Thompson v. Blanchard, 15491.
| Decision Date | 24 February 1947 |
| Docket Number | 15491. |
| Citation | 178 P.2d 422,116 Colo. 27 |
| Parties | THOMPSON v. BLANCHARD et al. |
| Court | Colorado Supreme Court |
Rehearing Denied March 17, 1947.
Error to District Court, Garfield County; John R. Clark, Judge.
Action by J. D. Blanchard and another against Lewis R. Thompson executor of the estate of Hattie Holland, deceased, to determine water and ditch rights and for an injunction wherein the defendant filed a cross-complaint. To review a judgment for the plaintiffs, the defendant brings error.
Judgment affirmed.
Frank Delaney, of Glenwood Springs, for plaintiff in error.
Allyn Cole, of Glenwood Springs, for defendants in error.
This action was brought by defendants in error who alleged ownership of certain land, together with easement for an irrigation lateral and water from the Carbondale ditch to the amount of five-tenths of a cubic foot per second of time necessary for use thereon. There was further allegation of interference by defendant; threatened continuance thereof irreparable injury and lack of legal remedy, with prayer for injunction. Answer included general denial, estoppel, statutes of limitation, ownership by defendant, abandonment and purchase by defendant for value and without notice.
Upon the first trial of the cause, plaintiffs introduced evidence consisting primarily of recorded conveyances to establish their chain of title, and at the close of their case defendant interposed a motion for a nonsuit on the ground that the evidence was insufficient to entitle plaintiffs to any relief and that the only purpose of the proceeding was to obtain a permanent injunction designed to settle and adjudicate a title which was in dispute and not free from doubt. The trial court sustained this motion for the reason that it was necessary to determine the extent of plaintiffs' water right and the location of the ditch right of way therefor, and the court was of the opinion that such rights could not be determined in the injunction suit.
The judgment of dismissal was reviewed by this court in Blanchard v. Holland, 106 Colo. 147, 103 P.2d 18, 139 A.L.R. 159. Upon considering the ruling of the trial court and the documentary chain of title offered in evidence in support of plaintiffs' case, this court held, in substance: (1) That plaintiffs' documentary evidence was sufficient to establish prima facie proof of record title in them to a water and ditch right sufficient for necessary use on their land; (2) that such proof was sufficient to make proper the adjudication of title to the water and ditch right in the injunction proceeding; and (3) that upon such title being established, the determination of the amount of water required for such use and the location of the easement for its carriage are incidentals to the main issue of title, which the court may determine from the evidence. Accordingly, we reversed the judgment and remanded the cause for retrial.
Following remand and after revision of pleadings, the case was tried to the court which found in favor of plaintiffs and by its decree established the amount of water requisite for irrigation of plaintiffs' land and the location of the lateral ditch in which plaintiffs were entitled to easement of carriage thereof, and made permanent the injunction against interference by defendants.
The first points specified and now urged as error are concerned with the holding of the trial court as to the extent to which our former opinion was res judicata on the retrial. The reversal of the judgment entered on motion for nonsuit with remand for trial was not an adjudication on the merits, and all issues were open for determination on a second hearing. Plains Iron Works Co. v. Haggott, 72 Colo. 228, 210 P. 696. The general rule is that statements made by a reviewing court in reversing judgment upon a nonsuit at end of plaintiff's case must be construed in the light of the question Before the reviewing court, of whether plaintiff had established a prima facie case, and not as the law of the case on subsequent trial.
However in this case we have an unusual situation involved in that the reversal of the former judgment was based on documentary evidence. The trial court at the first hearing held that it had no jurisdiction for the reason that it could not adjudicate a disputed and doubtful title in an injunction suit. We reversed that holding on the ground that the documentary evidence offered by plaintiffs constituted prima facie proof of record title. Such determination was necessary for our decision of the case and, it being a matter of deduction from documentary evidence, it was peculiarly appropriate for determination by an...
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Bijou Irr. Dist. v. Empire Club, s. 89SA302
...P.2d 477, 478 (1966) (quiet title action over land, mineral rights and water rights brought in district court); Thompson v. Blanchard, 116 Colo. 27, 28, 178 P.2d 422, 423 (1947) (action involving title to land, water rights and easement for an irrigation lateral brought in district court). ......
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Humphrey v. Southwestern Development Co.
...district court's decision regarding chain of title to land, mineral rights and water rights in quiet title action); Thompson v. Blanchard, 116 Colo. 27, 178 P.2d 422 (1947) (review of district court's decision regarding chain of title which established ownership of land, water, and an easem......
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People v. Roybal
...in our first opinion that the written statement was to be suppressed, and therefore it is the law of the case. Thompson v. Blanchard, 116 Colo. 27, 178 P.2d 422 (1947). To suggest the contrary is to attempt through a circuitous route to nullify the full force and effect of the appellate dec......
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Saunders v. Spina
...by the trial judge and a judgment will not be reversed because of the admission of such evidence, * * *.' Cf. Thompson v. Blanchard, 1947, 116 Colo. 27, 178 P.2d 422; International Service Union Co. v. Espinoza, 1937, 100 Colo. 299, 67 P.2d 497; Klein Land Co. v. Thompson, 1936, 99 Colo. 42......