City and County of Denver v. Brown

• Decision Date: 07 February 1910
• Citation: 108 P. 971,47 Colo. 513
• Parties: CITY AND COUNTY OF DENVER et al. v. BROWN et al.
• Court: Colorado Supreme Court

108 P. 971

47 Colo. 513

CITY AND COUNTY OF DENVER et al. v. BROWN et al.

Supreme Court of Colorado

February 7, 1910

Rehearing Denied May 2, 1910.

Error to District Court, City and County of Denver; Frank T Johnson, Judge.

Suit by Samuel W. Brown and others against the City and County of Denver and another. There was a judgment for plaintiffs, and defendants bring error. Writ of error dismissed.

Allen &amp Webster and Harry A. Lindsley, City Atty., for plaintiffs in error.

Henry C. Allen, for defendants in error.

GABBERT J.

Defendants in error brought suit against plaintiffs in error to compel the latter to supply them with water from the city ditch for the purposes of irrigation during the season of 1905. From a judgment in favor of some of the plaintiffs, the defendants have brought the case here for review on error.

The proceedings must be dismissed. The judgment of the trial court was to the effect that the defendants should carry and deliver water to the plaintiffs in whose favor judgment was rendered during the irrigation season of 1905 at the rate of $1.25 per inch. If the court erred in rendering the judgment it did, nothing would be gained by granting the defendants a new trial in a case which involves nothing more than the right to water for a season that has passed. A judgment of this court on that question could not affect the rights of either of the parties at this time. Whatever they may have been when the original suit was instituted, and the judgment below rendered, cannot, in the circumstances of this case, avail either party now, for the obvious reason that the subject-matter of controversy has ceased to exist. The existence of an actual controversy is an essential requisite to appellate jurisdiction, and it is not within the province of an appellate court to decide abstract or hypothetical questions disconnected from the granting of actual relief, or from the determination of which no practical result can follow. Wheeler v. Northern Colo. I. Co., 10 Colo. 582, 17 P 487, 3 Am.St.Rep. 603; Townsend v. Fulton I. & D. Co., 17 Colo. 142, 29 P. 453; Combs v. Agricultural D. Co., 17 Colo 146, 28 P. 966, 31 Am.St.Rep. 275; Agricultural D. Co. v. Rollins, 42 Colo. 267, 93 P. 1125; Northern Colo. I. Co. v. Pouppirt (decided at the present term) 108 P. 23; 2 Cyc. 583.

In the court below it was stipulated by the parties that such of the plaintiffs as desired might deposit with the court the sum of $2 per inch for water for irrigation from the city ditch for the year 1905, with the understanding that $1.25 per inch of such deposit could be withdrawn by the city and county of Denver; the remaining 75 cents per inch to remain on deposit until the final determination of the cause in the trial court and in thi...