Fulton Inv. Co. v. Farmers' Reservoir & Irrigation Co.

• Decision Date: 05 January 1925
• Docket Number: 10948.
• Citation: 76 Colo. 472,231 P. 61
• Parties: FULTON INV. CO. v. FARMERS' RESERVOIR & IRRIGATION CO.
• Court: Colorado Supreme Court

231 P. 61

76 Colo. 472

FULTON INV. CO. v. FARMERS' RESERVOIR & IRRIGATION CO.

No. 10948.

Supreme Court of Colorado, En Banc.

January 5, 1925

Rehearing Denied Feb. 2, 1925.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by the Fulton Investment Company against the Farmers' Reservoir & Irrigation Company. From a judgment on a directed verdict for defendants, plaintiff brings error.

Affirmed in part, and reversed and new trial granted in part.

Edwin H. Park, of Denver, for plaintiff in error.

Smith &amp Brock and John P. Akolt, all of Denver, for defendant in error.

DENISON J.

The plaintiff in error was plaintiff below, the court directed a verdict for the defendants, and the plaintiff brings the case here on error.

The complaint, in form, contains two causes of action. For a first cause of action it alleged that one Alice Hopkins in 1912 was the owner of section 25-1-68, and granted to said defendant a right of way across the same for a pipe line for irrigation the complaint further alleges that at the same time the defendant entered into an agreement granting to said Hopkins her heirs, successors, and assigns, the right perpetually to use said pipe line for the conveyance of water for irrigation on said section 25 and other lands free of cost or other expense; that the plaintiff purchased the land in question of the said Alice Hopkins; and that in the month of August, 1921, the defendant ^[1] wrongfully entered upon said section 25 and did dig up and remove all of said pipe line, carrying the same away and disposing of it for the use and benefit of said defendant, and thereby depriving the plaintiff of all means of irrigating said section 25, except by the replacement of said pipe line. The answer expressly admits that defendant caused the pipe to be dug up and carried away.

The second cause of action is for negligently setting fire to the stubble standing on the land of the plaintiff.

We treat the second cause of action first.

The complaint alleges negligent selection of employees and negligent permission to smoke, 'and said employees did, by reason of indulging in said habit, or in some other manner, carelessly and negligently set fire to the stubble remaining on said lands.' The evidence failed directly to show negligence in selection of employees or permission to smoke, and did not directly show that smoking caused the fire, but did show that workmen in employ of defendant caused the fire, and defendant claims that, because plaintiff specified negligence in selection of employees and permitting them to smoke, it could prove no other negligence.

It is true that, where one alleges specific negligences and no other, he must rely on the specified ones alone. But here plaintiff has expressly alleged that there was other, and has given evidence of a prima facie case of another or others. It is strongly intimated in Colorado, etc., Co. v. Jenkins, 25 Colo.App. 348, 358, 359, 138 P. 437, that this is permissible. Is that intimation contrary to the decisions of this court?

In Denver Tramway Co. v. Johnson, 66 Colo. 50, 179 P. 143, there is no allegation of general negligence. In Murray v. Newmyer, 66 Colo. 459, 460, 182 P. 888, it is doubtful if there can be said to be any general allegation of negligence. In Denver, etc., Co. v. Walters, 39 Colo. 301, 89 P. 815, there was none, nor was there in Elkton, etc., Co. v. Sullivan, 41 Colo. 241, 92 P. 679. We have found none otherwise.

This case, then, is of first impression in this court. We have held that a general statement of negligence is enough against a general demurrer, and we have held that the remedy is motion to make more definite and certain, but we do not know that we have ever held that a plaintiff must in any and every case specify the negligence. There may be cases where he could not, and this seems to be one. The evidence makes a strong prima facie case, i. e., that two employees of defendant were the only persons who could have caused the fire, and negligence is the only hypothesis which would acquit them of arson, if the firing of stubble can be called arson, and we cannot presume crime or willful wrong. We think that the intimation of the Court of Appeals noted above was right, and not in conflict with our former decisions. See, also, Walters v. Seattle Co., 48 Wash. 233, 93 P. 419, 24 L.R.A. (N. S.) 788; Kluska v. Yeomans, 54 Wash. 469, 103 P. 821, 132 Am.St.Rep. 1121.

The two workmen must be said, prima facie, to be defendant's servants, because it is admitted that defendant dug up the pipe, and they are shown to have been digging it up. In addition it may be said that it is by no means certain that there was not evidence of a prima facie case of negligence in allowing the employees to smoke. Palmer v. Keene Forestry Association, 80 N.H. 68, 112 A. 798, 13 A.L.R. 995. See, also, Jefferson v. Derbyshire Farmers, 2 K. B. Div. 1921, 281.

But, again, the second cause of action adopts all the allegations of the first cause of action, and therefore alleges an unlawful entry, trespass quare clausum fregit, and the evidence makes a good case of that sort, without proof of negligence.

We do not think that a pleader has any right, under rule 2, to adopt, wholesale, all the allegations of a previous cause of action or pleading, relevant and irrelevant, material and immaterial, and leave the other parties and the court to conjecture what he really intends to use, and perhaps, as here, making his second cause state three causes of action. The rule was intended to prevent the necessity of repeating the parts relevant to the later count, and it was expected that pleaders would refer only to the relevant parts by...