People ex rel. Dunbar v. South Platte Water Conservancy Dist., s. 18471

• Decision Date: 22 June 1959
• Docket Number: 18396,Nos. 18471,18398,s. 18471
• Citation: 139 Colo. 503,343 P.2d 812
• Parties: PEOPLE of the State of Colorado, upon the relation of Duke W. DUNBAR, Attorney General of the State of Colorado, Relator, v. SOUTH PLATTE WATER CONSERVANCY DISTRICT, a quasi-municipal corporation, and William E. Eppinger, B. R. Fernald, Al Hattendorf, S. F. Bales, J. D. Mayhoffer, Mills E. Bunger, Ernest Ramstetter, Neil Rosener, W. E. Scott, George L. Anderson, Rollo Shaklee, Howard P. Bunger, Henry G. Mitze, Charles H. Starks, J. William Wells, O. C. Gossett and Alfred Krogh, as Directors of the said South Platte Water Conservancy District, Respondents. Virginia W. HILL et al. v. J. David MAYHOFFER et al. Charles W. MacLEAN et al. v. J. David MAYHOFFER et al.
• Court: Colorado Supreme Court

Page 812

343 P.2d 812

139 Colo. 503

PEOPLE of the State of Colorado, upon the relation of Duke

W. DUNBAR, Attorney General of the State of

Colorado, Relator, v. SOUTH PLATTE WATER CONSERVANCY DISTRICT, a quasi-municipal

corporation, and William E. Eppinger, B. R. Fernald, Al

Hattendorf, S. F. Bales, J. D. Mayhoffer, Mills E. Bunger,

Ernest Ramstetter, Neil Rosener, W. E. Scott, George L.

Anderson, Rollo Shaklee, Howard P. Bunger, Henry G. Mitze,

Charles H. Starks, J. William Wells, O. C. Gossett and

Alfred Krogh, as Directors of the said South Platte Water

Conservancy District, Respondents.

Virginia W. HILL et al. v. J. David MAYHOFFER et al.

Charles W. MacLEAN et al. v. J. David MAYHOFFER et al.

Nos. 18471, 18396, 18398.

Supreme Court of Colorado, En Banc.

June 22, 1959.

Rehearing Denied Sept. 14, 1959.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John B. Barnard Jr., Asst. Atty. Gen., for relator, M. O. Shivers, Jr., Englewood, John M. Dickson, Denver, of counsel.

David J. Miller, Melvin Dinner, Robert G. Smith, Greeley, Wilbur M. Alter, Denver, for respondents.

Holland & Hart, Robert P. Davison, Denver, for objector, Lawrence C. Phipps, Jr.

J. F. Little, Robert H. Kiley, Denver, for objectors, John W. Jurgensen, and others.

Clayton & Gilbert, Greeley, for Northern Colo. Water Conservancy Dist.

F. T. Henry and Louis Johnson, Colorado Springs, for City of Colorado springs.

Bentley M. McMullin, Aurora, Orrel A. Daniel, Leonard H. McCain, Brighton, George M. Graber, Arvada, Joseph J. Dolan, Boulder, C. Charles Buchler, Englewood, Karl R. Ahlborn, Greeley, John S. Hough, Longmont, R. Paul Brown, Fort Lupton, amici curiae.

MOORE, Justice.

Three cases pending in this court have been consolidated for disposition. They involve the legality of a water conservancy district allegedly created under the provisions of chapter 149, article VI, C.R.S.1953.

The statutory procedure for the creation of such a district involves the filing of originating petitions. These must contain a fixed number of signatures of owners of lands of certain types, a description of the boundaries of the intended district, and a statement of the objects and purposes of the proposed district. The proponents have the right to select the district court of any county having land within the boundaries described in the original petitions as the forum for the proceedings. The court thus selected sets a hearing date in accordance with the statute, and publication of notice is made. These original petitions may be opposed by the filing with the court of protesting petitions which must be signed by a certain number of owners of lands of certain types, and by the filing of 'objections' which are by statute confined to a denial of the truth of the allegations set forth in the original petitions. The time for the filing of protests and objections is fixed by the statute, which also sets the time for filing supplemental originating petitions.

The three cases which are here consolidated arose in the following manner:

First. Petitions seeking the creation of the water conservancy district here in question were filed; protesting petitions were filed in due time; a hearing on the sufficiency of the protesting petitions began June 19, 1956, and ended April 25, 1957; the trial court adjudged said protesting petitions to be insufficient and ordered the same dismissed. Certain protestants thereupon caused writ of error to issue directed to said judgment of dismissal. This action is No. 18396 in this court.

Second. Other interested parties filed 'objections' traversing the truth of the allegations of the orginating petitions. The hearing thereon commenced June 18, 1957, and ended August 15, 1957, on which date the lower court dismissed said objections. Certain of these objection parties who were not represented by counsel in the trial court thereafter initiated writ of error proceedings in this court in cause No. 18398.

Upon the dismissal of the 'objections' on the date last above mentioned, the trial court forthwith conducted a hearing concerning the sufficiency of the originating petitions, and immediately upon the opening of this hearing, and before any evidence was taken, counsel for the proponents filed a written motion to amend the originating petition. This motion contained the following:

'Come now the petitioners herein by their attorneys and subsequent to the dismissal of the protesting petitions as by order of Court dated April 25, 1957, provided, and subsequent to the presentation by the objectors of testimony in support of the objections and denials of allegations of the petition generally, all as provided by the Court's order of January 22, 1957, as amended February 5, 1957, and the objectors herein having put on evidence on their main case, the petitioners having put on their testimony, and the objectors having put on their rebuttal, and the Court having called for the appearance of all counsel and all present in Court who were objecting to the creation of the proposed district, and the Court having entered all appearances of counsel and the objectors having been dismissed as by order herein provided, the petitioners now rise and file herewith the following motion:

'1. The petitioners call up all motions for amendments to the petitions heretofore filed herein.

'2. The petitioners herein move to amend the name of the proposed district and the caption in this case to read, 'South Platte Water Conservancy District' by striking in the petition and in all subsequent pleadings the words, 'Blue River'.

'3. The petitioners herein further move that the petition herein be amended by adding after the description of the boundaries of the district following the paragraph designated Weld County, the following exceptions: * * *.'

At this point the motion identified all property within the boundaries of the cities of Aurora, Englewood, Golden, Littleton and the Town of Cherry Hills Village, together with all the property owned by each individual objector represented by counsel, except Adee, et al. The motion requested exclusion of all of this property solely on the ground as stated therein, 'that it is to the interest of the petitioners that the above-described property be omitted from the district.'

Counsel for proponents made the following statement to the court:

'Mr. Miller: If the Court please, these motions are substantially in accordance with the written pleadings of the Objectors whose names and whose descriptions we have read. They grant the complete relief requested by those persons.

'It is our position that we, under the powers of the Water Conservancy Act and under the authority of the cases construing it and under the general law with which your Honor is familiar and which has been cited in previous briefs before this Court, have the right to amend the petition. The Court has a right to grant the amendment and the Objectors named, being all those who have resisted in any manner the creation of the district to this time, having been by the motion excluded, upon allowance of the motion their interest in the matter terminates.'

Attorneys for some of the objectors protested the granting of the motion and asked for a continuance, stating to the court that the motion took them by surprise and that they were not prepared to respond thereto; whereupon counsel for proponents stated:

'On the basis of the record we respectfully submit, Your Honor, that it is to the interests of the petitioners that the expense and continued delay in litigation be terminated by giving those who have properly appeared all relief which they ask, and that they then be requested to depart hence, having won their victory.'

The trial court granted the motion made by proponents. The effect of this action by the court was to reduce the assessed valuation of the area included within the district from 441 million dollars to approximately 323 million dollars. Following the granting of the written motion counsel for proponents agreed that the lands owned by Adee, et al. should likewise be withdrawn from the district, and the court so ordered. (Adee, et al. are eighty-two individuals owning lands within the district who, at the beginning of the proceedings, requested exclusion of their lands. The request then made was denied.) The exclusion of the lands of all individuals and municipalities then represented by counsel who opposed the creation of the district, resulted in the last phase of the proceeding in the trial court being heard ex parte. The trial court found the originating petitions to be sufficient, and on August 16, 1957, entered a decree forming the district. The following day the directors of the district were appointed.

Third. On November 13, 1957, the attorney general, pursuant to C.R.S.1953, 149-6-7, initiated quo warranto proceedings in this court, cause No. 18471, the purpose of which was to test the legality of the formation of the district and the right of its directors to hold office.

It is argued on behalf of the district that cause No. 18396 should be dismissed for the reason that the named plaintiffs in error are no longer in court; that all of their property was omitted from the district, as requested by them, and they were dismissed from the action; that there is no appearance anywhere in the record for anyone other than those individually and specifically named; that there was no appearance for a class in the trial court and a new party 'the class' may not be introduced into the record on writ of error. We deem it unnecessary to do other than to say that these arguments directed to cause No. 18396 are well founded, and the writ of error in that action is dismissed.

With reference to cause No. 18398, it is argued that the writ of error should be dismissed for the reason that all plaintiffs in error were in default in the trial court; that none of them appeared in the trial court; that a final judgment was entered on April...