Tynon v. Despain

• Decision Date: 17 February 1896
• Citation: 43 P. 1039,22 Colo. 240
• Court: Colorado Supreme Court
• Parties: TYNON v. DESPAIN et al.

43 P. 1039

22 Colo. 240

TYNON v. DESPAIN et al.

Supreme Court of Colorado

February 17, 1896

Appeal from district court, Jefferson county.

Action by Benjamin Despain and others against James Tynon. Judgment for plaintiffs, and defendant appeals. Affirmed.

To this action, as originally instituted, there was but one party plaintiff, who sued in his own behalf and for the benefit of all others interested with him. Before the issues were made up, however, those jointly interested were made, by order of the court, parties plaintiff. The averments of the complaint as the action was thus tried, are to the effect that the plaintiffs were the joint owners and in possession of the Despain irrigating ditch, situate in the county of Jefferson which was constructed in the year 1874, and since that time has been continuously used by plaintiffs for the purpose of irrigating their lands; that in the year 1890, in the spring season of the year, and while the crops upon the lands of plaintiffs were needing water, the defendant broke down a portion of the ditch, placed therein a box which allowed the water to escape, and so interfered therewith as to cause the water which the ditch otherwise would have carried to overflow and waste over the adjoining lands, and prevented the full and sufficient flow of the water therein to irrigate the lands of the plaintiffs. The injury to plaintiffs' crops and the ditch, as it is said, is $5,000. To the complaint an answer was filed, containing: First. A general denial. Second. A defense interposed by way of counterclaim wherein it is alleged that the defendant is the owner and in possession of certain lands in Jefferson county over which the ditch in question was built; that while the defendant was the owner and in possession the plaintiffs forcibly and against his will entered upon the lands and constructed the ditch, and since that time have forcibly and against his will operated and maintained the same, to his injury; and that plaintiffs have repeatedly, during the six years then last past, forcibly and against the will of the defendant broken into and entered upon defendant's lands, and enlarged the ditch, and interfered with and obstructed defendant's flumes and ditches, and otherwise damaged him, and willfully maliciously, and riotously torn down and removed from their ditch a bridge which the defendant, as was his right, had erected over the said ditch, and upon his own premises, for his own convenience. It is further alleged that the ditch was without any proper or uniform grade, and by reason of its maintenance upon the premises, and the aforesaid willful and forcible acts of the plaintiffs, the defendant has sustained damages in the sum of $10,000, judgment for which he prays. To this answer there was a replication denying such affirmative matters, and by a supplemental replication there are three separate replies to the defenses interposed, the first of which is a plea of the statute of limitations; the second, an equitable estoppel; the third, a plea of adverse possession. A demurrer to such new matters, set up in the replication on the ground that they were insufficient to constitute a reply to the affirmative matters set up in the answer, was overruled by the court. Upon the issues thus joined there was a trial to the court before a jury, which returned a verdict in favor of the plaintiffs, assessing their damages at $15. The court refused to submit to the jury the issue as to damages to the crops of the plaintiffs, because there was no joint ownership thereof,--this claim for such damages having been inserted in the complaint as originally framed by the single plaintiff,--but the only question submitted was as to the injury of the common property of the plaintiffs, viz. the ditch, by reason of the alleged wrongs of the defendant. A motion for a new trial was overruled by the court, and a judgment upon the verdict was rendered in favor of the plaintiffs, from which the defendant appealed to this court.

A. H. De France, for appellant.

Morrison, De Soto & Macon, for appellees.

CAMPBELL J. (after stating the facts).

The numerous errors assigned may be discussed under two general heads:

1. Many of the assignments pertain to rulings of the court excluding the offer of the defendant to prove the capacity of the ditch at the time of the alleged trespasses, and the lack of uniformity in its grade. This offer was predicated upon the notion that, if originally permission from the owners of the servient estates to build a ditch was obtained, this gave to its builders the right to maintain and operate a ditch only of the size originally constructed, and of a uniform and reasonable grade; but that if, thereafter, without express permission so to do, these ditch owners enlarged its capacity, or departed from a uniform grade, these acts could be set up as a defense to a cause of action by the ditch owners based upon injuries to the ditch committed by the defendant after such enlargement or change of grade was made. Such evidence is not proper under the general denial, for that denies the right of the plaintiffs to maintain any ditch upon the land. If, in any event, it could be material in this action, it was necessary for the defendant, by a proper affirmative defense, consisting of new matter, to set it up Certainly it could be made available only by such a defense, expressly or impliedly admitting the original right to build the ditch, but denying the right to make an enlargement or change the grade, and showing that such changes resulted to the defendant's injury. As this was not done, the court properly excluded the evidence offered, particularly as there was not coupled with such offer a claim that such changes or enlargements added to the burdens of defendant, or in any way injured him.

For another reason this evidence was inadmissible. If the defendant might prevent plaintiffs from carrying in the ditch water beyond its original capacity, still he could not interfere with their right to use the ditch up to that limit; and when, as in this case, the same act of the defendant which was employed to restrict the quantity of water also infringed plaintiffs' right to use the ditch for any purpose, an action for such injury accrued to plaintiffs, which is not barred or abated by their act in enlarging the capacity of the ditch or changing its grade.

2. There remains for consideration the principal question in the case, about which all other assignments of error may be grouped. The title of the land now belonging to the defendant, across which plaintiffs claim this right of way for the ditch, was in the United States government at the time the ditch was constructed, in the year 1874. Then, also all of these lands, except what is referred to in the evidence as the railroad tract, had been filed upon, either under the homestead or pre-emption acts of congress, long after the year 1866, and were in the possession of the occupying claimants. Patents issued upon these entries in the years 1875 and 1887. The railroad tract was part of the grant of the federal government to the Denver Pacific Railway Company, which thereafter, and before patent, was acquired by the Union Pacific Railway Company, under the acts of congress approved respectively July 1, 1862, July 2, 1864, July 3, 1866, and March 3, 1869. These acts are commonly known as the 'Pacific Railroad Acts.' See 12 Stat. 489; 13 Stat. 356; 14 Stat. 79; 15 Stat. 324. To the building of the ditch across all of these lands except the railroad tract the occupying claimants gave their consent in consideration of the benefits which they considered the ditch for agricultural purposes would be to their holdings. No express consent was given for building across the railroad tract, for it was then unoccupied. No question, until about the time of the alleged trespasses of the defendant, has ever been raised by any of the owners of occupiers of these lands as to the plaintiffs' right to a ditch over the premises; and from the time of its construction until said trespasses the ditch was continuously maintained and operated by the plaintiffs with the knowledge, acquiescence, and consent of the defendant and his grantors; and defendant himself at one time expressly recognized the right of the owners of the ditch to maintain the same by an agreement in writing to pay, and by paying, five dollars for the use during one season of a certain quantity of water conveyed through the ditch for irrigating his land. It is true that at the trial an offer was made by the defendant to show that he objected to any enlargement of the ditch, and did not recognize that plaintiffs had any right to make any alteration therein, but this testimony as to enlargement, as we have elsewhere...