Knoth v. Barclay

• Decision Date: 08 May 1885
• Citation: 8 Colo. 300,6 P. 924
• Parties: KNOTH v. BARCLAY and others.
• Court: Colorado Supreme Court

6 P. 924

8 Colo. 300

KNOTH v. BARCLAY and others.

Supreme Court of Colorado

May 8, 1885

Error to county court of Boulder county.

Tilford & Gilmore and Dolloff &amp Rittenhouse, for plaintiff in error.

Byron L. Carr, for defendants in error.

HELM J.

This action was brought in 1881 under the provisions of our act on the subject of eminent domain. Petitioners, who are defendants in error, sought to procure the assessment of damages arising from the construction of an irrigating ditch over the lands occupied by respondent, who is plaintiff in error. The latter demanded a jury to assess these damages and one was accordingly sworn. After examining the property hearing the evidence, and receiving instructions from the court, the jury awarded the sum of one dollar, as compensation to respondent for the injury. To reverse the judgment, entered upon this verdict, the case was brought here by error.

Proceedings of this nature are sui generis; they are purely statutory, and in many important particulars are wholly unlike our ordinary civil actions under the Code. Tripp v. Overocker, 7 Colo. 72; S.C. 1 P. 695; Denver & N. O. R. Co. v. Jackson, 6 Colo. 340. Therefore the general provisions of the latter instrument, on the subject of amendments to pleadings, are inapplicable. This matter in these proceedings is governed by section 5 of the act mentioned, which act has been by the compilers incorporated into the Code, and is now chapter 21 thereof. This section contains, inter alia, the following: 'Amendments to the petition, or to any paper or record in the cause, may be permitted, when necessary to a fair trial, and final determination of the questions involved.' It will be observed that no particular method of amending the petition is pointed out; that no specified steps are essential as a prerequisite to the allowance of such amendments.

The record in this case shows that the amendment to the petition, of which plaintiff in error complains, was made with leave of court 'first had and obtained.' Besides, the record indicates what probably amounted to a waiver of the objection, if one existed, to the time and manner of permitting and making such amendment, for it recites the fact that respondent was allowed to traverse the matter thus introduced into the pleading. Had this been an ordinary civil action, and had no waiver occurred, the objection in this particular might have been a good one. But we are of opinion that the whole matter was largely discretionary with the court, and there was no such abuse of discretion as calls for interference.

The question of respondent's ownership of the premises over which the ditch was sought to be constructed, through this amendment and the traverse of the averment therein, became a subject of controversy; but his possession of these premises was admitted, and the nature of the proceeding remained the same. If he was surprised, and desired time to procure proofs on the subject of ownership of the land, it was not too late to have asked for a reasonable continuance; had such a request been made, we cannot presume that it would have been denied. The question of respondent's interest or estate in the land was a proper one for consideration in awarding damages; if he did not hold title thereto, and had instituted no steps to obtain the same from the government, he was not entitled to damages for the taking thereof. But both court and counsel adopted the theory that although the land over which the ditch was to be constructed belonged to the United States, and although respondent had acquired no homestead or pre-emption right therein, yet if he had placed improvements thereon, he would be entitled to compensation for injury to such improvements occasioned by constructing the ditch. These improvements were regarded as property, and within the purview of the constitutional and statutory inhibition against the damaging of private property without adequate compensation. Section 15 of article 2, and section 7 of article 16, Const. Colo.; section 237 of the present Code of Procedure. See, also, section 2339, U.S. Rev. St. This federal statute expressly awards the right of way upon public lands for such ditches as the one under consideration, where, as with us, such right of way is recognized by local customs, laws, and judicial decisions. It then concludes with the following language:

'But whenever any person in the construction of any ditch or canal injures or

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