Robinson v. Clauson

• Decision Date: 18 April 1960
• Docket Number: No. 18242,18242
• Citation: 351 P.2d 257
• Parties: Howard ROBINSON, Plaintiff in Error, v. Leslie L. CLAUSON, Lysle B. Clauson, Helmer Nelson, and Mildred Nelson, Defendants in Error.
• Court: Colorado Supreme Court

Page 257

351 P.2d 257

142 Colo. 434

Howard ROBINSON, Plaintiff in Error, v. Leslie L. CLAUSON, Lysle B. Clauson, Helmer Nelson, and Mildred Nelson, Defendants in Error.

No. 18242.

Supreme Court of Colorado, En Banc.

April 18, 1960.

Frank Delaney, Glenwood Springs, for plaintiff in error.

Parkison & Stewart, Carl W. Fulghum, Glenwood Springs, for defendant in error.

HALL, Justice.

The parties appear here in the same order they appeared in the trial court. We will refer to them as plaintiff and defendants, or by name.

In dispute is the ownership of and right to use 50 cubic feet of water per minute of time evidenced by priority No. 77 in Water District No. 45, Garfield County, Colorado.

In 1888 in a general water adjudication proceeding, the District Court in and for Garfield County by its decree awarded to the Louis L. Reynolds Ditch priority No. 47 for 40 cubic feet of water per minute of time, and by virtue of the first enlargement of said ditch priority No. 77 for an additional 50 cubic feet of water per minute of time, which decree provided that only 15 of the total 90 feet awarded said ditch was made absolute; the balance of 75 feet was conditional on the future actions of the party entitled to said water in increasing his feasible acreage for irrigation. This decree further provided that the water was to be diverted from Divide Creek through the Louis Reynolds Ditch for the irrigation of lands (not described) and for the benefit of the party lawfully entitled thereto. Louis Reynolds was the claimant to the ditch and the water evidenced by priorities numbered 47 and 77 and was at the time of the decree the owner of 160 acres of land located downstream from the point of diversion of the Louis Reynolds Ditch, and which lands are now owned by the defendants. At the time of the decree no one other than Reynolds had any interest in or claim to the Louis Reynolds Ditch priority No. 47 or priority No. 77.

In 1949 plaintiff acquired title to lands adjacent to Divide Creek. A portion of said lands, alleged to be 134 acres, lying downstream from defendants' lands, was susceptible to irrigation from water diverted from Divide Creek and carried through the Louis Reynolds Ditch as enlarged after the 1888 decree. Plaintiff owned waters diverted from said Divide Creek and carried through said ditch, which waters are evidenced by priorities 118B, 118C and 166N. These priorities are of much later date than Nos. 47 and 77. Defendants claim no interest in 118B, 118C or 166N.

Plaintiff makes no claim of title to the waters evidenced by priority No. 77 by any instrument of conveyance from Reynolds, the appropriator, or from any of his grantees.

Plaintiff's claim of ownership is predicated on:

1. Over 30 years of open, exclusive, adverse use thereof by his predecessors in title.

2. A decree entered by the District Court of Garfield County in 1940, case No. 3334, wherein one W. L. Raley (predecessor in title to plaintiff) was adjudged to be the absolute owner of an individed 3/4 interest in the Louis Reynolds Ditch, all of priority No. 77, and the lands now owned by plaintiff.

3. A verbal agreement entered into in 1912 between the predecessors in interests of the parties hereto whereby it was agreed that plaintiff's predecessors in interest should own and be entitled to a 3/4 interest in the Louis Reynolds Ditch and a 3/4 interest in all waters awarded to said ditch, being priorities Nos. 47-77-118B-118C and 166N, the remaining 1/4 to be the property of defendants' predecessors in interest, which agreement it is alleged was fully complied with from 1912 until 1943.

The defendants claim the water evidenced by priorities Nos. 47 and 77 as remote grantees of Reynolds, the original appropriator, which said priorities, it is alleged, have been made absolute by decree dated December 5, 1938, in case No. 3253 in the District Court of Garfield County. Defendants also claim that they and their predecessors in the have ever since 1888 applied the waters evidenced by said priorities to the irrigation of the lands for which originally appropriated. Defendants allege that the quite title decree entered in case No. 3334 is void and deny that there was any agreement for the division of waters as alleged by plaintiff. Defendants also plead several other defenses upon which we find it unnecessary to make any pronouncement.

At the conclusion of a three day trial, the court made detailed findings of fact, resolved the issues in favor of the defendants and dismissed plaintiff's complaint. The plaintiff then filed a motion requesting the trial court to make additional and amended findings in keeping with plaintiff's contentions. This motion was denied, and the plaintiff is here by writ of error seeking reversal.

The trial court found that plaintiff had failed to prove adverse use of the water evidenced by priority No. 77 as alleged by plaintiff. The evidence offered by plaintiff is in many respects vague and unsatisfactory, and not all of his evidence can be harmonized. Defendants' evidence is in sharp conflict with that of plaintiff. Understandably the trial judge in his memorandum of opinion stated that:

'The testimony concerning the use which had been made of the Louis Reynolds Ditch and its water priorities throughout the years and more especially of priority No. 77 in controversay is in irreconcilable conflict * * *.'

Such being the state of the evidence, the trial court properly found that the plaintiff's proof was inadequate to establish title by adverse use.

Plaintiff's claim that title to the waters evidenced by priority No. 77 was confirmed in W. L. Raley by the 1940 quiet title decree entered in case No. 3334 cannot be sustained. At the time of the filing of this action and at the time of the decree, one Cora Louthan was the record owner of the lands and waters now owned by the defendants Leslie L. Clausen and Lysle B. Clausen. She, for some unexplained reason, was not named as a party defendant. It is true the complaint named as defendants, in addition to those specifically named:

'All unknown persons who claim any interest in and to the subject matter of this action.'

Owners of record cannot be classified as unknown persons claiming an interest. The record owner is a known person. The blanket provision seeking to reach unknown persons is wholly ineffective to make Cora Louthan a party to the action. Not being a party, the decree in no manner affected her title.

At the time of the quiet title decree, the property now owned by the defendants Helmer Nelson and Mildred Nelson was owned by one John Anton Casper. In the quiet title action J. A. Caspar was named as a defendant and service had by publication. The defendants contend that the quiet title decree entered against J. A. Caspar had no effect...