Fort v. Bietsch

• Decision Date: 28 January 1929
• Docket Number: 12119.
• Citation: 85 Colo. 176,274 P. 812
• Parties: FORT v. BIETSCH.
• Court: Colorado Supreme Court

274 P. 812

85 Colo. 176

FORT v. BIETSCH.

No. 12119.

Supreme Court of Colorado, En Banc.

January 28, 1929

Rehearing Denied Feb. 18, 1929.

Error to Adams County Court; George a. Garard, Judge.

Action by Gottlieb Bietsch against Z. J. Fort. Plaintiff recovered judgment for damages in the justice court, which was affirmed in the county court, and defendant brings error, and applies for supersedeas.

Reversed with directions.

Allen, Webster & Drath, of Denver, for plaintiff in error.

J. Paul Hill, of Brighton, for defendant in error.

ADAMS J.

Bietsch brought an action in tort against Fort before a justice of the peace, and recovered judgment for damages in the sum of $200. Fort appealed to the county court, where judgment in a like amount was again awarded against him. He brings the case here on writ of error, and asks for a supersedeas. Both parties ask for a final determination on such application. The parties will be designated as at the trial, Bietsch as plaintiff, and Fort as defendant.

Defendant owns a reservoir for irrigating purposes, constructed across Todd creek. The reservoir dam is composed of earth. Todd creek is a natural stream with a small normal flow, but it is subject to heavy periodical floods. Its waters sometimes come down in such quantity and with such force as to carry trees and other obstructions in their wake. The habits of Todd creek in this regard were known to plaintiff and defendant.

Plaintiff owns an improved tract of land consisting of about 24 acres situate to the south of, and below defendant's dam. In the year 1923 there was a flood, and a portion of the dam broke; the waters inundated plaintiff's lands and injured them and the crops thereon. The damages resulting therefrom were settled by mutual agreement. Thereafter, in 1923 or 1924, defendant repaired the dam, but in 1925, after another flood, it broke loose again, which caused further injuries to plaintiff's lands and crops. In March, 1926, plaintiff and others then interested in the land, brought suit in the district court against defendant (not the present suit), and, as defendant claims, for damages past, present, and prospective, but plaintiff claims that such suit was not for prospective damages.

After the dam broke the second time, it was not repaired; no water has been impounded; and the reservoir has remained in disuse. The aperture caused by the flood is about 100 feet wide across the dike, which is wider than the original bed of the stream before the reservoir was constructed. The building of the reservoir changed the channel of Todd creek and caused it to swerve on plaintiff's lands.

About July or August, 1926, while the action in the district court was pending, and before the trial, another flood came down Todd creek, passed through the old break in the dam, again inundated plaintiff's lands, and caused more damage. The case in the district court was tried in January, 1927. In that case, plaintiff introduced evidence of the damage caused by the floods of 1923, 1925, and 1926. A map, Plaintiff's Exhibit A in the case in the district court, shows by color schemes, the following: Damage in 1923, .42 acre; damage in 1925, .35 acre; damage in 1926, .12 acre; land required for slope, .21 acre; land required for ditch, .05 acre. Plaintiff also introduced in evidence a number of kodak pictures particularly with reference to the break in the dam. He obtained judgment against defendant in the sum of $500, which the latter paid.

On November 28, 1927, plaintiff instituted the present action. It was brought to recover for the 1926 damage and prospective damages thereafter. At the trial in the county court, plaintiff introduced the same map and kodak pictures that were in evidence in the prior cause in the district court. They show the existence of substantially the same situation on the ground under the evidence in the two cases. In general, plaintiff relied on similar proof in both cases to obtain judgments in each, as far as material to this opinion.

Defendant's chief assignment of error is on the ground that the former recovery is a bar and constitutes an estoppel to the prosecution of the present action in the following particular: The injury and damages assessed in the first action should have included and did include those that were then prospective, as well as past and present at the time of that action, that this embraced the damages consequent upon the 1926 flood, which was also the basis of the present recovery, and that, as a result, plaintiff has sued and recovered twice for the same proximate cause and for the same injury, and has thus erroneously obtained a double judgment.

1. The merits of the above assignment must be determined by a comparison of the two actions, the first one in the district court, and the second in the county court, now under review. In doing this, we shall limit our inquiry to two things, the identity of the parties and the issue, as was done in Albertson v. Clark, 70 Colo. 129, 130, 197 P. 757, under a plea of res adjudicata. In the present case, it is not claimed that there is a diversity of parties; the controversy is over the identity of the issue. Was the cause and effect the same, and how shall this be determined? The answer will be found in the record in the two cases.

The first action was brought under section 1684, C. L. 1921, which reads: 'The owners of the reservoirs shall be liable for all damages arising from leakage or overflow of the waters therefrom or by floods caused by breaking of the embankments of such reservoirs.'

Plaintiff's amended complaint in the first suit, which is in evidence in the second, also shows that the building of defendant's reservoir changed the channel of Todd creek, and thus caused or contributed to the injury complained of. When the second suit was brought, the physical condition of the reservoir and stream remained unaltered. After the 1925 break, as said above, no water was impounded, and the gap in the dam or dike, wider than the natural bed of the stream, remained as before, for water to run through. There are no pleadings in the second case, for the reason that it originated before a justice of the peace, but the brief of counsel for plaintiff avers that it is to recover under the above section 1684, but takes the further position that, if the court should regard this as untenable, then plaintiff should have damages because of the changing of the channel of Todd creek, and the consequent diversion of water on his lands. However, the above pleading and statement of defendant himself, establishes the identity of the same proximate cause of the injury in both cases, namely, the reservoir construction and change in the creek bed, and that they were the subject of adjudication in each of such cases.

2. The disposal of the question of parties, the elimination of certain issues, and the admitted fact that plaintiff's recovery in the second action was predicated on injuries brought about by the 1926 flood, all go to reduce the inquiry to the point as to whether plaintiff's damages sustained in the year 1926 were or should have been determined in the prior cause. If so, the judgment must be reversed, for, as well said by Mr. Justice Sheafor in Pomponio v. Larsen, 80 Colo. 318, 321, 251 P. 534, 536: 'It is fundamental, and well understood, that the judgment of any court of competent jurisdiction, so long as it remains unreversed, is conclusive upon the parties and their privies when the judgment is rendered upon the merits, and without fraud or collusion, upon a matter within the jurisdiction of the court rendering the judgment. Such a judgment is an absolute bar to the prosecution of a second action on the same claim or demand, not only as to matters actually in controversy in the first action, but as to every matter which might have been litigated and determined therein incident to and necessarily connected with the subject matter of the litigation. Smith v. Cowell, 41 Colo. 178, 92 P. 20.'

A review of the decisions shows that the above salutary general rule to minimize litigation has been the expressed view of ...