Seven Lakes Reservoir Co. v. Majors

• Decision Date: 07 March 1921
• Docket Number: 9694.
• Citation: 196 P. 334,69 Colo. 590
• Parties: SEVEN LAKES RESERVOIR CO. et al. v. MAJORS.
• Court: Colorado Supreme Court

196 P. 334

69 Colo. 590

SEVEN LAKES RESERVOIR CO. et al. v. MAJORS.

No. 9694.

Supreme Court of Colorado

March 07, 1921

Error to District Court, Larimer County; Robert G. Strong, Judge.

Action by Sarah J. Majors against the Seven Lakes Reservoir Company and another. Judgment for plaintiff, and defendants bring error.

Reversed and remanded with directions to dismiss.

H. N. Haynes, of Greeley, and William V. Hodges and Roger H. Wolcott, both of Denver, for plaintiffs in error.

Ab. H Romans, of Loveland, and R. W. Fleming, of Ft. Collins, for defendant in error.

BAILEY J.

The suit is by Sarah T. Majors to recover for the destruction of and damage to her land, occasioned by defendants running a large volume of water into and through Dry Creek, a natural channel which crosses her property. Plaintiff had judgment for $2,750.00, and defendants bring the record here for review on error. The parties are referred to as they appeared below.

In 1906 the Seven Lakes company and one B. D. Sanborn, predecessor in interest of the defendant the Boyd Lake company, began to divert water from the Lake Loveland reservoir through Dry Creek to other of their reservoirs for storage and subsequent irrigation. It is claimed by plaintiff that the conveyance of such water through Dry Creek has cut a deep gulley, with precipitous embankments, which divides her land into two tracts, making them difficult of access, has washed away several acres and injured other land, damaged her irrigation ditch, and generally lessened the value of her property.

The parties entertain absolutely divergent views respecting their relative rights in the premises. It is contended by plaintiff that, having established her ownership of this channel, and an unlawful entry by defendants, who, as plaintiff claims, had the right of eminent domain, she may recover the value of the land destroyed and the damages to the residue, any time within twenty years after such entry. The defendants say that the action is in assumpsit, or on the case, and was barred by the six year statute of limitation as more than that period passed from the time the cause arose to the commencement of the suit.

It is admitted that defendants have used the channel in the manner and for the purpose alleged since 1906. The question to settle is whether, whatever claim plaintiff had was barred by the six year statute, section 4061, R. S. 1908. The portions thereof which have a bearing upon this case are as follows:

'The following actions shall be commenced within six years, next after the cause of action shall accrue, and not afterwards * * *

'Fourth--All actions of assumpsit, or on the case founded on any contract or liability, express or implied.

'Fifth--All actions for waste and for trespass upon land.'

In Roberts v. Northern P. R. Co., 158 U.S. 1, at page 11, 15 S.Ct. 756, at page 758 (39 L.Ed. 873), the court in discussing the effect of delay in such cases said:

'So, too, it has been frequently held that a landowner, knowing that a railroad company has entered upon his land and is engaged in constructing its road without having complied with the statute, requiring either payment by agreement or proceedings to condemn, remains inactive and permits them to go on and expend large sums in the work, he will be estopped from maintaining either trespass or ejectment for the entry, and will be regarded as having acquiesced therein, and be restricted to a suit for damages'--citing cases.

In Northern P. R. Co. v. Smith, 171 U.S. 260, 18 Sup. Ct. 794, 43 L.Ed. 157, the court quotes with approval from McAulay v. Western Vermont R. Co., 33 Vt. 311, 78 Am.Dec. 627, as follows:

'It is certain, according to the English decisions, that he [the landowner] cannot stop the work, and especially the trains upon the road, if he has, in any sense, for the shortest period, clearly given the company, either by his express consent, or by his silence, to understand that he did not intend to object to their proceeding with their construction and operation. * * * If there was then a waiver in fact, either express or implied, by acquiescence in the proceedings of the company, to the extent of not insisting upon payment as a condition precedent, but consenting to let the damages be and remain a mere debt, with or without a lien upon the roadbed, as the law may turn out to be, then it is impossible to regard the defendant * * * in the light of trespassers or liable in ejectment.'

The rule appears to be that actions like the one at bar are based either upon an implied promise to pay, or upon a liability under the constitution, providing that private property shall not be taken or damaged without compensation. U.S. v. Great Falls Mfg. Co., 112 U.S. 645, 5 S.Ct. 306, 28 L.Ed. 846; U.S. v. Buffalo Pitts Co., 193 F. 905, 114 C.C.A. 119; Snowden v. Ft. Lyon Canal Co., 238 F. 495, 151 C.C.A. 431.

This court and our Court of Appeals have repeatedly, either directly or impliedly, held that the six year statute of limitation applies to actions for damages where parties, having the power of eminent domain take possession of land and use it, with the knowledge of the owner, and he neglects to enjoin them, or fails to bring suit for damages within such statutory period, on the implied promise to pay when the facts justify such implication. Such non-action and neglect are held an acquiescence in such entry and use. These cases cover actions for lands taken as well as for consequential damages to lands not taken. Greeley S. L. & P. R. Co. v. Yount, 7 Colo.App. 189, 42 P. 1023; U. P. R. R. Co. v. Foley, 19 Colo. 280, 35 P. 542; U. P. R. R. Co. v. Benson, 19 Colo. 285, 35 P. 544; Middelkamp v. Bessemer Irr. Co., 46 Colo. 102, 103 P. 280, 23 L.R.A. (N. S.) 795; Stuart v. Colo. Eastern R. Co., 61 Colo. 58, 156 P. 152; Denver & Santa Fé R. Co. v. Hannegan, 43 Colo. 122, 95 P. 343, 16 L.R.A. (N. S.) 874, 127 Am.St.Rep. 100; Denver & Santa F. R. Co. v. Domke, et al., 11 Colo. 247, 17 P. 777.

It is contended that this suit is one affecting real estate, under our constitutional provision already referred to, but the object of the suit is clearly the recovery of the value of land destroyed, and for damage to adjacent land, nothing more or less. In the very nature of things it cannot be an action to recover possession of nor does it in any way affect title to land. In other words, it is a personal action, pure and simple. This is manifest, as defendants had a lawful right, under statutory provision, to use the channel of the stream for the purpose of carrying water, and if, in so doing, they destroyed certain, and injured other, land of plaintiff, an ordinary suit in damage is the natural and logical remedy, subject to the legal rules applicable thereto. The damage was a mere incident to the right the defendants had to so use the channel, and there was no such taking as is contemplated in eminent domain. Even though defendants may have had the right of eminent domain, a question under the circumstances of this case by no means free from doubt, but failed to exercise it, that fact in no way changes their legal liability, or the rights or remedies of the plaintiff. In discussing the effect of the failure of a corporation to exercise the right of eminent domain, it is said in 15 Cyc. 997:

'Statute or charter provision frequently fix the time within which the owner must move in order to avail himself of the remedy provided by statute for recovery of compensation, and the date from which, or the event upon the occurrence of which, the limitation begins to run. In the absence of some special statutory provision applicable thereto, the general statute of limitations applies to proceedings by the owner of the land condemned, and the general rule is that, as soon as the construction or operation of the improvement unreasonably abridges the enjoyment of

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