Denver Joint Stock Land Bank v. Beardsley

Mr. Justice Bock delivered the opinion of the court. This is a suit in the nature of an action to quiet title, involving certain land and water rights, including nineteen eighty-acre water rights in the Amity Canal. Daisy *496 L. Beardsley, one of defendants in error, who was defendant below, claims three of the nineteen water rights and seeks to have title to the same quieted in her. As to the latter, the trial court decided the issues in her favor and entered judgment accordingly. The only controversy here is with respect to the ownership of the three water rights. Under the facts, the basic question at issue is whether the three water rights involved are appurtenant to the land. It is undisputed that the deeds to the predecessors in title to plaintiff in error expressly conveyed only sixteen eighty-acre water rights. Additional facts show clearly that these were all the water rights intended to be conveyed. There is no evidence disclosed by the record which would warrant a finding that the land would practically be valueless without these water rights, or that without them there would be insufficient water to irrigate such part of the land as is susceptible of irrigation. As to the law applicable to the facts before us, although the cases are not entirely analogous, we are controlled by the decisions in Arnett v. Linhart, 21 Colo. 188, 40 Pac. 355, and Denver Bank v. Markham, 106 Colo. 509, 516, 107 P. (2d) 313, on the issue of whether the water rights in question are appurtenant to the land. The trial court rightly resolved this issue in favor of defendant in error Beardsley. On the main case, the court, in its decree, overlooked the entry of findings and judgment on the issues of fact in favor of the bank, to which it was entitled and concerning which there was no dispute. The judgment is affirmed conditionally upon the entry of such findings and judgment in accordance with the undisputed facts and allegations in the pleadings. Mr. Chief Justice Young, Mr. Justice Bakke and Mr. Justice Hilliard concur.