O'Reilly v. Noxon

• Decision Date: 05 December 1910
• Citation: 113 P. 486,49 Colo. 362
• Court: Colorado Supreme Court
• Parties: O'REILLY v. NOXON.

113 P. 486

49 Colo. 362

O'REILLY v. NOXON.

Supreme Court of Colorado, En Banc.

December 5, 1910

Error to District Court, City and County of Denver.

Action by Peter J. O'Reilly against Franklin F. Noxon. From a judgment sustaining a demurrer to an amended complaint plaintiff brings error. Affirmed.

Plaintiff in error seeks to have reversed a judgment which sustained a demurrer to an amended complaint filed by him in the court below. The suit was brought to divest from Noxon the right of way for a reservoir site lying within the South Platte Forest Reserve in Park county, and vest the same in O'Reilly, on the ground that through an error in law the Secretary of the Interior accepted and approved, or caused to be accepted and approved, an application for the reservoir site made by Noxon, and rejected an application therefor made by O'Reilly, when, in the absence of that error, he would have approved, or caused to be approved, O'Reilly's application, and rejected Noxon's.

The complaint as amended, alleges, in substance, that O'Reilly, on February 25, 1898, made in application for right of way for the reservoir site under the provisions of sections 18 to 21, inclusive, of the act of Congress approved March 3, 1891, c. 561, 26 Stat. 1101 (U. S. Comp St. 1901, p. 1570), and the same was received by the register of the Land Office at Leadville, filed, and, without action thereon, transmitted to the Commissioner of the General Land Office at Washington for consideration by the Department that prior thereto, on February 3, 1898, Noxon made an insufficient application for a substantial portion of the same reservoir site; that on June 20th the Commissioner rejected both applications, for the reason that a prior application of the Tarryall Reservoir & Ditch Company, for the same site, had been approved February 4, 1893; that both Noxon and O'Reilly appealed from that decision to the Secretary of the Interior; that O'Reilly, 'in support of his appeal, filed affidavits alleging and showing that the Tarryall Company had never done anything in or about said reservoir looking to its construction or utilization save the original location and survey thereof; that it had wholly surrendered and abandoned said location since 1895; and that no stock of said company had ever been subscribed for allotted, or issued; that such showing and allegations were not controverted'; that Noxon in support of his appeal, 'filed affidavits tending to show that in 1895 he had purchased all the rights, franchises, property and effects of the Tarryall Company, and had taken possession of this reservoir site in February of that year with the consent of the Tarryall Company; that in pursuance of said alleged purchase he had commenced preliminary work on said reservoir January 15th, 1898, and that such work and possession had since continued'; that November 2, 1898, the Secretary found that Noxon was the transferee of the Tarryall Reservoir & Ditch Company, and that although the latter company had failed to build its reservoir within the five years required by the 20th section of the act, the transfer carried with it whatever right of way had been acquired by the company under the Act, and held that Noxon had the right 'to file a new map of location, to operate only upon such portions of the public lands as are free from any claim or right at the date of the approval of the new map of location,' and thereupon sustained the rejection of O'Reilly's application, and instructed the Commissioner to examine the map submitted by Noxon as to its conformity with the regulations adopted by the Department to carry into effect the act of March 3, 1891, and report upon it with recommendations.

The complaint further alleges that, upon application of O'Reilly, a review of that decision was allowed. It then recites that, 'September 2, 1899, the present Secretary, after reviewing the history of the case and the previous rulings and decisions, and after considering the validity of the corporate existence of the Tarryall Reservoir & Ditch Company, and of Mr. Noxon's claims as its transferee,' made certain declarations, which are set forth, to the effect that, if the Tarryall Company had and maintained a legal corporate existence, any rights it may have acquired by the approval of its reservoir site were transferred by the sale to Noxon; and if, on the other hand, the company had no legal corporate existence, and for that reason could not acquire any right under the act of March 3, 1891, by reason of which the approval of a reservoir site to it was of no operative effect, and if such approval could be wholly disregarded without a judicial, legislative, or executive declaration to that effect, it would, nevertheless, leave Noxon as the first applicant for the site; that while it will be assumed that the Secretary of the Interior had before him sufficient evidence of a right to appropriate water upon the part of the Tarryall Company at the time of the approval of its site, which right may have passed to Noxon on his purchase, there was no showing that such right of appropriation, dependent as it must be upon the laws of Colorado, was an existing one at the time of the filing of Noxon's application. Directions then follow to the Commissioner to examine the application and accompanying map submitted by Noxon, to ascertain whether they were in conformity with departmental regulations, and Noxon was required to make a prima facie showing that he was possessed of such a right to appropriate and divert waters as would enable him to use the proposed reservoir site for the purposes named in the statute, upon which questions O'Reilly was to be given an opportunity to be heard, and the former departmental decision was recalled, and this substituted in its place.

The complaint also alleges, substantially, that immediately thereafter, in attempted compliance with that decision, Noxon filed with the Commissioner copies of certain maps and statements 'as filed in 1891 by the Tarryall Company,' and 'by Noxon as his application of February 3, 1898,' which are alleged to be identical; numerous affidavits and other documents set forth in substance only, and then continues, 'that upon this showing, and without giving plaintiff any opportunity to controvert the same, the Commissioner promulgated the decision of the Secretary, * * * and therein assumed and declared that said Noxon had made complete and satisfactory showing of the necessary water rights; that as to the map filed by him February 3, 1898, the Commissioner said: 'An examination of Noxon's map shows that the same was not prepared in conformity with the regulations of February 20, 1894, in force at the date of filing''--setting forth the particulars wherein it failed to conform with the regulations in force, and directed that if Noxon should prepare and file a new map to conform in all respects with the requirements of an inclosed circular, his application be approved. It is stated that the circular inclosed by the Commissioner was one embracing certain rules and regulations in the amended complaint set forth as promulgated and published by the department. It then alleges, 'that no new map of said location and survey was made by or in behalf of said Noxon as required or directed by the Commissioner, or at all,' and that Noxon failed in every particular required by the regulations contained in the circular; 'that, on the contrary, commencing October 5th and ending November 4th, 1899, said Noxon caused a new and independent survey to be made of said reservoir site,' much greater in area and capacity than that covered by his former application, and on December 20, 1899, filed duplicate copies thereof properly prepared, with affidavits and certificates, together with the field notes, in the Leadville Land Office, 'as a new and independent application for right of way for said last-described reservoir site, under said act of Congress'; that after certain corrections as required by the Commissioner, they were finally submitted to him for approval. It is then alleged:

'That April 27, 1900, the Commissioner rendered his decision in the premises as follows: 'After reciting the history of the contest to the Secretary's decision on review, September 2, 1899, and quoting the Secretary's instructions as above set forth, * * * he proceeds: On September 5th and 20th the attorneys for Noxon filed evidence of water right which was considered in office letter of September 27, 1899, promulgating the decision of the Department dated September 2, 1899. The evidence mentioned included a certificate of the county clerk and recorder of Park county, Colorado, that the plat of the Tarryall Reservoir & Ditch Company was filed in his office May 19, 1891, and that the plat of the Tarryall Reservoir was filed by Franklin F. Noxon on October 28, 1898. Also an affidavit by the State Engineer to the effect that the Tarryall Reservoir & Ditch Company filed a plat of its reservoir site in his office on August 29, 1891, together with other papers as required by the laws of Colorado; and that Franklin F. Noxon on October 22, 1898, filed in his office a plat of the Tarryall reservoir site and other papers, the latter filing being identical with the former, and both complying fully with all the requirements of the statutes of the state of Colorado. Under the Secretary's decision, the only issue now to be determined is whether Noxon has such a water right as will enable him to use the proposed reservoir site for the purposes as mentioned in the statute. As to the requirement that the maps should be accompanied by proof that the plans and purposes of the projectors have been regularly submitted and provided in accordance with the local laws and customs governing the use of water

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