Stewart v. Stevens

• Citation: 15 P. 786,10 Colo. 440
• Parties: STEWART v. STEVENS.
• Decision Date: 18 November 1887
• Court: Supreme Court of Colorado

15 P. 786

10 Colo. 440

STEWART v. STEVENS.

Supreme Court of Colorado

November 18, 1887

Commissioners' decision. Appeal from district court, Douglass county.

J W. Horner, for appellant.

C C. Holbrook, for appellee.

MACON, C.

This suit was instituted by appellant, Izett Stewart, against appellee, Lewis G. Stevens, to restrain him from building a ditch upon and through certain lands of the former. A preliminary injunction was issued against appellee, but upon the final hearing it was dissolved and the suit dismissed. Complainant claimed title dating back to 1871, to the south half of the S.W. 1/4 of section 23, township 8, range 68, in Douglass county, Colorado, and title from 1875 to the S.W 1/4 of the N.E. 1/4, and the S.E. 1/4 of the N.W. 1/4, the N.E. 1/4 of the S.W. 1/4, and the N.W. 1/4 of the S.E. 1/4 in the same section, township, and range, the latter acquired from one John Jones; and that, without right or consent of plaintiff, defendant threatened and was about to enter upon said premises, and dig and excavate a large ditch; with other averments showing irreparable injury; and praying an injunction to restrain the alleged wrong. The preliminary injunction was allowed May 10, 1880. On August 10, 1880, defendant answered; admitting his purpose to enter upon the lands of plaintiff for the purpose of building the ditch thereupon, but alleged the grant of right of way from the plaintiff by deed dated April 12, 1872, which deed is in the words and figures following:

'Article of agreement, made and entered into this 12th day of April, A. D. 1872, between John Thomas, Albion Smith, Izett Stewart, John Lindsay, and Lewis G. Stevens, all residing at West Plumb Creek, in the county of Douglass, and the territory of Colorado. Whereas, we, the said John Thomas, Albion Smith, Izett Stewart, John Lindsay, and Lewis G. Stevens, do hereby mutually and severally agree to construct a ditch not less than two feet or more than four feet in width, to run through the several lands and farms as herein mentioned: John Thomas, S. 1/2 of N.W. 1/4, Sec. 26, T. 8 S., R. 68 W. Albion Smith, N. 1/2 of N.W. 1/4, said Sec. 26; Izett Stewart, S. 1/2 of S.W. 1/4, Sec. 23, said T. 8; John Lindsay, N. 1/2 of S.W. 1/4, and S. 1/2 of N.W. 1/4, and S.W. 1/4 of N.E. 1/4, said Sec. 23; Lewis Stevens, S.W. 1/4 of S.E. 1/4, Sec. 14, said T. 8. We also jointly and severally agree to bear our proportion of outlay and labor necessary for the completion and repairs of the said ditch, the same to be proportioned and regulated according to quantity of water required, and do hereby agree upon; namely: John Thomas' supply of water to be sufficient to irrigate ten acres of pasture land or equal thereto; Albion Smith's, ten acres; Izett Stewart's, twenty acres; John Lindsay's, sixty acres; Lewis G. Stevens', two hundred acres,--whenever a sufficient supply of water can be obtained; but whenever a deficiency of water, each one herein named, his heirs, executors, or successors, shall be entitled to his or their adequate proportion. The said ditch to be commenced on Upton J. Smith's land, S.W. 1/4 of Sec. 26, T. 8 S., of R. 68 W., and to be continued to Lewis G. Stevens' land, S.W. 1/4 of S.E. 1/4 of Sec. 14, said T. 8; management to be regulated by shares; ten acres to be considered one share. In testimony whereof, the parties hereto this and one other instrument of the same tenor and date, interchangeably set their hands and seals, this 12th day of April, 1872.

[Signed] 'JOHN THOMAS. [Seal.]

JOHN LINDSAY. [Seal.]

'ALBION SMITH. [Seal.]

LEWIS G. STEVENS. [Seal.]

'IZETT STEWART. [Seal.]

-- And by virtue of an oral agreement and understanding between the parties to said deed, prior to the execution of the same; the allegation as to which is as follows: 'That it was understood and agreed by and between such plaintiff and defendant and said other named persons that each and all of said perpersons, including said plaintiff, were to grant unto each other a right of way for said ditch through their respective lands, and that said plaintiff was to grant to said defendant a right of way for said ditch through his, said plaintiff's, land. That thereupon, in furtherance of said agreement, and in consideration of the benefit to be derived by each of said parties from the use of said ditch, a certain writing was made, executed, acknowledged, and delivered by and between the parties aforesaid, and recorded in the office of the clerk and recorder of Douglass county aforesaid.' Plaintiff's title to the land described in his complaint is not denied, but it is averred in the answer that defendant does not intend to enter upon any of the land of plaintiff except that included in his grant of the right of way, as found in the deed and oral agreement. Plaintiff filed his replication, and denied the oral agreement charged, and that the land through which defendant proposed to run the ditch in part was the same land described in the deed. The final hearing of the case came on in December, 1883, when the court dissolved the injunction, and dismissed the plaintiff's bill; from which decree plaintiff appealed to this court, and assigns 10 errors in the ruling of the court.

In our view of the case, it is not necessary or material to examine any of the assignments except the third and fourth. The third is that 'the court erred in holding that the paper marked 'Exhibit E' entitled the defendant to build the ditch therein mentioned, through land owned by the plaintiff and that acquired by the plaintiff after the execution of said paper marked 'Exhibit E,' and never owned by any of the parties to said agreement until acquired by the plaintiff.' It is obvious that, if it be conceded that the written agreement of April 12, 1872, amounts to a grant of the right of way for the ditch over and into lands therein described, it cannot be so extended as to embrace other lands not described therein, and to which the parties thereto had then no title. And by the testimony of the appellee himself, it is seen that the surveyed route of the ditch which he proposes to follow, if permitted to go on with the enterprise, passes over and through the N.E. 1/4 of the S.W. 1/4, the S.E. 1/4 of the N.W. 1/4, and the S.W. 1/4 of the N.E. 1/4, of section 23, being a distance, as described by him, of at least three-quarters of a mile, none of which land was the property of appellant in 1872, nor of any one of the parties to this agreement, but was, so far as the record discloses, the property of one John Jones, appellant's grantor. It is true, the written agreement describes the N. 1/2 of the S.W. 1/4 of said section, which includes the N.E. 1/4 of the S.W. 1/4 of said section, as the property of John Lindsay; but there is no evidence to support such claim, and as the burden of showing that such land was the property of said Lindsay on April 12, 1872, was upon the appellee, we must hold that, in the absence of such proof, the land was not Lindsay's when he signed said agreement. Hence the dissolution of the injunction, so far as it applied to these tracts of land last described, should not have been ordered, unless there was some other ground therefor de hors this agreement.

It is insisted by appellee that inasmuch as appellant remained silent from 1872 to 1880, while appellee continued the work on the ditch from 1873 to and including 1875, and bought and procured some lumber and timber for the ditch after 1875, he is estopped to dispute appellee's right of way through the land not described in the deed, as well as that described therein. The cases cited in support of this contention by appellee are not in point; the facts in this case failing to bring it within any of the rules enforced in those cases. In the first place, the deed which created the company, if it created any obligation upon the parties thereto, was an obligation to the company as a company and not to the members thereof as individuals. The enterprise was to be a joint enterprise, and not an individual one. It is not necessary to say what would have been the effect of the company's prosecuting the work and meeting with opposition on the part of appellant; because it is shown by both appellee and Hill, his witness, that every member of the company except appellee abandoned the enterprise after 1872, and declined to proceed further in it. From that time to 1880 appellee proceeded with the ditch alone, and while he says he was working for all, he fails to show that he had any authority to do so. He could not have bound the company for anything done by him without its authority, express or implied. He shows no express authority, and the idea of an implied one is clearly negatived by the fact of abandonment of the work by all the other members as early as 1873. If,...