Rogers v. Nevada Canal Co.

• Decision Date: 07 June 1915
• Docket Number: 7989.
• Citation: 60 Colo. 59,151 P. 923
• Parties: ROGERS et al. v. NEVADA CANAL CO. et al.
• Court: Colorado Supreme Court

151 P. 923

60 Colo. 59

ROGERS et al. v. NEVADA CANAL CO. et al.

No. 7989.

Supreme Court of Colorado, En Banc.

June 7, 1915

Rehearing Denied Oct. 4, 1915.

Error to District Court, City and County of Denver; Hubert L Shattuck, Judge.

Action for injunction by the Nevada Canal Company and others against Joseph Rogers and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Hayt, Dawson & Wright, of Denver, for plaintiff in error South Park Land & Live Stock Co.

G. K Hartenstein, of Buena Vista, for all other plaintiffs in error.

Goudy Twitchell & Burkhardt and H. R. Kaus, all of Denver, for defendants in error.

WHITE J.

Upon the petition of the Nevada Canal Company and other ditch owners of decreed water rights in irrigation division No. 1, the division engineer thereof, the state engineer, and the water commissioner in water district No. 23 of the aforesaid irrigation division were enjoined and required to distribute water to the users entitled thereto in accordance with the decrees entered and existing in irrigation division No. 1, and the defendant ditch owners and water users in the aforesaid water district No. 23 were enjoined from diverting water from the natural streams in the district, otherwise than in accordance with the decrees therefor in the aforesaid irrigation division No. 1. They were likewise enjoined from interfering with the water officials in the distribution of the water in accordance with the decree therein, and from using the water as against the prior appropriations and rights of the plaintiff ditch owners, and, unless permitted so to do by the water officials, from interfering in any manner with the headgates of the ditches therein after the same had come under the control and supervision of, or been adjusted by, the aforesaid water officials, or their successors in office. The defendant ditch owners and water consumers in water district No. 23 prosecute this writ of error, claiming that they were and are injuriously affected in their substantial rights by the proceedings and decree in the premises.

The complaint alleges, substantially, that the water officials not consenting to become plaintiffs, were therefore made defendants, and that defendant water users, pursuant to an agreement or understanding among themselves, obstructed and resisted, and unless restrained would continue to obstruct and resist, the water officials in the discharge of their duties in the distribution of water in accordance with the decrees existing in irrigation division No. 1; that in defiance of the laws of the state and the decreed senior priorities of plaintiffs the defendant water users in water district No. 23 had for several years retained, and would continue to retain, the water of the natural streams in said district and distribute the same therein among themselves, when it was needed and required by plaintiffs further down the streams in the said irrigation division No. 1, and whose rights of appropriation were senior to the rights of defendant users, to the great damage and injury of the plaintiffs; that for many years prior to and including 1910 the water commissioner of water district No. 23 aided and abetted the defendant water users in such wrongful and unlawful diversion and use of the water in said district.

The South Park Land & Live Stock Company answered separately, and the other defendants jointly. The answers were, however, substantially the same. The alleged wrongful acts of the defendant water users were denied, and the claim made that the priorities of the defendant users were senior in time to the decreed priorities of plaintiffs, and that the water of the natural streams in water district No. 23 should be distributed in accordance with the decrees of that district, without regard to the decrees of priority in other water districts in the same irrigation division. It was charged that the water officials had not attempted to distribute water in accordance with the decrees mentioned in the complaint, but, on the contrary, entirely disregarded all decrees and closed down the headgates of various ditches in water district No. 23, in direct violation of all decrees and of their duty in the premises as such officers; that they closed the headgates of ditches belonging to defendants, while allowing other ditches, junior in time of appropriation both to plaintiffs and defendants, to remain open and to divert and use water, and permitted certain named reservoirs, that had no decreed appropriations whatsoever, to store water, while the headgates of various ditches, with decreed water rights belonging to defendants, were closed by said officials.

Two affirmative defenses and a cross-complaint were interposed by each group of defendants. The cross-complaint, also denominated a fourth defense, set forth substantially the same facts alleged in the answer proper, and likewise in that portion of the pleading designated a third and further affirmative defense. A demurrer to the cross-complaint was sustained. In the second affirmative defense it was alleged that certain sections of the statutes of the state provided and afforded a plain, speedy, and adequate remedy at law to the plaintiffs for the acts alleged to have been done by the defendants. A demurrer to this defense was sustained. In the third affirmative defense it was set forth that the water used by defendants under the respective ditches and priorities was applied wholly to land near the headgates of water district No. 23 during the months of May, June, and July only, and by reason thereof, and the nature of the soil and configuration of the land, the water returned to the natural streams within water district No. 23 above the point of diversion of the ditches owned by the plaintiffs, and that said use of water by the defendants, which had continued for 30 years without interruption, produced and would produce no injury or damage to the plaintiffs. The answer prayed that the water officials be restrained from closing the headgates of defendants in violation of their rights, and restrained from allowing water to be stored in the reservoirs having no decrees. The owners of these reservoirs were not parties to the suit. A replication was filed, and trial had, resulting in findings in favor of plaintiffs, and thereupon a decree entered as aforesaid.

The contentions upon which plaintiffs in error rely for a reversal of the decree may be stated as follows: (1) The plaintiffs had a plain, speedy, and adequate remedy at law, and therefore no cause of action was stated against the defendants, jointly or severally. (2) The court erred in sustaining the demurrer to the cross-complaint, or fourth defense, embodied in the answer. (3) The court erred to the prejudice of the defendants, plaintiffs in error, in its rulings on the admission and rejection of evidence, and the evidence was insufficient to support the decree. (4) The decree deprives plaintiffs in error of their respective property rights without due process of law, by requiring the water of the natural streams in water district No. 23 to be distributed in connection with, and as affected by, the decrees of all the water districts in the same irrigation division.

1. We think plaintiffs had no plain, speedy, and adequate remedy at law for the acts alleged to have been done to their injury by the defendants, and there was no error in sustaining the demurrer to the answer setting forth such defense. It is true an elaborate statutory method of establishing priorities to the use, and for the distribution of water thereunder, exists in this state, and that any water commissioner who fails to perform any of the duties imposed upon him by the statutes, and likewise any persons violating the water commissioner's order, relative to the opening or shutting down of headgates, or the using of water for irrigation purposes, are severally guilty of criminal offenses. Chapter 72, Rev. Stat. 1908. However, these statutes do not afford a complete and adequate remedy for the injury and loss occasioned by taking water from the streams by a junior appropriator, when it is needed and demanded by a senior appropriator of the same stream within the same irrigation division.

While the acts of a water officer in permitting the water to be so taken by a junior appropriator, and the taking thereof by the latter against the order of the former, are crimes, for the commission of which the people may prosecute the respective violators of the law, the result, nevertheless, constitutes a special injury to the senior appropriator. Acts of such character may be enjoined by a court of equity. People ex rel. v. Tool, 35 Colo. 225, 86 P. 224, 229, 231, 6 L.R.A. (N. S.) 822, 117 Am.St.Rep. 198. An injury to private property is in its nature special and peculiar, and constitutes a private wrong, though the act causing the injury may also be a disturbance or obstruction to the public right. The right of all the people to have the laws of society observed in no sense limits or curtails the right of the individual to maintain a suit in equity to restrain the threatened injury, the commission of which would certainly result in a private wrong to him by injuring or depriving him of his property rights.

2. Every material allegation embodied in the defendants' so-called cross-complaint, or fourth affirmative defense, was contained in other portions of the answer, and the sustaining of a demurrer thereto in no wise prejudiced defendants or either of them. Upon motion such matter might properly have been stricken, upon the ground that it was only repetition of that which was already pleaded.

Plaintiffs in error concede, and assert in their brief, that they neither asked nor sought relief against the owners of...