Louden Irrigating Canal Co. v. Handy Ditch Co.

• Citation: 43 P. 535,22 Colo. 102
• Parties: LOUDEN IRRIGATING CANAL CO. et al. v. HANDY DITCH CO. et al.
• Decision Date: 21 October 1895
• Court: Supreme Court of Colorado

43 P. 535

22 Colo. 102

LOUDEN IRRIGATING CANAL CO. et al. v. HANDY DITCH CO. et al.

Supreme Court of Colorado

October 21, 1895

Appeal from district court, Larimer county.

Actions by the Handy Ditch Company and another against the Louden Irrigating Canal Company and others to settle all priorities to the use of water from the Big Thompson river. There was a judgment for plaintiffs, and defendants appeal. Reversed.

Appellees brought separate actions in the district court, which were afterwards consolidated, and this appeal is taken from the decree rendered in the consolidated actions. The complaints are in the nature of bills in equity to adjudicate and settle all priorities to the use of water from the Big Thompson river. It is averred, in substance, that the defendants severally claim appropriations of water from the Big Thompson river prior in point of time to those claimed by the plaintiffs. Plaintiffs allege that said claims are excessive and are, in fact, junior to the priority of each plaintiff. To these complaints demurrers were interposed upon the following grounds: First, insufficient facts to constitute a cause of action; second, want of jurisdiction of the subject of the action. These demurrers were sustained as to the first ground and overruled as to the second. Thereafter amended complaints were filed. Among the defenses pleaded to the amended complaints are the following: First defense 'avers that irrigation district No. 4 did extend, at the time when said district was created by law, and hence hitherto has extended, and now extends, into the county of Boulder, for that a portion of the lands irrigated, from ditches taking water from the tributaries of the Big Thompson, have, from and including the time of the creating of said irrigation district, been situated within the limits of the said county of Boulder; and said irrigation district No. 4 extends into the three counties of Boulder, Larimer and Weld in said state, and no others. (2) That when said irrigation district No. 4 was created and established, and at all times since, and now, the district court in said irrigation district of the county in which the first regular term after the 1st day of December in each year soonest occurs has been the district court of Boulder county. (3) That heretofore, and on the 21st day of October, 1881, in a certain proceeding in said Boulder county district court entitled 'In the Matter of a Certain Petition for the Adjudication of the Priorities of Right to the Use of Water for Irrigation in Water District No. 4,' which said suit or proceeding was duly and regularly instituted and then pending in said court, pursuant to an act [here quoting title of act] approved February 23, 1881, Thomas R. Owen, Jr Esq., was duly and regularly appointed referee of said court in said matter, to whom was referred the statements of claim on file in the said matter, and the matter of taking evidence and reporting the same, making an abstract of the findings of same, and preparing the decree in said adjudication. And said referee in all respects performed his duties, as required by law and the order of court, and took all testimony offered in behalf of any party claiming an appropriation of water for irrigation in said irrigation district, and made report of the same, together with an abstract and findings upon the same, and prepared a decree in said adjudication. That thereafter, and on the 28th day of May, 1883, same being one of the regular juridical days of the May term, A. D. 1883, of said Boulder county district court, said matter came on duly and regularly for final hearing and adjudication upon the report of said referee, as well as upon the exceptions filed in said matter; and after hearing the same the court duly entered in said matter its final adjudication and decree, establishing the priorities of right to the use of water for irrigation in water district No. 4. That all parties interested had due and proper notice of all proceedings had in said matter, as well before said referee as before said court. That the plaintiff, as well as all of the defendants in this suit, were parties to said proceedings in said Boulder county district court, and entered their appearance therein, and made proofs of their priorities. That no appeal was taken from said decree by any party thereto, nor did any party sue out a writ of error to cause said decree to be reviewed by the supreme court; but that said decree is now in full force and effect. That since the date of said decree, hitherto, the waters flowing in the Big Thompson river, as well as in its tributaries, have been apportioned to the several ditches taking water therefrom, by the water commissioner of said water district, pursuant to said decree. And said defendant avers that by virtue of the premises and the statute in that behalf, the said Boulder county district court obtained, and ever since has retained, exclusive jurisdiction, for the purpose of hearing, adjudicating, and settling all questions concerning the priority of appropriations of water between ditch companies and other owners of ditches drawing water for irrigation purposes from said Big Thompson river or its tributaries, within the said water district, and all other questions of law and questions of right growing out of and in any way involved or connected therewith. Wherefore this defendant says that the district court of Larimer county has no jurisdiction of the subject-matter of this action.' A demurrer to this defense was sustained by the district court. Other defenses were interposed, but as the opinion of the court is in no way influenced by such defenses, they will not be further referred to.

The following provisions of the state constitution and statutes are necessary to a full understanding of the opinion of the court: 'The district court shall have original jurisdiction of all causes both at law and in equity.' Const. Colo. art. 6, § 11. 'For the purpose of hearing, adjudicating and settling all questions concerning the priority of appropriation of water between ditch companies and other owners of ditches drawing water for irrigation purposes from the same stream or its tributaries within the same water district, and all other questions of law and questions of right growing out of or in any way involved or connected therewith, jurisdiction is hereby vested exclusively in the district court of the proper county; but when any water district shall extend into two or more counties, the district court of the county in which the first regular term after the first day of December in each year shall soonest occur, according to the law then in force, shall be the proper court in which the proceedings for said purpose as hereinafter provided for, shall be commenced, by the entry of an order appointing a referee in the manner and for the purpose hereinafter in this act provided. Such court shall thereafter retain exclusive jurisdiction of the whole subject until final adjudication thereof is had, notwithstanding any law to the contrary now in force.' Sess. Laws 1879, p. 99, § 19. 'Nothing in this act or in any decree rendered under the provisions thereof, shall prevent any person, association or corporation from bringing and maintaining any suit or action whatsoever hitherto allowed in any court having jurisdiction, to determine any claim or priority of right to water, by appropriation thereof, for irrigation or other purposes, at any time within four years after the rendering of a final decree under this act in the water district in which such rights may be claimed. Save that no writ of injunction shall issue in any case restraining the use of water for irrigation in any water district wherein such final decree shall have been rendered, which shall effect [affect] the distribution or use of water in any manner adversely to the rights determined and established by and under such decree, but injunctions may issue to restrain the use of any water in such district not affected by such decree, and restrain violations of any right thereby established, and the water commissioner of every district where such decree shall have been rendered, shall continue to distribute water according to the rights of priority determined by such decree, notwithstanding any suits concerning water rights in such district, until in any suit between parties the priorities between them may be otherwise determined, and such water commissioner have official notice by order of the court or judge determining such priorities, which notice shall be in such form and so given as the said judge shall order.' Sess. Laws 1881, p. 159, § 34.

E. A. Ballard and H. N. Haynes, for appellants.

Willard Teller and A. H. De France, for appellees.

HAYT C.J. (after stating the facts).

After the district court had overruled a plea to its jurisdiction and a plea of res judicata, and before trial, the interposition of this court was sought by an application for the extraordinary remedy by prohibition. This writ was, however, denied, for the reason that the petitioners had an adequate remedy at law, by appeal or writ of error to the final judgment of the district court, in case such judgment should be against the defendants or either of them. People v. District Court of Pitkin Co., 11 Colo. 574, 17 P. 298. The questions of jurisdiction and of res judicata each involve a construction of certain provisions of our irrigation laws and for convenience may be considered together.

The argument of counsel in support of the judgment of the district court may be briefly summarized as follows: The present action is in the nature of a bill of peace, or an action of quia timet, and is quite analogous to an action to quiet title to real estate; that the action was permissible in this...