Denver City Irrigation & Water Co. v. Middaugh

• Decision Date: 05 April 1889
• Citation: 12 Colo. 434,21 P. 565
• Parties: DENVER CITY IRRIGATION & WATER CO. v. MIDDAUGH.
• Court: Colorado Supreme Court

21 P. 565

12 Colo. 434

DENVER CITY IRRIGATION & WATER CO. v. MIDDAUGH.

Supreme Court of Colorado

April 5, 1889

Appeal from district court, Arapahoe county.

It appears from the undisputed statements of the pleadings that the defendant, being appellant here, in the years 1878 and 1879 constructed a canal extending from the Platte river to its water-works, and in February, 1879, it commenced proceedings in the county court of Arapahoe county to condemn a right of way through, across, and over certain lands of the plaintiff, for the construction of certain canals, lakes, and reservoirs, which lands were a part of the lands of the plaintiff, described in the complaint, and for the alleged injury to which this action was brought to recover damages. Said proceedings in the county court resulted in the condemnation of 16 80-100 acres of plaintiff's land, for which plaintiff was awarded the sum of $2,163.75, and he was awarded the further sum of $1,500 for damages to that portion of his said lands not taken, which said sums so awarded to the plaintiff he received and accepted. The plaintiff alleges, and the defendant denies, that the construction of its canal and reservoir, by the defendant, on lands adjacent to the plaintiff's lands, was so negligently and unskillfully done, that water percolated, penetrated, and run through the banks and bottom thereof, over, under and through, and upon the plaintiff's lands, by reason whereof the plaintiff has been greatly damaged. The defendant alleges, and the plaintiff denies, that the damages of which plaintiff complains are the identical damages involved and in issue in the said condemnation proceedings, and are none other or different, and that the proceedings and judgment of the county court, with the payment of the amount of such judgment, are a full satisfaction and bar to the present action. A trial to a jury resulted in the following verdict 'We, the jury, upon the is sues herein joined, find for the plaintiff, and assess the damages by occasion of the premises in the complaint specified at the sum of $3,500.' Judgment was thereafter entered upon the verdict, and the case brought here by appeal. The remaining facts sufficiently appear in the opinion of the court.

Syllabus by the Court

1. In condemnation proceedings under the statute, in county courts such courts are without jurisdiction when the amount of the award is in excess of $2,000.

2. A party accepting and retaining the fruits of a void judgment is estopped from assailing the judgment itself.

3. And as to him such a judgment has the same force and effect as a valid judgment.

4. A judgment is conclusive between the parties, not only as to such matters as were in fact determined in the proceeding, but as to every other matter which the parties might have litigated as incident to, or essentially connected with, the subject-matter of the litigation, whether the same as a matter of fact were or were not considered.

5. In condemnation proceedings all damages, present and prospective, that are the natural, necessary, or reasonable incident of the improvement must be assessed, not including such as may arise from negligent or unskillful construction or use thereof. ^[1]

6. In assessing damages for lands taken for the construction of a canal or reservoir thereon, injuries to the residue of such lands arising from seepage and leakage from such canal and reservoir should be anticipated, and damages for the same should be included in the original assessment, and no subsequent recovery for such injuries will be allowed, unless such negligence or unskillfulness be shown. ^[1]

7. For trespasses or nuisances that are not of a permanent character, damages can only be recovered for the injury sustained up to the time of the commencement of the suit; but as to trespasses and nuisances that are of a permanent character a single recovery may be had for the whole damage resulting from the act.

ELLIOTT, J., dissents.

Decker & Youley, and Geo. H. Kohn, for appellant.

Patterson & Thomas, for appellee.

HAYT, J., ( after stating the facts as above.)

The county court was without jurisdiction in the condemnation proceedings, the amount of award being in excess of $2,000. Railroad Co. v. Church, 7 Colo. 143, 2 P. 218; Railway Co. v. Otis, 7 Colo. 198, 2 P. 925. A decision had not, however, been rendered in either of the cases cited at the time of the trial in the county court, and the parties to the condemnation proceedings treated the same as valid, the appellant paying and the appellee accepting the amount of the judgment awarded by the court. The appellant shortly thereafter entered into the possession of the lands condemned, and has since occupied the same, with its ditch and reservoir. Under these circumstances it becomes necessary to determine the status of the party under such void proceedings. It is a familiar principle of the law that a party accepting and retaining the fruits of a void judgment is estopped from assailing the judgment itself. Kile v. Town of Yellowhead, 80 Ill. 208; Town v. Town of Blackbery, 29 Ill. 137; Felch v. Gilman, 22 Vt. 39; Embury v. Conner, 3 N.Y. 511; Hitchcock v. Railroad Co., 25 Conn. 516. In none of the cases cited, however, did it become necessary to determine the effect of receiving the benefits of a judgment void for the want of jurisdiction in the court over the subject-matter of the suit, although the language used in some of the opinions is broad enough to cover such cases. In the case at bar the court below, in some of the instructions given to the jury, seems to have drawn a distinction between the case of a party accepting the fruits of a judgment rendered by a court without jurisdiction of the subject-matter and a case in which the party has received the fruits of a judgment voidable for the want of jurisdiction over the person, or on account of some informality occurring in the proceedings, antecedent to judgment, but this theory is expressly waived by counsel for appellee in their argument filed in this court, and, after diligent search, I have been unable to find any authority in support of the theory of the trial court. Nothing in the testimony indicates that at the time the appellant paid and the appellee received the amount of the judgment of the county court either party entertained a suspicions of the invalidity of such judgment, and under these circumstances we must presume that both parties were acting in good faith under the belief that the proceedings in that court were valid and binding, and that the judgment there rendered had all the force and effect of a valid judgment, and that the money was paid and the land taken with this understanding. And as appellee, after the notice of the invalidity of such proceeding, continued to retain the money so paid, I am of the opinion that he is estopped from denying the validity of such judgment, and that he should be held bound by that adjudication the same as he would have been had the court had complete jurisdiction, and that for the purposes of this action the same should be treated in all respects as a valid judgment. See Kile v. Town of Yellowhead and other cases cited, supra.

It appears from the testimony adduced upon the trial in the district court that a large number of witnesses were examined in the condemnation proceedings, in reference to the damages that would probably result to appellee's land by reason of seepage and leakage of water from the ditch and reservoir, and under the instructions of the county court the jury were permitted to consider and allow for such damages in that proceeding, if they saw proper, but it does not affirmatively appear that such elements of damage were in fact allowed. One juror, sworn as a witness upon the trial in the district court, testified that damages for seepage and leakage were not allowed; other jurors testifying that such matters were taken into consideration by the jury, but could not state whether any damages were allowed for the same or not. Under such circumstances I think it would be very difficult to say just what consideration influenced the mind of each juror in the condemnation proceeding in arriving at the conclusion that the sum of $1,500 should be allowed the appellee as proper compensation for the damages to result to the balance of his land; but, if the judgment of the county court is to be treated as valid, the consideration of this question is not material, for a valid judgment is conclusive between the parties, not only as to such matters as were in fact determined in that proceeding, but as to every other matter which the parties might have litigated as incident to, or essentially connected with, the subject-matter of the litigation, whether the same as a matter of fact were or were not considered. Freem. Judgm. § 249; Sabin v. Railroad Co., 25 Vt. 363. This principle was recognized by the learned judge in the trial below, in the instructions to the jury, upon defendant's plea of res judicata; for, after telling the jury that the plaintiff could not recover for the damages in fact allowed by the jury in the county court, they were also instructed that the law presumed that all past, present, and future damages which the improvement would cause, so far as the same might have been reasonably foreseen or anticipated, were included in the award of the jury in the condemnation proceedings. Under these and other instructions the jury were left, however, to determine whether the damages claimed might have been reasonably foreseen or anticipated by the jury in the condemnation proceeding, and, if not, they were instructed that the appellee might recover for such damages in this action, as well as for damages arising from unskillful or negligent construction or use of the...