Travelers' Ins. Co. v. Childs

• Decision Date: 10 October 1898
• Parties: TRAVELERS' INS. CO. v. CHILDS.
• Court: Colorado Supreme Court

54 P. 1020

25 Colo. 360

TRAVELERS' INS. CO. v. CHILDS.

Supreme Court of Colorado

October 10, 1898

Error to Weld county court.

Action by Francis L. Childs, administrator, against the Travelers' Insurance Company and another, to quiet title in a water right. Judgment was for plaintiff, and defendants bring error. Reversed.

This action was begun in the county court of Weld county by Francis L. Childs, as administrator. Apparently, it was brought on the probate side of the court, for the initial pleading is styled a petition, and the party brought into court is called the respondent. The petition contains three causes of action, the first two of which are not involved here, and it is only the third with which this court is concerned. It alleges that Edward Hollister, the testator died seised and possessed of one 80-acre water right out of canal No. 2 in Weld county, being the right annexed to the west half of the northeast quarter of section 20, and that respondent claimed some right or interest therein adverse to the petitioner, but that the claim was without any right or basis for support. The petition further charges that for a series of six years the respondent wrongfully made use of the water right, to the damage of the petitioner in the sum of $1,200; and the prayer was that the respondent be ordered to set forth the nature of his claim, and that, upon final hearing, the water right be decreed to be in petitioner, and for damages for its use, and that the respondent has no interest therein. In the answer of respondent it appears that this water right, along with certain lands and certain other water rights belonging to Hollister, were by him, in 1883 conveyed to the Colorado Loan & Trust Company, as trustee, to secure the payment of his note to the Travelers' Insurance Company in the sum of $15,000; and it is charged in the answer that, on account of default in the payment of the note, the trust deed was duly foreclosed, and at the foreclosure sale all of the property described in the trust deed, including this water right, was bought by the respondent, and that he now owns and has possession of the same. It was further alleged that one Mary J. Packard claimed some interest in the water right adverse to both the petitioner and the respondent, and an order was asked that she be made a party. The order was granted, and Mrs. Packard came in, and by answer alleged that she was the sole heir at law of John H. Packard, her deceased husband, and that during his lifetime the said water right was deeded to him through divers mesne conveyances from Edward Hollister, and that at the time of filing her answer she was the owner and in possession of it. Upon the issues there was a trial to the court without a jury, which made findings of fact in favor of the petitioner, and gave judgment against the respondent company in the sum of $150, and entered a decree establishing the petitioner's right and ownership of the water right in question. The Travelers' Insurance Company and the respondent Mary J. Packard sued out a writ of error in this court to the judgment, and afterwards Mrs. Packard sold to the company all of her right in the subject-matter of the litigation, and by an order of the court, entered with the consent of the petitioner, the Travelers' Insurance Company alone prosecutes this writ of error.

Charles H. Toll, D. V. Burns, and Wm. R. Barbour for plaintiff in error.

James C. Scott and James E. Garrigues, for defendant in error.

CAMPBELL C.J. (after stating the facts).

It will be observed that this is a controversy over what the parties call a 'deeded' water right; that is, it passed from the original appropriator by a deed to Hollister. It would seem from some of the exhibits introduced in evidence that an arrangement existed between the canal company, the successor of the original appropriator, and a water-right consumer under the canal, that the latter might convey to the canal company his water right, and receive a certificate of stock representing his right to the use of water. Hollister, however, did not avail himself of this privilege. If we should assume, with the defendant in error, that the legal title was in Hollister at his death, free from the lien of any incumbrance, this action, in so far as its object was to get an adjudication of ownership, could not be maintained by the administrator. Under our decisions a water right is real estate, not personal property. Wyatt v. Irrigation Co., 18 Colo. 298, 33 P. 144. Counsel do not controvert this proposition, but seek to convert this into an action to determine to which of the parties the canal company should issue the certificate of stock. Such is not the object of the action, but in form and substance the petition is one to quiet title to real estate, and there is not a word in it about stock certificates. The water right being real estate, at once, upon his death, it passed to Hollister's heirs or devisees, subject only to the payment of his debts; and an action to quiet title, or to recover possession, does not lie at the instance of the administrator. For this reason alone the decree as entered must be reversed. It was proper, however, for the administrator to sue for rents, and his right to a recovery depends upon the ownership of the principal thing out of which the rent issues; and, in this view, we must ascertain whose property the water right is.

There is no serious dispute as to the facts, and upon the vital point in the case practically none at all. In brief, the facts are that this water right was included in a trust deed given by Hollister to the Colorado Loan & Trust Company, as trustee, to secure his note for $15,000 to the Travelers' Insurance Company. All parties concede this, and so the court expressly found. After this note became due, the company was pressing Hollister for payment, which he was unable to make. Having obtained a purchaser for a portion of the lands...