Gutheil Park Inv. Co. v. Town of Montclair

• Decision Date: 02 May 1904
• Citation: 76 P. 1050,32 Colo. 420
• Parties: GUTHEIL PARK INV. CO. v. TOWN OF MONTCLAIR.[*]
• Court: Colorado Supreme Court

76 P. 1050

32 Colo. 420

GUTHEIL PARK INV. CO. v. TOWN OF MONTCLAIR.^[*]

Supreme Court of Colorado

May 2, 1904

Appeal from District Court, Arapahoe County; Samuel L. Carpenter Judge.

Action by the Gutheil Park Investment Company against the town of Montclair. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Robert E. Foot, for appellant.

T. E Watters, for appellee.

CAMPBELL J.

The subject-matter of the controversy is a water right for irrigation purposes. The action is equitable in its nature. The complaint has some of the characteristics of a bill to quiet title and some of the features of a suit to prevent a disturbance or obstruction of a right to use the water for irrigation, and to require a transfer of its place of use. The complaint, when filed, named as defendants the town of Montclair and the Northern Colorado Irrigation Company. It contained two causes of action, the allegations of the first of which were directed particularly against the town, those of the second against the irrigation company. In the first are averments that plaintiff is the owner and in possession of a certain water right that is carried in the canal of the irrigation company, as the agency in the appropriation thereof, in which the town asserts an interest adverse to plaintiff, though it is without any right thereto and has wrongfully, and against plaintiff's protest, for a number of years utilized the same, to plaintiff's injury. The prayer is that the town be required to set forth the estate which it claims, that plaintiff have damages for the wrongful use, and a decree adjudging title to be in plaintiff, and that defendant town be enjoined from using the water right. In the second cause there are the same allegations of plaintiff's ownership and possession, and a charge that the irrigation company has refused to transfer this water right to lands of plaintiff other than those for which the appropriation was originally made. The prayer is that the company set forth the interests it has in the property, that title be adjudged to be in plaintiff, and the defendant company be ordered to make the transfer desired. A motion by the defendants for a more specific statement was denied, any they then filed a joint demurrer to each cause of action, containing a number of grounds, among which are an improper joinder of parties defendant. The demurrer was overruled as to the first cause of action and sustained as to the second, whereupon the plaintiff voluntarily dismissed the action as to the irrigation company. The town then filed an answer to the first cause of action, which was the only part of the complaint left for consideration, and this answer contained a number of defenses, the first of which is a general denial. The other defenses, so far as material to state here, consist of allegations of fact, which, in the judgment of defendant, vested in it an interest and estate in the property superior and paramount to the title of the plaintiff. The replication denied the new matters set up in the answer. The trial was to the court without a jury upon the issues thus joined, and at the close of plaintiff's case, defendants, declining to introduce any evidence, made a motion for a nonsuit, which was granted by the court, upon the grounds, as stated in its opinion, that the proof did not show that plaintiff was in possession of the water right at the time of the beginning of the action, and that plaintiff took nothing by its deed purporting to convey the same. From the judgment the plaintiff prosecutes this appeal.

It seems that the district judge who heard the demurrer believed that plaintiff was entitled to equitable relief upon the facts set up, though the subject-matter of the action was an incorporeal water right. A different judge presided at the trial, and he was inclined to the opinion that the action was brought under section 255 of the Code, which empowers one in possession of real property to bring in a party who asserts a hostile title, and require him to set it up, so that the title may be determined. It was his opinion, therefore, because one cannot be in actual physical possession of a mere easement--which a water right is--an action to quiet title thereto does not lie. But under the practice that prevails in the Second Judicial District, which is composed of more than one judge, he felt bound by the decision of his predecessor to the contrary. That question is not much mooted in argument here, but it seems that in Grand Valley Irr. Co. v. Lesher, 28 Colo. 273, 65 P. 44, the title to a water right was quieted. In Wyatt v. Irrigation Co., 18 Colo. 298, 33 P. 144, 36 Am.St.Rep. 280, a water right such as we are considering was held to be an easement, and an incorporeal hereditament descendible by inheritance, and a freehold estate. It therefore comes within the meaning of the term 'real property' as used in our statutes. At the common law the general rule was that ejectment did not lie in favor of a party to try his right to enjoy an easement. The remedy was in case for damages, or by a suit in equity to prevent interference with its enjoyment. Where a plaintiff is out of possession of real property, and there is some other distinct head of equity jurisdiction sufficient to support the action, equity will retain the cause and grant relief by quieting title or removing a cloud. The authorities are collected in 17 Enc. Pl. & Pr. 309. Applying that principle here, we say that, though the ordinary allegations found in a bill to quiet title are in this complaint, there are also allegations that the defendant has interfered with and obstructed the plaintiff in its enjoyment of the right to the use of water for purposes of irrigation. That a court of equity, independent of the statute, has jurisdiction to restrain interference with a water right, seems well settled. Hence, under this doctrine, the court, having acquired jurisdiction to restrain interference with plaintiff's use of water, might properly retain jurisdiction, and determine all the rights of the parties, even though plaintiff is not in actual possession; because, as we have already indicated, the controversy between the parties is one of which equity has jurisdiction independent of statute.

But if this is an action merely to quiet title to an easement, the objection to its maintenance can be waived...