Tew v. Powar

• Decision Date: 04 June 1906
• Citation: 86 P. 342,37 Colo. 292
• Parties: TEW v. POWAR.
• Court: Colorado Supreme Court

86 P. 342

37 Colo. 292

TEW v. POWAR.

Supreme Court of Colorado

June 4, 1906

Rehearing Denied July 2, 1906.

Appeal from District Court, Logan County; E. E. Armor, Judge.

Action by H. N. Powar against William Tew. From a judgment awarding a temporary injunction, defendant appeals. Affirmed.

Brown & Hays, for appellant.

George E. McConley, for appellee.

MAXWELL J.

Plaintiff below, appellee here, claimed a prescriptive right to the use of a lateral ditch for irrigating purposes across the land of defendant, appellant here, and prayed a temporary writ of injunction restraining defendant from interfering with plaintiff's right to enter upon the land of defendant to repair, maintain, and use the lateral, and that the temporary writ, upon final hearing, be made perpetual. The temporary writ was granted. The answer joined issue upon the material allegations of the complaint and averred special matters in defense, which were met by a reply. October 19, 1901, a decree was rendered which, in substance, found the issues in favor of defendant, dissolved the temporary injunction refused the perpetual injunction, and dismissed the action at the costs of plaintiff. November 8, 1901, the court of its own motion issued a stay of execution until further order of the court. November 18, 1901, the court rendered a decree based upon findings, denying, however, the perpetual injunction prayed. Material parts of the finding and decree are:

'The court finds from the evidence, in addition to the findings of the jury, that this action was instituted during the irrigating season, at which time the use of said lateral was imperatively necessary for the irrigation of plaintiff's crops. That for some time prior to the interference with the improvement and use of said lateral by the plaintiff the defendant had acquiesced in its use by him, and had also used the same jointly with plaintiff. That the temporary injunction issued against the defendant for interfering with the plaintiff in the improvement, use, and enjoyment of said lateral at the time when said injunction was issued was warranted, as the court finds by the facts and was necessary to protect plaintiff in the rightful use, of said lateral for and during the irrigating season of 1900 and pending the final hearing of this cause.'

'The court finds that the plaintiff was warranted in suing out said injunction to protect him in the use and enjoyment of said lateral for irrigating this crops during the irrigating season named, and pending the final hearing of this cause, but not for the purpose of enforcing a perpetual right to the use thereof; the plaintiff's claim to a prescriptive right having failed.'

'It is further considered by the court, and so adjudged and decreed, that inasmuch as the temporary injunction was rightfully sued out, that justice requires a division of the costs herein, and that therefore the defendant have judgment for his costs laid out and expended, except those directly occasioned by the suing out of the temporary injunction aforesaid, and that the costs in said cause be taxed accordingly. The costs hereby adjudged against the defendant shall consist of those occasioned by the issuance of the injunctive writ, and order therefor, and service thereof, and for such other matters as are properly taxable to that branch of the case, not including any witness fees.'

'It is further considered by the court, and so adjudged and decreed, that the defendant and all persons claiming by, through, or under him, his employés, agents, and others, desist and refrain from in any manner interfering with, impairing, or obstructing the lateral in controversy in this cause, located on the land of defendant, for the period of 90 days from the filing of this decree, to the end that the plaintiff, his grantors, his legal representatives, or assigns, may have opportunity to institute condemnation proceedings, if so advised, for a right of way across defendant's land along the course of said lateral, and have the same remain intact for use the coming irrigation season, in the event that such right of way be awarded.'

Appellant insists that the sole issue presented by the pleadings was the prescriptive right of plaintiff to the lateral in controversy; that the court in both decree, having found that plaintiff had failed to establish a prescriptive right to the lateral, was not entitled to a perpetual injunction, and so decreed, and therefore that portion of the second decree to the effect that the temporary injunction was rightly granted was not within the issue presented by...