White v. Nuckolls

• Decision Date: 05 December 1910
• Citation: 112 P. 329,49 Colo. 170
• Parties: WHITE v. NUCKOLLS.
• Court: Colorado Supreme Court

112 P. 329

49 Colo. 170

WHITE v. NUCKOLLS.

Supreme Court of Colorado

December 5, 1910

Error to District Court, Pueblo County; John H. Voorhees, Judge.

Suit by Emma Tolle Nuckolls against Crum White. Judgment for plaintiff, and defendant brings error. Affirmed.

S Harrison White, for plaintiff in error.

Devine, Dubbs & Preston and H. P. Vories, for defendant in error.

GABBERT J.

The parties to this proceeding each claim priorities to the use of water from a natural stream known as 'Long Branch,' and the important question presented for the determination of the court below was which party had the prior right to the use of such water.

Defendant in error, plaintiff below, instituted an action to enjoin plaintiff in error, as defendant, from diverting and interfering with her use for domestic and irrigation purposes of 1 1/2 cubic feet of water per second of time from the stream in question. On filing the complaint, a temporary injunction was issued and served upon defendant, enjoining him from diverting the waters of the stream to the detriment of plaintiff pending a determination of the case upon its merits. Thereafter such proceedings were had as resulted (1) in adjudging the defendant guilty of contempt for violating the temporary injunction; and (2) on trial of the issues made by the pleadings judgment was rendered to the effect that plaintiff was entitled to the use of one cubic foot of water per second of time for domestic and irrigation purposes from the waters of Long Branch creek, in advance of the right of the defendant. The latter has brought the case here for review on error. The defendant filed a general demurrer to the original complaint and gave notice that an application would be made to dissolve the injunction based upon the demurrer. The demurrer was sustained, and leave granted to the plaintiff to amend her complaint, but the court refused to dissolve the injunction. It is urged that the court erred in refusing to dissolve the writ. The prevailing doctrine now is that, when a demurrer to a complaint upon which an injunction is issued is sustained, the court in its discretion may continue the injunction pending an amendment to the complaint. 2 High on Injunctions, § 1594; 10 Enc. Pl. & Pr. 983. There are authorities, also, holding that the injunction still stands, although the order granting leave to amend is silent as to its effect upon the injunction. High, supra. Aside from this, interlocutory orders on injunctions, even if erroneous, which do not prejudicially affect the substantial rights of the complaining party, do not justify the reversal of the final judgment. Dunne v. Stotesbury, 16 Colo. 89, 26 P. 333; Roberts v. Arthur, 15 Colo. 456, 24 P. 922; Carson Mining Co. v. Hill, 7 Colo.App. 141, 42 P. 678. And so, if it should appear that the judgment on the merits is correct, or that the court did not err in any of the proceedings had under the preliminary writ to the prejudice of defendant in the final adjudication, the question of whether or not the court erred in refusing to dissolve it is of no material moment.

Plaintiff filed an amended complaint within the time fixed by the court. Thereafter the defendant violated the injunction, and was cited for contempt. On hearing he was adjudged guilty, and a fine imposed. Counsel for defendant urges that because the demurrer had been sustained to the complaint on which the injunction was issued, the writ was of no further force or effect, and also contends that failure to obey a void writ is not contempt. Counsel for plaintiff suggests that these questions cannot be reviewed in connection with the final judgment, but are only reviewable in a special proceeding for that purpose. Waiving this proposition, we are of the opinion that the court did not err in adjudging the defendant guilty of contempt. As above stated, and for reasons there given, the injunction was still in force, and, although the complaint on which it was issued may not have stated facts sufficient to justify its issuance, it was not for that reason void. The case attempted to be stated by plaintiff belonged to a class in which the court could grant equitable relief, through injunctive process, and, although the complaint may not have stated facts sufficient to justify its issuance, it was not void, and a violation of its mandates was contempt. Tebbetts v. People, 31 Colo. 461, 73 P. 869.

Over the objection of the defendant, plaintiff was permitted to file a second amended complaint. This, it is urged, was error, for the reason that thereby an entirely different cause of action was stated from that originally pleaded. In the original complaint it was alleged that plaintiff diverted the waters of the stream through two ditches known as the 'Long Branch' and 'Hill'; that the water was diverted directly from the stream by the Long Branch ditch part of which was discharged into a reservoir from which it was taken by the Hill ditch. According to the averments of the second amended complaint, the water was wholly diverted by the Long Branch ditch. Because of this difference between the two complaints, it is contended that the cause of action was changed, and that from the testimony it appears the latter ditch was constructed after the commencement of the action, which is a different case from that originally stated. The testimony does not sustain this contention, but, even if it did, neither the second amended complaint nor the testimony shows that the cause of action was changed by the amended pleading. The ultimate question involved from the inception of the case was priority to the use of water from Long Branch creek. The ownership of the conduits through which the water was diverted from the stream was not in controversy. A mere change in the averments with respect to the channel through which plaintiff conducted her priority did not change her cause of action. Both complaints, though differing somewhat in their averments, were directed to the same ultimate fact, namely, the prior right of plaintiff to the use of water from Long Branch creek as against...