Montrose Canal Co. v. Loutsenhizer Ditch Co.

• Decision Date: 16 November 1896
• Citation: 48 P. 532,23 Colo. 233
• Parties: MONTROSE CANAL CO. et al. v. LOUTSENHIZER DITCH CO. et al.
• Court: Colorado Supreme Court

48 P. 532

23 Colo. 233

MONTROSE CANAL CO. et al. v. LOUTSENHIZER DITCH CO. et al.

Supreme Court of Colorado

November 16, 1896

Error to district court, Montrose county.

Action by the Montrose Canal Company and others in behalf of themselves and other occupants of land and appropriators of water by means of the canal against the Loutsenhizer Ditch Company and others appropriating water by means of the ditch to establish priority of water rights. Judgment for defendants on demurrer to complaint, and plaintiffs bring error. Affirmed.

Sherman & Twitchell and Frank C. Goudy, for plaintiffs in error.

Black &amp Catlin and Stuart & Murray, for defendants in error.

PER CURIAM.

This is an action brought by the Montrose Canal Company and the other plaintiffs in error, in behalf of themselves and other users and appropriators of water through its canal to restrain the Loutsenhizer Ditch Company, and all persons using water through its ditch, and W. J. Toland, water commissioner of district No. 41, from diverting or preventing certain waters of the Uncompahgre river from flowing into the Montrose canal, predicating their right to such relief upon an alleged priority to such waters to the extent of 481 cubic feet per second of time, for the purpose of irrigation, and aside from such priority, the right to 50 cubic feet per second of time for domestic use. It appears, inter alia, from their complaint, that on the 14th day of November, 1888, an adjudication of the priorities of water rights in water district No. 41, and of the ditches taking water from the Uncompahgre river, was had, wherein a priority of 48 cubic feet of water per second of time was decree to the Loutsenhizer ditch in advance of and prior to any water being allowed to plaintiffs' ditch; and that the defendant company has ever since made claim to and taken from said stream that amount of water. To this complaint defendants demurred, upon the grounds, among others, that there was a misjoinder of parties plaintiff and defendant, and that the prior adjudication constituted a bar to the maintenance of the present action. The court below sustained the demurrer and, the plaintiffs electing to stand by their complaint, judgment was rendered dismissing the action. From this judgment plaintiffs prosecute this writ of error.

The principal questions presented by this record have been determined by this court in decisions rendered since the commencement of this action. The ruling of the court below upon the ground of misjoinder of parties plaintiff and defendant is sustained by the decision in Farmers' Independent Ditch Co. v. Agricultural Ditch Co., 22 Colo 513, 45 P. 444. It is therein held that, by reason of the number of consumers under ditches of this character, it would be impracticable to make them parties to a proceeding like the one before us; and that the ditch company itself is the proper party to maintain the action, it being trustee for its stockholders and consumers. The court said: 'It necessarily follows from what has already been said that the plaintiff company has such an interest as will enable it to maintain this action, and it is unnecessray either to unite with it its stockholders or those who are receiving water through its ditch, or make the users of water under the defendant ditch or its stockholders parties defendant. A contrary construction would practially defeat the ends of justice, and close the courts to appeals from ditch companies which may be unlawfully and injuriously deprived of water to which they are entitled.' The right to maintain this action notwithstanding the prior adjudication of priorities between the respective ditches under the acts of 1879 and 1881 was also determined adversely to plaintiffs in error in the case of Louden Irr. Canal Co. v. Handy Ditch Co., 22 Colo. 102, 43 P. 535, and Boulder & Weld County Ditch Co. v. Lower Boulder Ditch Co., 22 Colo. 115, 43 P. 540. In the former case it was held that, unless the former proceeding was opened in the manner and within the time provided in the act, it was res adjudicata; at least in so far as it fixes the priorities of those who were parties thereto, and participated in such proceeding. In the second case, the court, discussing the sufficiency of the plea of res adjudicata predicated upon a decree entered in such proceeding, held that it was good, and that it determined and settled the quantity of water to which the parties thereto were entitled; and that, being in full force...