Koch v. Whitten

• Decision Date: 03 August 1959
• Docket Number: No. 18135,18135
• Citation: 342 P.2d 1011,140 Colo. 109
• Parties: George H. KOCH and Virgie R. Koch, Plaintiffs in Error, v. J. E. WHITTEN, State Engineer, F. C. Snyder, Division Engineer, Gayle Petterson, Water Commissioner; and Casper Lee Seybold, Water Commissioner, Defendants in Error.
• Court: Colorado Supreme Court

Page 1011

342 P.2d 1011

140 Colo. 109

George H. KOCH and Virgie R. Koch, Plaintiffs in Error, v. J. E. WHITTEN, State Engineer, F. C. Snyder, Division Engineer, Gayle Petterson, Water Commissioner; and Casper Lee Seybold, Water Commissioner Defendants in Error.

No. 18135.

Supreme Court of Colorado, En Banc.

Aug. 3, 1959.

Rehearing Denied Aug. 31, 1959.

Boyle & Witty, Salida, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John B. Barnard, Jr., Asst. Atty. Gen., for defendant in error.

DOYLE, Justice.

Plaintiffs in error instituted this action in the District Court of Custer County against J. E. Whitten, State Engineer; F. C. Snyder, Division Engineer; Gayle Patterson, Water Commissioner; and Casper Lee Seybold, Water Commissioner seeking to enjoin the said defendants from 'demanding or taking' certain waters which were alleged in the complaint to originate as springs on the lands of the plaintiffs, and seeking an injunction against interference by defendants with plaintiffs' use of these Waters 'on their lands.'

A temporary restraining order was issued, but was later dissolved. Defendants filed various motions following the overruling of which an Answer and Counterclaim was filed on their behalf. Defendants also moved for an order adding as party defendant the owner of a certain adjudicated priority which they claimed was in conflict with the alleged rights of plaintiffs. This latter motion was granted and plaintiffs were ordered to summon the owner, Noble Austin. The necessary pleadings were thereupon served upon Austin who in turn moved to dismiss. Plaintiffs confessed this motion and it was granted as to him.

Based upon an alleged admission of the plaintiffs in confessing Austin's motion to dismiss, defendants then moved for judgment on the pleadings. The court granted this motion and it is for the purpose of reviewing this judgment that the case is before us on writ of error. Plaintiffs also seek review of an order denying their motion to strike certain portions of the counterclaim.

The complaint alleges that certain springs originate on the lands of the plaintiffs and have been used by them and their predecessors in interest for a period of 'upwards of sixth (60) years'; that the flow from the springs is picked up and distributed by the George Koch Ditch and that the excess from these sources flows by 'unnamed tributary * * * into Texas Creek'; that the unnamed tributary does not flow into Koch Branch of Brush Creek from which Gove Ditch, Arkansas River Priority No. 238, takes its water; that the defendants have ordered the plaintiffs to allow the above described spring water to flow into the unnamed tributary in order to fill the Gove Ditch priority; that the water from the springs does not flow into Koch's Branch of Brush Creek; that the plaintiffs have a right to the use of the water arising on their lands by reason of their beneficial use and application for a period of 60 years. Allegations that plaintiffs lack a plain, speedy and adequate remedy at law and that irreparable injury will result also appear and the prayer is for an injunction against the named defendants.

The answer denies most of the allegations of the complaint, but admits that a decree was issued on February 3, 1894, the Gove Ditch Decree No. 2 on Koch's Branch of Brush Creek, awarded the date of August 31, 1880. It further alleges that the headgate of the Gove Ditch was located on the same source of supply as that from which plaintiffs 'are diverting water,' and that the Gove Ditch is entitled to the waters in question and that plaintiffs are diverting them in violation of lawful orders of the defendants.

In the counterclaim it is alleged that the plaintiffs, during the irrigating season of 1955, diverted water from the natural stream from which the Gove Ditch has its source of supply in violation of the lawful orders of the defendants and that during the irrigating season of 1955 orders of the defendant Snyder required delivery to the Arkansas River of all water and streams tributary thereto, except delivery of water to ditches with superior decreed rights, for the benefit of owners with decreed rights in the Arkansas River and its tributaries making a demand therefor. It is further alleged that these demands will continue and that the orders made by the defendants are for the benefit of owners of decreed rights and that these owners would be adversely affected by any decree entered by the court on the plaintiffs' complaint. It is prayed that the appropriate orders be entered requiring joinder of interested parties and that injunctions be issued against the plaintiffs restraining them from interfering with the defendants in the administration of the waters in question and enjoining the plaintiffs from diverting water except during such times as the decreed rights are filled or no demand for water therefrom is made as certified by the defendants.

As pointed out above, the motion for judgment on the pleadings was based upon the contention that the plaintiffs by confessing Austin's motion to dismiss, admitted that they had no meritorious claim against the owner of the Gove Ditch. The motion continued and concluded:

'6. That, having admitted the lack of any right to complain of diversions out of this public stream by the owner of the Gove Ditch, the said ditch being senior to that of plaintiffs, the plaintiffs have admitted by their pleadings and confession of the said motion that they have no right to relief herein; and, hence, that judgment should be entered in favor of the defendants and against the plaintiffs dismissing the complaint herein, for costs, and for the relief prayed for in defendants' counter claim.'

The 'Order and Judgment' of the trial court simply held that the motion was 'well taken' and 'should be and it is hereby granted.' An order was entered dismissing the complaint and dispensing with a motion for new trial. Presumably, therefore, the court's judgment was based upon an admission which allegedly flowed from plaintiff's confession of Austin's motion to dismiss.

Plaintiffs contend that the court erred in granting the motion of defendants for judgment on the pleadings; that the allegations of their complaint (which must for purposes of this motion be accepted as true) disclosed the infringement and continued threat to the exercise of valid rights not in conflict with adjudicated priorities. They also argue that the trial court erred in its refusal to strike portions of the defendants' counterclaim. The position of the defendants is that Austin was an indispensable party to the litigation; that plaintiffs' rights, if any, were against Austin and that once plaintiffs admitted that they were not in contention with Austin, nothing remained for the court to determine and consequently the order granting judgment on the pleadings was correct. 1. The question whether defendants' motion for judgment on the pleadings was meritorious.

A specific requisite to the granting of a motion for judgment on the pleadings is that the moving party shall be entitled to judgment under the admitted facts without regard to what the findings might be on the facts with respect to which issue is joined. Rice v. Bush, 16 Colo. 484, 27 P. 720; Moore v. Kline, 26 Colo.App. 334, 143 P. 262; Hoover v. Horn, 45 Colo. 288, 101 P. 55; Vanatta v. McFerson, 97 Colo. 576, 52 P.2d 399.

Where material issues of fact are present which can only be determined from the testimony, the motion for judgment on the pleadings is improper. Cache La Poudre Irrigating Ditch Co. v. Hawley, 43 Colo. 32, 95 P. 317, 320, wherein the Court said:

'* * * After this ruling plaintiffs filed a motion for judgment on the pleadings, which was denied. That this ruling was correct is apparent from the questions already determined. By the answers of the water officials and the petition of intervention material questions of fact were in issue which had to be determined from the testimony before a judgment could be rendered. In this state of the pleadings a motion for judgment thereon could not be entertained.'

In North Poudre Irr. Co. v. Hinderlider, 112 Colo. 467, 150 P.2d 304, 309, the plaintiffs filed a motion for judgment on the pleadings as a result of the filing by defendant water officials of an 'enigmatic pleading, labeled a disclaimer.' The trial judge there denied the motion on the ground that the judgment could not finally determine the rights of the parties in the subject matter in controversy and, secondly, on the...