Handy Ditch Co. v. South Side Ditch Co.

• Decision Date: 03 July 1899
• Citation: 26 Colo. 333,58 P. 30
• Parties: HANDY DITCH CO. v. SOUTH SIDE DITCH CO. et al.
• Court: Colorado Supreme Court

58 P. 30

26 Colo. 333

HANDY DITCH CO. v. SOUTH SIDE DITCH CO. et al.

Supreme Court of Colorado

July 3, 1899

Error to district court, Larimer county.

Action by the Handy Ditch Company against the South Side Ditch Company, the Hillsboro Irrigating Canal Company, the London Irrigation Canal Company, and the Farmers' Irrigating Company, to adjudicate priorities of water rights for irrigation. Judgment for defendants on demurrer to replication, and plaintiff brings error. Affirmed.

This is the second time that this case has been before this court. The opinion rendered on the former hearing is reported in 22 Colo. 102, 43 P. 535. The controversy, briefly stated, is as follows: In May, 1887, the Handy Ditch Company filed a complaint in the district court of Larimer county against all the ditch and canal companies in irrigation district No. 4 for the purpose of adjudicating priorities of water rights for irrigation in that district, except the Home Supply Ditch & Reservoir Company, which brought suit for the same purpose against the owners of all the ditches in said district except the Handy Ditch Company. To these complaints the Hillsboro Irrigating Canal Company and the other defendants severally filed similar answers. The first defense contained in each answer is set out in the former opinion, and is, in substance, that irrigation district No. 4, at the time of its creation, and at the time of filing the complaints, extended into Boulder county, and during all of said times the district court of that county was the one in which the first regular term after the 1st day of December in each year occurs; that in October, 1881, proceedings were duly instituted, pursuant to the act of 1881 relating to the setting of priorities of rights for the use of water, in the district court of Boulder county, wherein a referee was appointed, proofs taken, and a decree adjudicating the rights of all said water companies in irrigation district No. 4 was duly rendered on May 28, 1883. As a third defense they pleaded the decree of the district court of Boulder county to which both plaintiffs and defendants were parties, as res adjudicata of the controversy. To these defenses the plaintiff demurred on the ground that they did not state facts sufficient to constitute a defense. The court sustained the demurrers, the two cases were consolidated on March 14 1888, and proceeded thereafter in the name of plaintiff in error against the other companies defendant. On the issues joined by the second defense, the court appointed a referee, and proceeded to a final adjudication of the action, and rendered a decree varying in important particulars from the decree rendered in the district court of Boulder county in the statutory proceeding. From this judgment the defendant companies prosecuted the former appeal to this court, and assigned as error that the district court erred in sustaining the demurrers to the first and third defenses. This court reversed the decree of the district court of Larimer county on these grounds. Upon the cause being remanded, the plaintiff filed a replication to the first defense, which, in substance, admitted the facts therein alleged, but averred that before the commencement of the proceedings in the district court of Boulder county the district court of Larimer county had entered an order appointing one William B. Osborn referee, for the purpose of taking proofs and adjudicating the rights of ditch water owners under the provisions of the act of 1881; that said Osborn qualified, and took a large amount of testimony; and that said proceedings were pending on October 21, 1881, and had never been dismissed. No replication to the third defense, setting up the plea of res adjudicata, was filed. To the replication to the first defense the defendants filed a demurrer upon the ground that it was not sufficient in law to constitute a reply; second, that from the facts stated in the replication the district court of Larimer county had no jurisdiction. The court below sustained the demurrer, and dismissed the action. To this judgment the present writ of error is prosecuted.who were not parties to the decree, or, if parties, whose rights of action grows out of matters arising subsequent to the decree.

Teller & Orahood, for plaintiff in error.

H. N. Haynes and E. A. Ballard, for defendants in error.

PER CURIAM.

In the opinion rendered upon the former appeal we held that section 19, p. 100, Sess. Laws...