Greeley & Loveland Irr. Co. v. Handy Ditch Co.

• Decision Date: 15 June 1925
• Docket Number: 10939.
• Citation: 77 Colo. 487,240 P. 270
• Parties: GREELEY & LOVELAND IRR. CO. et al. v. HANDY DITCH CO. et al.
• Court: Colorado Supreme Court

240 P. 270

77 Colo. 487

GREELEY & LOVELAND IRR. CO. et al. v. HANDY DITCH CO. et al.

No. 10939.

Supreme Court of Colorado, En Banc.

June 15, 1925

Rehearing Denied July 6, 1925.

Error to District Court, Boulder County; Neil F. Graham, Judge.

Action by the Handy Ditch Company and others against the Greeley &amp Loveland Irrigation Company and others. From a judgment of the court, rewriting a decree in a former opinion and permitting further testimony, the defendants bring error.

Reversed with instructions.

Burke Denison, and Sheafor, JJ., dissenting.

C. D. Todd, of Greeley, for plaintiffs in error.

Harry N. Haynes, of Greeley (Ralph L. Dougherty, of Greeley, of counsel), for defendant in error Great Western Sugar Co. grantee of Cemetery Lake Reservoir Co.

Stow & Stover and W. K. Lilley, all of Ft. Collins, for defendants in error Handy Ditch Co., Fairport Reservoir Co., and Loveland Lake & Ditch Co.

P. D. Nelson, of Berthoud, for defendant in error Handy Ditch Co.

ADAMS J.

This case is here for the second time. Greeley & Loveland Irrigation Co. v. Huppe et al., 60 Colo. 535, 155 P. 386.

In 1904, a statutory adjudication of priorities of right to the use of water for irrigation was commenced in water district No. 4. On notice and evidence taken, it resulted in a decree in 1912, to which the litigants in this case or their privies were parties. It came before us for review in the Huppe Case, supra, and was remanded, with directions to rewrite the decree. The defendants in error, Huppe et al., petitioned this court for a rehearing, and at the same time asked that they be permitted to take further testimony, under R. S. 1908, § 3318 (C. L. 1921, § 1789). This was denied. Greeley & Loveland Irrigation Co. v. Huppe, supra.

The lower court caused the 1912 decree to be rewritten as directed, but thereafter permitted further testimony, resulting in a new decree as to eight out of twenty-three reservoirs, at variance with the 1912 decree as rewritten. The plaintiff in error in the former case again brings error, with other water users, and asks to have the status of the decree restored as rewritten pursuant to our directions in the Huppe Case.

The above section reads as follows:

'The district court, or judge thereof in vacation, shall have power to order, for good cause shown, and upon terms just to all parties, and in such manner as may seem meet, a reargument or review, with or without additional evidence, of any decree made under the provisions of this act, whenever said court or judge shall find from the cause shown for that purpose by any party or parties feeling aggrieved, that the ends of justice will be thereby promoted; but no such review or reargument shall be ordered unless applied for by petition or otherwise within two years from the time of entering the decree complained of.' R. S. 1908, § 3318; C. L. 1921, § 1789.

1. We consider, first, the application of the above section to the proceedings in the lower court prior to the Huppe decision: These proceedings, authorized by statute for the adjudication of priorities of right to the use of the public waters of the state, are special. The district court of the water district in which such statutory proceedings may be initiated has full and exclusive original jurisdiction of the subject-matter. Upon the initiation of the proceedings and the giving of notice as provided, all water users in the water district have constructive notice of the pendency of the proceedings and constructively are parties thereto, and the court is given constructive jurisdiction of the persons.

Upon claimants of ditches, reservoirs, or other such works appearing in such proceeding, making claim or contesting the rights of other claimants, the court acquires actual and full jurisdiction of their persons, their claims, and contentions for all purposes of such proceeding. Upon such appearance, the jurisdiction of their persons, claims, and contentions is as full and complete as that acquired upon due service of summons and appearance in the ordinary action. When the court acquires such full jurisdiction of the persons for the purpose of determining the priority rights of their ditches and reservoirs, the decree entered is res judicata between the contending parties so appearing and submitting their respective claims, to the same extent as judgments and decrees in ordinary actions tried in due course.

As the proceedings are of a special character, and the jurisdiction of the persons of the several water users in the water district, except when appearance is made, is dependent generally upon the posting and publishing of the general notice, it was no doubt deemed advisable and necessary to the end that litigation might be ended to provide a reasonable time after the entry of a decree within which claimants in the district, nor having actual notice of the proceedings, should have their 'day in court'; i. e., an opportunity to be heard. The Legislature therefore enacted, as a part of the adjudication scheme, what is now section 1789, C. L.

1921, above quoted, fixing a limit of two years after the entry of the decree within which time, for good cause shown, the decree might be reargued or reviewed with or without further testimony. We have said that the necessity for this section was to provide in this special proceeding, when jurisdiction of the person is dependent upon constructive service, a day in court for those claimants within the same water district and not having had actual notice, but after which time their mouths would be closed. The section is also broad enough to allow the claimants appearing to have a reargument and review for good cause shown.

It is apparent that a claimant that did not have actual notice of such proceeding, and was not guilty of neglect in respect thereto, would, under such showing of no actual notice, have the required 'good cause shown' for such review, but what would constitute 'good cause' for thus reviewing the decree at the instance of parties who appeared and had their contentions and differences adjudicated, or who had actual notice and full opportunity to do so, must generally be determined upon substantially the same basis as to what constitutes good cause for reargument and review of a judgment or decree in other actions. The section referred to does not indicate that any other or special meaning is given to the term 'good cause.' We realize, but do not decide, that material matters arising subsequent to the decree, on a showing based upon the equitable grounds of fraud, accident, or mistake or denial or want of an opportunity to present their proofs and the like, might constitute good cause. No such situation is presented here, for, as we said nine years ago in this same case, the defendants in error knew what the contentions of plaintiff in error were. 'The issue there was marked and well defined; there was no other controversy before the court.' 60 Colo. 535, 548, 155 P. 386, 391.

It is not the purpose of the section quoted to permit the review of questions of law or of fact, which were the subject of contentions between parties appearing in the proceeding and then fully presented, or which the parties so appearing then had full opportunity to present for determination. In the instant case, as shown in our former opinion, the referee was appointed in June, 1904, and the taking of testimony began July, 1904, and the proceedings remaining open until March, 1912, regarding which this court then said:

'Affording over seven years for the taking of testimony, giving defendants their opportunity to submit all their facts and evidence to the court.'

The rights of these parties to have reservoir decrees under the facts shown were fully presented, considered, and determined by our former order. These parties so appearing then had 'their day in court.' The judgment of this court on the law and the facts was final. We then said 'litigation must end somewhere.' This is true now, as then. It is clear that the judgment of this court upon the subject-matter, and between the parties there submitting themselves to its jurisdiction and their privies, is res judicata. The subsequent presentation of the matters which this court is now asked to consider, which matters it is now claimed controvert or tend to disprove the adjudicated facts,...