Matson v. White

• Decision Date: 05 June 1950
• Docket Number: No. 16432,16432
• Parties: MATSON et al. v. WHITE et al.
• Court: Colorado Supreme Court

Page 864

220 P.2d 864

122 Colo. 79

MATSON et al. v. WHITE et al.

No. 16432.

Supreme Court of Colorado, en Banc.

June 5, 1950.

Rehearing Denied July 10, 1950.

B. O. Wheeler, Hyman A. Goodstein, Denver, for plaintiffs in error.

No appearance for defendants in error.

MOORE, Justice.

One Fred Harris owned Lots 25, 26, 27, 28, 29 and 30 in Block 42, Pleasant View Second Addition, Jefferson county, Colorado. A well was located on lot 27.

On August 22, 1947, Harris contracted to sell lots 28, 29 and 30 to defendants in error, who were plaintiffs in the trial court and to whom we hereafter refer as plaintiffs. The agreement was in the form of a receipt and option in which Harris agreed to convey said property 'together with all improvements thereon and the right to use water from a well on adjoining property at a cost for such water to be agreed upon.'

On February 26, 1948, the said Harris conveyed by warranty deed to Charles W. Matson and Emily H. Matson lots 25, 26 and 27 of Block 42 in said Addition. The Matsons were defendants in the trial court and are plaintiffs in error here. We will hereinafter refer to them as defendants. Simultaneously with the execution of the conveyance of lots 25, 26 and 27 to defendants, Harris and defendants entered into an agreement which provided that defendants, 'will furnish household water for improvements on the property owned by party of the second part [Harris], in consideration of the payment of $2.50 per month, as long as present well located on property owned by parties of the first part continues to operate and furnish water.' It was further provided in the agreement that, 'in case of any repairs that the respective parties shall pay their pro-rata share.'

On March 9, 1948, in consummation of the contract previously entered into between Harris and plaintiffs, a deed was executed and delivered by Harris, conveying lots 28, 29 and 30 to plaintiffs, but there was not incorporated in said deed, or in any manner mentioned, any right of Harris to use water from the adjoining property which Harris had sold to defendants on February 26, 1948. However, with delivery of the deed to plaintiffs Harris executed an assignment to them of the contract dated February 26, 1948, under which defendants had agreed to furnish household water 'for improvements on the property' owned by Harris. Said assignment was endorsed on the original agreement, and was in the following form:

'March 9, 1948

'For and in consideration of one dollar the receipt of which is hereby acknowledged, I hereby assign and set over to James Harrison White and Marjory E. White all my right and interest in and to the within contract.

'Wit.

Claude L. Cox

Fred Harris.'

The record does not disclose that defendants had any knowledge concerning the said assignment, nor is there anything which indicates a consent thereto.

It appears that from March 30, 1948, to September 16, 1949, defendants supplied water to plaintiffs for $2.50 per month, and during six weeks of the early summer of 1949, when the well was shut down for repairs, defendants purchased water from another neighbor and diverted it into plaintiffs' pipes in order thus to supply their needs. The repair work was necessitated by reason of a cavein which occurred when the well commenced pumping dry, and defendants drilled the well deeper at a cost of $295.48 in an attempt to get more water. However more water was not thus secured. Defendants then notified plaintiffs that, 'The supply of water in our well has become so low that it cannot furnish an adequate amount,' and that water could not be furnished them after September 15, 1949. Plaintiffs thereupon brought this action in which they prayed that defendants be restrained from shutting off the water supply, and they alleged that the plaintiffs 'by reason of a written agreement and otherwise have been given the right to the use of water from a well located and situate on Lot 27 above described; and that said agreement as aforesaid has been in existence since August 22, 1947; that the plaintiffs herein have exercised their rights under said agreement since August 22, 1947 * * *.' The defendants denied that plaintiffs had any continuing right to receive water from the well, and alleged that they had furnished water to plaintiffs on a monthly basis only under a verbal agreement with plaintiffs to supply water only so long as the well provided water in excess of defendants' own requirements.

The trial court entered findings, which are in part as follows:

'(a) That the plaintiffs are entitled to use of water from the well in question in this matter;

'(b) That the defendants shall supply the plaintiffs with water and are to promptly connect the aforesaid well and restore the use of water to plaintiffs as it heretofore existed.'

The trial court limited the consumption of water by the plaintiffs to 300 gallons per day, and ordered that plaintiffs install a water meter 'where the defendants may readily inspect and read such water meter,' and that plaintiffs pay to defendants $2.50 per month 'as rental for the use of water.'

As grounds for reversal defendants contend that there is no legal obligation on their part to furnish water to plaintiffs because: (1) There is no privity of contract between plaintiffs and defendants; (2) The assignment from Harris to plaintiffs is not binding upon defendants; (3) The right of Harris to use water from defendant's land was a personal right in Harris and did not 'run with the land'; and (4) That since, in the deed from Harris to plaintiffs there was no reference to rights in the grantees to receive water from the well on the adjoining lot, it was error to consider the provision relating to water which was contained in the original contract in consummation of which the deed was issued. Defendants further argue that the trial court erred in imposing conditions upon the parties which, in effect, 'constituted the drawing of a new contract by the court for the parties...