Woodco v. Lindahl

• Decision Date: 01 April 1963
• Docket Number: No. 20156,20156
• Parties: WOODCO, a partnership and John D. Wood, Jr., and Floyd R. Wood, Plaintiffs in Error, v. E. W. LINDAHL and June Lindahl, Defendants in Error.
• Court: Colorado Supreme Court

Page 234

380 P.2d 234

152 Colo. 49

WOODCO, a partnership and John D. Wood, Jr., and Floyd R Wood, Plaintiffs in Error, v. E. W. LINDAHL and June Lindahl, Defendants in Error.

No. 20156.

Supreme Court of Colorado, En Banc.

April 1, 1963.

Martin P. Miller, Patricia W. Wotkyns, Denver, for plaintiffs in error.

Perricone & Perricone, Gaspar F. Perricone, Denver, for defendants in error.

McWILLIAMS, Justice.

In their complaint the Lindahls alleged inter alia, that:

1. They were the owners in fee of certain land in Jefferson County, which land though described with particularity was for the sake of convenience labeled as Parcels A, B, C, and D, that to the south and west of this property was a pond and that a ditch ran from the pond to the 'high point' on their land;

2. On February 1, 1949 'the owners of the land upon which said pond and ditch were situated deeded to the plaintiffs [the Lindahls] the right to take from the said pond water sufficient for the reasonable irrigation of the land owned by the plaintiffs, together with a right of way or easement for the use and maintenance of the existing ditches';

3. On February 1, 1949, long prior thereto, and continuously since that date, the said water stored in said pond was carried and conducted through said ditch into and upon plaintiffs' land, and used and consumed thereon';

4. On February 2, 1960 'the defendant partnership [Woodco] acquired title to property upon which the aforementioned right of way or easement is located'; and

5. On or about November 10, 1960 Woodco 'wrongfully, unlawfully and without right tore up and covered up the said ditch and * * * stopped the flow of water from said pond through said ditch to plaintiffs' land'.

The Lindahls asked for damages from Woodco in the amount of $3,000 for its allegedly tortious misconduct and also sought an order that Woodco 'repair and replace the damaged ditch.'

Woodco initially filed a motion to dismiss 'for failure to join an indispensable party'. This motion did not explain why said party was 'indispensable', and in fact did not even identify the missing party. This motion was denied, whereupon Woodco filed its answer. In this answer Woodco denied each and every allegation in the Lindahl complaint, and then affirmatively pled the statute of frauds, the statute of limitations, laches, and the doctrines of equitable estoppel and adverse possession.

Upon trial various deeds, or certified copies of deeds, were introduced which established the following:

1. On February 1, 1949 the Garmans, who then owned all the land now owned by the Lindahls and Woodco, and its assign, conveyed by special warranty deed to the Lindahls a portion of the land described by the Lindahls in their complaint, this deed conveying certain described land 'together with all water and ditch rights appertaining thereto. Grantors hereby quitclaim to the said grantees a right to take from the pond situated on land owned by the grantors to the south and west hereof water sufficient for the reasonable irrigation of the land hereby conveyed, together with a right of way or easement for the use and maintenance of existing ditches';

2. The aforementioned deed was filed for record with the office of the clerk and recorder for Jefferson County on February 14, 1949;

3. On May 16, 1949 the Garmans conveyed by warranty deed to one McDonald the land now owned by Woodco and its assign, this conveyance excepting 'all existing and granted rights of way';

4. The aforementioned was filed for record with the recorder on May 20, 1949;

5. On May 18, 1949 the Lindahls conveyed by quitclaim deed to McDonald all of their 'right to take water from a pond as described in that certain Special Warranty Deed' executed and delivered by the Garmans to the Lindahls on February 1, 1949, and on that same date McDonald then conveyed by quitclaim deed to the Lindahls 'a right to take and use water from a certain pond situate on a portion of the property described in Book 626 at page 122 of the records of the clerk and recorder's office of Jefferson County, Colorado. The grantor in this deed reserves * * * a first and prior right * * * and the grantees in this deed are granted a subordinate right to take and use water reasonably necessary for the normal irrigation of land owned by them'; and

6. Those last mentioned deeds were properly filed in the office of the clerk and recorder for Jefferson County on May 20, 1949.

The evidence also established that on February 24, 1960 Woodco by warranty deed received title from the Lantows to certain described realty which was covered and included in the earlier warranty deed from Garmans to McDonald, executed and delivered on May 16, 1949, although the deed to Woodco, unlike the deed from Garmans to McDonald, did not except 'all existing and granted ditch rights of way'.

Woodco apparently acquired this property for the purpose of development and resale. In any event some time in the fall of 1960 Woodco caused this land so acquired to be graded and cut for roads, and in so doing it 'tore up and covered the ditch' through which the Lindahls carried water from the aforementioned pond to their land.

Upon trial it became evident that Woodco had since sold to a church known as 'Living Waters' a parcel of their land lying immediately to the west of the Lindahl property and immediately to the east of property still owned by Woodco. So, as of the date of trial, the physical facts were that the pond was still at least partially on the land owned by Woodco, that the ditch from the pond to the Lindahl property led from the pond across the Woodco property and then onto and across the land conveyed by Woodco to Living Waters, and then onto the Lindahl property, and that the ditch was cut in two places by a county road, once on Woodco's property and once on that now owned by Living Waters.

The trial court held that Woodco intentionally destroyed this ditch through which the Lindahls carried water from the pond to their land and awarded damages in the amount of $200. Also the trial court ordered Woodco 'to renew the ditch up to the property line of the Living Waters'. By the present writ of error Woodco seeks reversal of this judgment.

Woodco contends that the judgment must be reversed because the trial court erred in two particulars:

1. In denying Woodco's motion to dismiss for failure to join an indispensable party which was interposed both 'before and during the trial'; and

2. In denying Woodco's motion to strike the allegations in the complaint concerning the tract of land described as Parcel B.

It is deemed to be...