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Upon evidence of this nature the conclusion quiring process or notice. The controversy of the trial court was to the effect that reaching this court, the late Chief Justice Nichols was barred from having any priority Beck, speaking for the court declared: of right to the use of water adjudged in his “Property rights in water are as important, favor in this proceeding; but that he must as valuable, and as extensive as the broad rely upon the Wellman ditch for water to acres to be fertilized thereby." The rules irrigate his south-side lands, and that his requiring process or notice were upheld. south-side priority was merged in the priority Since that time this court has repeatedly of the Wellman ditch. The doctrines of held that priorities of right to the use of jointure, merger, res judicata, laches, includ. water are property rights. Such is the seting certain limitation statutes, are relied on tled doctrine in this state. See Union Colony to support these conclusions. See Act 1881, v. Elliott, 5 Colo. 381; Strickler v. City of pp. 156, 160, 88 26, 35. It is true, as we have Colorado Springs, 16 Colo. 61, 26 Pac. Rep. seen, that Nichols and others arranged 10 di- 313, and cases there cited. Also, Wyatt v. vert water for the irrigation of their several | Irrigation Co., 18 Colo. 33 Pac. Rep. farms through a single head gate, and so 144. Property rights in water consist not carried the water for a certain distance alone in the amount of the appropriation, through a ditch constructed and used by but also in the priority of the appropriathem in common. But these facts, without tion. It often happens that the chief value other pertinent evidence, do not justify the of an appropriation consists in its priority conclusion that Nichols agreed to surrender over other appropriations from the same his separate priority; nor is the inference to natural stream. Hence, to deprive a perbe indulged that he intended so to do. As son of his priority is to deprive him of a was said in Rominger v. Squires, supra: “It most valuable property right; for example, is cot reasonable to suppose that priority of in the case at bar, if, as a matter of fact, right to water, where water is scarce, or Nichols made his original appropriation likely to become so, will be lightly sacrificed on the south side as early as 1861, as he or surrendered by its owner. Nor should the claims, or in 1864, as claimed by others, owner of such a right be held to have sur the adjudication fixing his priority as of rendered it or merged it, except upon reason. the date of the Wellman ditch (May 1, 1878) ably clear and satisfactory evidence."

subjects his right to all intervening appro2. Was the adjudication of priorities as priations made between the former dates made in district No. 6 in 1882 res judicata and the latter, and thus greatly lessens its as to plaintiff's rights? An affirmative an value. A priority of right to the use of swer would, in our opinion, give undue water, being property, is protected by our effect to the irrigation acts of 1879 and constitution so that no person can be de1881, and the adjudications of priorities prived of it without "due process of law." thereunder. In Reservoir Co. v. Southworth, Const. Colo. art. 2, § 25; Cooley, Const. supra, it was said of these irrigation acts: Lim. (6th Ed.) 431 et seq. Conceding that “They are in the nature of police regula- | plaintiff, as he testifies, made his approtions to secure the orderly distribution of priations of water in the early sixties, and water for irrigation purposes, and to this continuously thereafter applied the same end they provide a system of procedure for to purposes of irrigation until 1888, when determining the priority of rights as be the water commissioner shut off his sup. tween the carriers." And again: “The au ply, he was entitled, as we have heretofore thority of the general assembly to enact indicated, to have such prior water rights laws regulating the distribution of water to protected, notwithstanding he had changed actual appropriators, provided they do not the place and mode of diversion, and notsubstantially affect constitutional or vested withstanding the statute providing for the rights, is undoubted." See 13 Colo. 134, adjudication of priorities and the decrees 137, 21 Pac. Rep. 1028. In the same case entered thereunder in 1882. It is true, secit was held by the majority of the court that tion 26 of the act of 1881, supra, limits the “the appropriations of water by consumers review or reargument of such decrees to who receive the same through the same the period of two years from their entry. ditch do not necessarily relate to the same Section 35 also provides that after the lapse time; but, on the contrary, such consumers of four years from such entry, all parties may have different priorities of right.” whose interests are thereby affected shall Thus, in effect, the "prorating statute,” so be deemed to have acquiesced in the same, called, (Gen. St. 1883, § 1722,) was upon etc. But these sections do not apply to constitutional grounds limited in its opera an original proceeding for an adjudication tion. As early as 1880 litigation arose re of priorities by a party who has never had specting the entry of decrees under the irri. his day in court. A reargument implies gation act of 1879 without service of pro a previous argument, or at ast a previous cess or notice upon the parties whose water opportunity for argument. No one's inrights were to be affected by such decrees. terests can properly be said to be affected One of the district judges refused to enter by a decree in a proceeding of this kind such decrees except upon a compliance with to which he is not a party. Plaintiff not certain rules which he had formulated re having been served with process, his pos

5. While it may be proper to inquire as to the amount of water necessary to irrigate a certain amount of land, as was done on the previous trial, nevertheless, in fixing priorities between contesting claimants, it must be borne in mind that the amount actually appropriated, and the time of its appropriation, are also important; in other words, no one is entitled to have a priority adjudged for more water than he has actually appropriated, nor for more than he actually needs. His priority of right must be limited by each of these considerations. Proof of present need is not of itself proof of prior appropriation, and vice versa. The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with this opinion.


session and enjoyment of the water rights in controversy not having been interrupted, disturbed, or in any way challenged from the date of his appropriation until just before the commencement of this proceeding, his interests cannot be held to have been affected by the lapse of time prescribed by the statute. It has been aptly said: “The doctrine of laches can only be invoked by one in possession against one out of possession." See Coffee v. Emigh, 15 Colo. 191, 25 Pac. Rep. 83, and authorities there cited. The prior rights of a party not served with process or notice in proceedings to adjudicate priorities cannot be held to be affected by the lapse of time so long as such rights are not actually denied, abridged, or interfered with by the enforcement of the decree entered in such proceed. ings. It cannot properly be said that a person has slept upon his rights unless he has for a considerable period of time actually acquiesced in being deprived of them.

3. The trial court further found: "The two old Nichols ditches are abandoned, and no longer used as ditches. Plaintiff has substituted other ditches for them, and is and has been for many years using his water rights through the said substituted ditches; and therefore he cannot call for an adjudication of priority for the two old ditches as if they were still existing operative ditches.” It may be that plaintiff had abandoned portion

of his original ditches, yet it would seem from this finding that he had not abandoned his water rights. A distinction must be observed between the abandonment of an irrigating ditch and the abandonment of the right to the use of water for irrigation. Water rights may be abandoned by nonuser, but so long as the appropriator continues the use of such rights without any unreasonable voluntary cessation an abandonment of his water rights will not be presumed against him. Sieber v. Frink, 7 Colo. 153 et seq., 2 Pac. Rep. 901. As a new trial may be had in this proceeding, we have endeavored not to intimate any decisive opinion concerning the facts of the case, nor to discuss the evidence, except so far as has been necessary in expressing our views upon the law governing the rights of the parties.

4. In case of further proceedings, any person or persons whose rights may be affected by the adjudication of plaintiff's priorities as claimed by him are entitled to be made parties. Plaintiff should be allowed to amend his petition so as to secure an adjudication of his priorities through any substituted ditch, instead of his original ditches, if he desires so to do; and the date and amount of his priorities on either side of the stream respectively must be subject to such proof as he can make, the same as if he had been served with process, or had appeared in the original proceeding for the adjudication of such priorities.



ATCHISON, T. & S. F. R. CO. (Supreme Court of Colorado. Oct. 2, 1893.) HARMLESS ERROR-ASSIGNMENT OF CAUSE OF AC

TION-PLEADINGS. 1. Where, from a review of the whole record, it clearly appears that the judgment rendered is right, it will not be reversed by the appellate court on the sole ground that some erroneous reason for the decision

was expressed by the trial court.

2. A claim for damages to property may, under our statute, be assigned so as to vest in the assignee the right of action in his own name. The general rule is that assignability and descendibility go hand in hand.

3. The assignment of part of an entire demand will not be sustained at law, but will be upheld in equity where the demand is for some certain or definite fund which equity requires shall be divided according to the assignment.

4. Under our practice, legal and equitable relief may be had in the same action, as the nature and cause of the action may require; but, in order that equitable relief may be had, equitable pleadings inust be interposed.

(Syllabus by the Court.) Error to district court, Arapahoe county.

Action by the Home Insurance Company of New York and others against the Atchi. son, Topeka & Santa Fe Railroad Company. Defendant had judgment, and plaintiffs bring error. Affirmed.

The other facts fully appear in the following statement by ELLIOTT, J.:

The complaint alleges, in substance, that the Arkansas Valley Land & Cattle Company was the owner of 370 tons of hay, of the value of $3,700, stacked upon the Holly ranch, in Bent county, Colo., through which the defendant company operates its line of railroad, and that on March 19, 1887, said hay was consumed by fire set out or caused by the operation of said railroad. It further alleges that the cattle company, on July 7, 1887, for a valuable consideration, assigned to plaintiffs its claim against the railroad company for the loss of said hay. The answer denies that the fire complained of was caused by the operation of defendant's rail. road, and also denies the assignment of the cattle company's claim to plaintiffs. The

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answer contains a special defense to the sole ground that some erroneous vieto OT effect that on April 23, 1887, defendant, with reason for the decision was expressed by the out notice of any claim or demand of plain trial court. 2 Thomp. Trials, $ 2404; Bell v. tiffs, paid the cattle company the sum of Cunningham, 81 N. C. 83. $600 in full satisfaction of all losses occa The statute of this state making railroad sioned by fires to the date of said payment, companies liable for damages by fire set out and that in consideration of such payment or caused by the operation of their trains the cattle company did, in writing, on the has been held constitutional, and declared date last aforesaid, release and forever dis to be purely remedial in its nature. Gen. charge defendant of and from all manner St. 1883, $ 2798; Railway Co. v. De Busk, of actions, causes of action, suits, claims, 12 Colo. 294, 20 Pac. Rep. 752. See, also, and demands whatsoever, in law or equi- Wadsworth Case, supra. That an entire ty, etc. The special defense was traversed claim for damages to property may, under by the replication, and a jury was impaneled statutes like ours, be assigned so as to to try the cause. The record shows, inter vest in the assignee the right of action in alia, the following proceedings: "This cause his own name, is well established by the having heretofore come on for trial before current of authority. The general rule is this court and a jury, and, at the close of the that assignability and descendibility go hand testimony on both sides, the defendant hav in hand. Under our system of practice it is ing moved that the jury be directed to find not material whether the claim be assignfor the defendant, and, by consent of the able at law or in equity, though, as will here parties, the jury having been, at that stage after appear, in order to recover on an as of the case, dismissed, and the cause sub- signment sustainable in equity, but not at mitted to the court, and the court having, law, the facts showing the equitable grounds after hearing arguments, sustained the said of the assignment must be set forth in the motion, and found for the defendant, on the pleadings. Rev. St. 1868, p. 682; Code, $ ground that the plaintiffs' complaint and 1, 3, 4; Bliss, Code Pl. 88 3-7, 38 et seq; cause of action were not sustained by the Kelley v. Railway Co., 16 Colo. 455, 27 Pae. evidence adduced on the trial, the assignment | Rep. 1058; Amer. & Eng. Enc. Law, tit. of several portions of the alleged claim of “Assignments." The complaint shows no de the assignor in the complaint named to the fect in plaintiffs' cause of action; but, as the said several plaintiffs being void, and not decision of the lower court was based upon siroving the cause of actions set out in the the merits of the controversy as disclosed complaint." Motion for new trial was denied, by the testimony, the law applicable to the and judgment was rendered for defendant evidence, as well as to the pleadings, must on the finding aforesaid. To reverse such be considered. Upon the evidence produced, judgment, plaintiffs bring the record to this difficult questions arise. The evidence shows court by writ of error.

that different fires occurred at the Holly

ranch on different days. Each fire, it apWolcott & Vaile, for plaintiffs in error.

pears, was set out or caused by the operaCharles E. Gast, for defendant in error.

tion of defendant's line of railroad. The fire

which burned the hay described in this acELLIOTT, J., (after stating the facts.) At tion occurred on March 19, 1887. The same the close of the testimony, by consent of fire also burned certain pasture lands and parties, the jury was discharged, and the fence posts, in addition to the bay. Other cause was submitted to the court to pass fires occurred on April 7, 1887, and burned upon and decide all matters of fact, as large areas of pasturage, and also certain well as of law, under the issues and the fencing materials. In April, 1887, claims evidence, the same as if no jury had been were presented by the cattle 'company impaneled. The court found in favor of de against the defendant railroad company for fendant.

damages occasioned by these fires. The In the case of Wadsworth v. Railway Co., aims were as follows: 18 Colo. 33 Pac. Rep. 515, where plaintiff elected to stand by his case as made,

Exhibit 1 rather than have a new trial, it was held, "The Arkansas Valley Land and Cattle after verdict by the jury, that the trial

Company, (Limited.) court was justified in dismissing the action on the ground that plaintiff could not in any

"Holly, Colo., April 5th, 1887. event, as a matter of law, recover in the ac

"A., T. & S. F. R. R., Dr., to A. V. L & tion. In the present case, as in the Wads

C. Co.:
worth Case, it is contended that, as the rea 200 acres pasture land burnt by
son expressed by the trial court in connec-

sparks from engine March 19, 1887,
at 50c. per acre.....

$100 00 tion with its finding was erroneous, the judg

45 posts, at 18c..

8 10 ment must be reversed. But the better rule undoubtedly is that where, from a review

$108 10 of the whole record, it clearly appears that "County of Bent, state of Colorado-ss.: H. the judgment rendered is right, it will not R. Tillett, being first duly sworn, says that be reversed by the appellate court on the he is the legal authorized agent of the Ar

6 307 settled those claims.

kansas Valley Land and Cattle Company, s tions, causes of action, suits, debts and and that the above claim is just and true to sums of money, dues, claims and demands, the best of his knowledge and belief, and whatsoever, in law or equity, which I have furthermore sayeth not. [Signed] H. R. ever had or now have against said company, Tillett, Supt.

by reason of any matter, cause or thing, "Sworn and subscribed to before me, this

whatever, whether the same arose upon con18th day of April, A. D. 1887. (Signed) C. D. tract or upon tort. In testimony whereof, I McPherson, J. P."

have hereunto set my hand this 29th day of

April, 1887.
Exhibit 2.

[Signed] "H. R. Tillett, Superintendent. "The Arkansas Valley Land and Cattle Com

"Witness: C. L. McPherson." pany, (Limited.)

There was no error in the refusal of the

court to allow plaintiffs to show by the wit"Holly, Colo., April 9, 1887.

ness Tillett that he was not, and never had "A., T. & S. F. R. R. Co., to A. V. L & O.

been, an officer of the cattle company. It Co.:

was a matter of no importance, as the case 1,000 acres pasture burnt April 7,

stood when such offer was made. Tillett at 50c...

$500 00

had already testified, as a witness for plain25 fence posts burnt April 7, at 18c.. 4 50 The above is west of station, and

tiffs, to his capacity as superintendent of the north of track,

company's ranch at Holly, and to his pres200 acres pasture burnt same date,

entation of the two claims in behalf of the at 50c.

100 00 35 fence posts burnt

cattle company. He also admitted that he same date, at 18c.

Technically, he may North of track, east of station.

not have been a corporate officer of the cat$610 80

tle company; and yet it appears that he was "County of Bent, state of Colorado-S8.: H. authorized to present, settle, and collect the R. Tillett, of Holly, in the county aforesaid, claims for the company, as he had assumed being duly sworn, says that he is the legal to do. There was no offer to show that he authorized agent of the Arkansas Valley did not sign the receipt, nor that he did not Land and Cattle Company, and that the have authority so to do, nor that the cattle above damage was done by fire started from company did not receive the payment which engines belonging to the Atchison, Topeka Tillett receipted for as its superintendent. & Santa Fe Railroad, and that the above A careful examination of the evidence shows account is just and true, to the best of his that all the fires complained of occurred beknowledge and belief, and further says not. fore the settlement between the cattle com(Signed] H. R. Tillett, Supt.

pany and the railroad company. The claim "Sworn to this 9th day of May, A. D. 1887, of the cattle company for the loss of the before me. (Signed] C. L. McPherson, J. P.” hay was therefore as complete at the date

of that settlement as it ever was. The eviThe following written instrument dence also shows that the cattle company, identified as genuine, and read in evidence by its superintendent in charge of its ranch, in behalf of defendant:

had full notice of the destruction of the hay “Atchison, Topeka and Santa Fe Railroad at the time of such settlement. It had the Company, to Arkansas Valley Land and same notice of the destruction of the hay as Cattle Company:

of the pasturage and fence posts. It was es"Holly, Colo., April 23, 1887. tablished without controversy, by plaintiffs' "For all damages by reason of fires set by evidence, that the hay which is the subject locomotives on the A., T. & S. F. near Holly, of this lawsuit and certain pasture lands and to this date, and in full satisfaction and pay certain fence posts were burned by the same ment for all losses by said fires:

fire at the same time. Superintendent Tillett "Amount claimed, $718.90, and settled in testified that he presented the claims to the full for $600.00.

railroad company for the pasturage and "Examined by J. W. W.

posts that were burned, but that he did not "Correct. O. M. L.

settle anything except the items of the loss "C. M. Rathbun, Superintendent.

specified in the two accounts marked Ex“Approved. C. M. Foulks.

hibits "1" and "2." Thus, the cattle com. 1

"Approved. H. C. Clements, Auditor. pany undertook to show that it had settled

“Approved. J. F. Goddard, (J. N. F.) Gen with the railroad company for a part, only, eral Manager.

of an entire demand occasioned by a single "Received of the Atchison, Topeka & San act,-an act in the nature of trespass or nego ta Fe Railroad Company six hundred dol ligence, actual, constructive, or implied, as lars, in full payment of the above ac the case may be classified under the statute, count. In consideration of the payment -while it reserved its claim for the residuo of said sum of money, I, H. R. Tillett, of the loss occasioned by the same act; that superintendent of Holly, in the county | is, it undertook to show a settlement for the of Bent and state of Colorado, hereby | posts and pasturage, but a reservation of the remise, release and forever discharge the claim for the bay, though all those articles of company of and from all manner of ac- property were destroyed by the same act.



In jurisdictions where law and equity are railroad company to the Home Insurance administered by different tribunals, or on Company to the extent of $264.93; to the different sides of the saine tribunal, the American Insurance Company, a similar asgeneral rule is that the assignment of part of signment, to the extent of $176.72; and so on, an entire demand will not be sustained by aggregating $2,960. Each article of assignthe law courts, though it will be upheld by ment and subrogation recites that the insurthe equity tribunals where the demand is for ance company therein named had insured some certain or definite fund, which equity the bay of the cattle company, had paid a requires should be divided according to the specified sum on account of the loss of the assignment. Under our present practice, hay, and that said company was by such aslegal and equitable relief may be had in the signment, to the extent of the sum so paid, same action, as the nature and cause of the authorized to sue for, settle, or compromise action may require. Nevertheless, in order any claim which the cattle company had that equitable relief may be had, equitable against any party liable for the burning or pleadings must be interposed; hence a par-destruction of the bay, thus fully substituttial assignment of a legal demand will not ing and subrogating the insurance company be sustained in our courts unless the facts to all the rights of the cattle company in the showing the equitable right or interest upon premises. which the partial assignment is based are It is urged by counsel that plaintiffs' cause alleged, as well as proved. In Bank v. Ford, of action is supported by strong equities. If 7 Colo. 320, 3 Pac. Rep. 449, our late so, the facts showing such equities should Chief Justice Helm, delivering the opin- have been pleaded, thus giving defendant ion of this court, clearly stated the dis. | opportunity to controvert them, or to continction to be observed in pleading mat- fess them, and save further costs in the acters of legal and equitable cognizance tion. When insured property is destroyed

follows: “The Code abolishes forms by the carelessness or negligence of a third of actions merely, including the difference in party, it may well be said that an insurthis respect between actions at law and suits ance company liable to its policyholder for in equity, and provides a single method of the loss should, in equity, upon making pay. pleading. It does not undertake to do away ment, be subrogated to the rights of the inwith the distinction between legal and equi. sured against the wrong-doer; but, where table causes of action. It does not rescind the liability exists by mere force of the statthe rule that the allegation and the proof ute, the equity of the insurance company is must correspond, nor the correlative princi- | not necessarily very strong, and in some inple that the judgment must follow the plead stances it may be very slight, or have no ings. To procure standing in a court of existence at all. The statute makes the railequity and obtain equitable relief, the plead road company liable unconditionally, irre er must still state an equitable cause of ac spective of any negligence on its part. The tion or defense.” The same doctrine is rec statute is upheld as a statute of indemnity,ognized in Fillmore v. Wells, 10 Colo. 236, a remedial statute, whereby the owner may 15 Pac. Rep. 343; Danielson v. Gude, 11 Colo. recover for the loss of his property. The 92, 17 Pac. Rep. 283; and also Bank v. Wil statute is based upon the consideration that bur, 16 Colo. 320, 26 Pac. Rep. 777. In the the railroad company is, by special franpresent action the complaint simply al chise, allowed to operate its trains for profit leges that the cattle company's claim for the by the dangerous agency of steam, and that loss of the hay was assigned to plaintiffs in so doing it exposes property owned by for a valuable consideration. It shows an others situate upon the line of its road to assignment of the claim to them jointly. It unusual hazards; hence, as between the raildoes not allege the nature of the considera- road company and such property owners, tion, nor the facts and circumstances of the the statute makes the company liable for transaction in detail, as good equity plead the damages caused by fire from its engines. ing requires. Bliss, Code Pl. $ 3. The evi- But can it be maintained that the insurance dence offered, as we have seen, shows that company occupies the same position as the the loss of the hay was a part, only, of the owner whose property is thus exposed, it damages resulting from a single cause of ac may be, without his consent? The insurance tion, to wit, the fire set out by defendant's company voluntarily goes upon the line of engines on March 19th. The cause of action the railroad, and insures property exposed was the fire; the items of the damages were to such extraordinary danger.

The insurthe destruction of the posts, the pasturage, ance is granted for premiums presumably and the bay. Thus the assignment was for commensurate with the extraordinary haza part, only, of the damages arising from a ard. The insurance company, as well as the single cause of action. More than this, the railroad company, pursues its business for several articles of assignment and subroga a profit. Insurance is granted for a considtion produced in evidence show an assigneration against fires caused by the operament of the damages to nine different in- tion of the railroad, as well as against fires surance companies (plaintiffs in this action) otherwise caused. How, then, can it be said in severalty; for example, an assignment by that the insurance company has a strong the cattle company of its claim against the equitable claim to reimbursement from the

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