Downing v. Agricultural Ditch Co.

Mr. Justice Campbell delivered the opinion of the court. The grievance of which the plaintiff complains and which he has attempted to state in his complaint is that the defendant has deprived him of the use of water for irrigating his lands, to which water he asserts a right superior to that possessed by the defendant. In order to entitle him to the relief sought, his pleading must show that he has such prior right and that defendant has unlawfully deprived him of it. The pleader has set forth at considerable length what he claims to be the facts which constitute plaintiff’s priority, but he has not done so in accordance with the correct rules of pleading. There are three different phases in which defendant’s alleged priority may be considered. It might be inferred that he claims his priority by virtue of an appropriation made long before the construction of defendant’s ditch, which he never surrendered or conveyed to defendant, and which, by some arrangement with the defendant, was to be enjoyed by plaintiff through the defendant’s ditch. It may be inferred that the right claime’d originated as the result of a contract entered into between the plaintiff and defendant at the time of the construction of the defendant’s ditch, whereby the plaintiff surrendered and conveyed to the defendant the prior right theretofore possessed by him, and in lieu thereof defendant agreed to supply him with the 200 inches of water before it supplied its other stockholders. Another inference that might be drawn is that plaintiff claimed his priority over the other stockholders of the defendant company because his [551] purchase of stock from the defendant company was prior in time to the purchase of stock by the others. These inferences, however, do hot enable us to reach any conclusion as to what the plaintiff’s contention is. It may be said that it was unnecessary for plaintiff to state how, or of whom, he acquired his superior right; but that, if his right is paramount, it is immaterial to the defendant when, or how, or from whom the same was obtained. Counsel for the plaintiff, however, evidently assumed that it was proper to do so, as the pleading sufficiently manifests ; and when such an attempt is made, it should be properly carried out. Plaintiff should not state his cause of action in terms so uncertain that defendant can only guess which of these three inferences it must select as the one upon which plaintiff relies. Especially is the defendant entitled to have this uncertainty removed when we consider the ground of the demurrer that there is a defect of parties defendant. As the complaint is now framed, it is impossible to say whether or not this objection is well taken. If plaintiff relies upon a superior right which the law implies merely from his prior purchase of stock, then it may be possible that the plaintiff should make the other stockholders parties to the action, or that the court, of its own motion, would order them to be made defendants, as their rights might be directly affected. The allegations of negligence and unjust discrimination, and the allegations in relation to the inequitable conduct of the defendant in depriving the plaintiff of the water which he claims, as well as the allegations attempting to set up plaintiff’s priority, are too indefinite to call for an answer. The facts which constitute the things which are essential to the existence of the rights claimed by plaintiff should be concisely set forth in the complaint. So far as there is an attempt to state them at all, these essential elements are alleged merely as conclusions of law. The opinions of the three justices in the case of the Farmers’ H. L. C. & R. Co. et al. v. Southtworth, 13 Colo. 111, upon the questions of [552] pleading determined therein, are authority for holding this complaint bad on demurrer. Brevity in pleadings is highly commendable and will be encouraged in every legitimate way by this court; but brev* ity cannot be allowed at the sacrifice of a logical, complete statement of the ultimate facts “in ordinary and concise language without unnecessary repetition.” When all these facts are properly pleaded, it will be time to call upon this court for a construction of the so-called prorating irrigating statutes, and for a ruling as to whether there is a defect of parties defendant. The demurrer to the amended complaint was properly sustained, and the judgment of the court below is affirmed. Affirmed.