintiffs, as appropriators, are entitled to the use of the amount of water included in defendants' decree, in excess of that actually applied by the defendants to a beneficial use. From this it will be seen that the plaintiffs base their claim to such alleged excess, not upon an abandonment thereof by the defendants subsequent to the date of the decree, but upon the fact that defendants were not entitled to such excess, though covered by their decree, because they had never used the same. This nonuse must refer to a period of time prior to the date of the decree, for in the same paragraph the plaintiffs say that during and since 1883 (the year next ensuing after the decree was rendered) the defendants have continuously, though wrongfully, used such excess. This reference is further manifest from the argument of counsel for appellants when giving their reasons for setting up two causes of action for the same wrong. Their theory was to rely upon the first cause of action, which expressly recognized the validity of the former decree, provided they could get a ruling from the court that the decree might still be reopened for material change; but, if the court should hold that such matters were res adjudicata, then the plaintiffs would repudiate the decree, and insist that it was void, because the court pronouncing it proceeded upon an unconstitutional basis for determining the priority of rights of the different claimants, and that, the decree being void, the whole question of priority of rights to the use of water was still unsettled, and that it was now before the court for original adjudication.

There is no contention that either of these two defenses is defective as to form. Indeed, they contain all the formal requisites of, and all the allegations appropriate to, such defenses. 2 Black, Judgm. §§ 789, 790. The second defense to the first cause of action substantially alleges that in the district court of Boulder county, in proceedings there pending under the irrigating statutes of the state, to which these plaintiffs and these defendants were parties, the same matters and claims now sought to be brought into controversy in the case at bar were fully and duly adjudicated, and decrees in said proceeding were duly rendered, as particularly set forth in the complaint, fully adjudicating all the rights of the parties to this action concerning the matters and things sought to be readjudicated in the case at bar, which former decrees are in full force and effect. In addition to the foregoing matters, the second defense to the second cause of action contains an allegation to the effect that ever since the said former decree was rendered,...