People ex rel. Standart v. Farmers High Line Canal & Reservoir Co.

Mr. Justice Goddard delivered the opinion of the court. Upon the facts presented by this record we should entertain no doubt of the right of plaintiff in error to the relief demanded were it not so vigorously challenged by the able jurist who delivered the opinion of the court of appeals. Because of the high regard we justly entertain for his legal learning, his views have occasioned the only difficulty that we have experienced in arriving at a satisfactory conclusion as to the availability of this remedy. A critical examination of the opinion, however, satisfies us that the conclusion reached is due to a misapprehension of the object of the suit and the questions properly in issue. It is conceded that it is possible that enough was alleged in the petition to warrant these proceedings ; and, disregarding the divers defenses set up by the company, since in its opinion the decision of the case did not turn upon the sufficiency of these pleas, or the adequacy of the proof to support them, the court of appeals denied the right to relief by mandamus because “ the testimony offered * * and the judgment of the court, all warrant us to reach the conclusion the sole purpose and object of the suit was to obtain a judicial construction of the contract and an establishment of a perpetual right in Eli Allen and his grantees to water from the canal company, and not to procure temporary relief from a breach of the contract on the part of the corporation.” — 211 — We do not think that either assumption is justified by the pleadings or evidence in the case. While it is true that the contract is set out in hcec verba in the complaint, and is relied on as the basis of plaintiff’s right to demand and receive water from the company’s ditch, its language is plain and unambiguous, and its validity or meaning was in no way denied or questioned by respondent. On the other hand, it was expressly admitted upon the trial that the company assumed its obligations and agreed to, and did, commence furnishing water to all parties named in the list; and that it is still furnishing what is called schedule water to the farmers under the ditch who have bought it regularly without lapse from the company, since it had taken charge of the ditch in 1886. Therefore, its construction, judicial or otherwise, was not involved, nor in any way necessary to a determination of the rights of the respective parties in the case; and although the right to the use of water for the land in question thereby conferred is a perpetual right, the object of the present action, as shown by the demand and tender, the allegations of the complaint that the amount of water demanded was necessary for the life and protection of. the crops during the season of 1894, and the judgment of the court below commanding respondent company to forthwith furnish twenty-five inches of water on the payment of $25.00 (being the price fixed in the contract for that quantity of water for one season) was clearly to procure temporary relief from a breach of contract on the part of the company. It is also an erroneous assumption that, with a change of parties and the character of the suit, the end sought in this action is exactly like that which was striven after in the suit of White against the canal company, reported in 5 Colo. App. 1, and 22 Colo. 191. In that action the company sought to enjoin White, who was the owner of a right under the contract similar to that of Eli Allen and others who originally owned the ditch, from availing himself of certain provisions contained in that portion of the contract we have omitted, and which, as we have before stated, provided that parties — 212 — entitled to water under the contract, in case those who were in control or management of the ditch should refuse to furnish water upon demand and tender, might draw therefrom and take such water as they were entitled to. It will be seen by reference to these opinions that the sole and only question there determined was that that portion of the contract was against public policy and inconsistent with the statute of 1887, which provided for the regulation and distribution of water, and therefore void; and the question of his right to have water furnished under the contract by respondent company was not involved or determined. The contract being admitted, and consequently established, and the assumption of its obligation by respondent company conceded, it only remains to determine whether the right to the water for the land in question has been lost by abandonment. In other words, whether Allen, by continuing to receive water from the Eureka ditch after that ditch ceased to be supplied from the Arapahoe ditch, and obtained its water from the Juchem and Reno ditches directly from Olear creek; and the sale by the respondent to, and use by, other parties in the mean time, of the water carried in the old Arapahoe ditch, forfeited or lost his right to demand and receive water under the contract. As said by the court of appeals: “ In reality, there was nothing else litigated, and nothing else towards which any proof was offered.” This question the court of appeals expressly declined to pass upon, regarding it as a matter not proper to be determined in a mandamus proceeding. Whether or not the company could evade its duty to plaintiff, and successfully defeat this remedy by showing that it had obligated itself to furnish the water to which he was entitled to third persons, it is unnecessary to determine, since, as stated by the court of appeals: “No question was made in regard to parties, nor was there any proof offered by the company to show that all the water which they had diverted and transported had been bought and delivered to consumers. — 213 — Certainly with the claims of third parties eliminated, the attempted defense presents no issue that may not be determined in this proceeding. As a part consideration for the sale of his interest in the original ditch to Bomberger & Company it was expressly provided that Allen should have delivered through the ditch “ forever, so much water as may in fact be necessary and proper to amply irrigate all the lands * * * mentioned in said schedule; at all times from the 15th day of May unto the 15th day of November in each and every year * * * at the rate of 11.00 per inch. * * * That the covenants * * * touching the furnishing and delivery of said waters for said lands shall run with the right of way and ditch * * * and with said lands forever.” The right, therefore, that Allen acquired (or rather reserved) under the contract, was a perpetual right to have carried by the ditch, and furnished to him, sufficient water to irrigate the lands then owned by him and referred to and described in the schedule. This right constituted an easement in the ditch. Such a right cannot be lost or abandoned by nonuser alone, short of the period for the limitation of actions to recover real property. “ If the easement has been acquired by deed, no length of time of mere non-user will operate to impair or defeat the right. Nothing short of a use by the owner of the premises over which it was granted, which is adverse to the enjoyment of such easement by the owner thereof, for the space of time long enough to create a prescriptive right, will destroy the right granted.” Washburn on Easements & Servitudes (4th ed.), p. 717. Under the averments of the answer, and from the evidence introduced, there appears at most a nonuser by Allen of the water for the period of five years. Aside from this there was no act on his part that indicated an intention to abandon his right. Conceding, therefore, all that is claimed by respondent in this regard, the original right of Allen to receive water under the contract is unaffected; and we cannot see wherein this case differs in any essential feature from the following — 214 — cases, in which, this court has held that mandamus is the appropriate remedy. Golden Canal Company v. Bright, 8 Colo. 144; Wheeler v. Northern Colo. Ir. Co., 10 Colo. 582; Townsend v. Fulton Ir. Ditch Co., 17 Colo. 142; Combs v. Agricultural Ditch Co., 17 Colo. 146. These decisions announce with clearness the reasons why mandamus will lie to compel the delivery of water where there exists a correlative duty and right between a ditch company and consumer. It is unnecessary to repeat them here. The controlling considerations were that the status of the canal companies, they being gwasi-public agents for transporting water for hire, imposed upon them a g'wasf-public duty, and that they were not in the attitude of an individual, contracting for the salé or use of his private property, and the inadequacy of any other remedy to coerce the performance of this duty in time to afford effective relief. As expressed in Golden Canal Co. v. Bright, supra: “ In the first place, however, the relation of the parties should be remembered. Relator does not occupy the attitude merely of one in whose favor an ordinary right of action accrues by reason of the tortious conduct of another; nor merely of one who may recover damages for the violation of a contract. By statute, a peculiar right in favor of relator, and a special obligation on the part of respondent, are created; it may be true, as counsel for the relator assert, that this is one of the trust relations referred to in section 888 of the code, the provision designating the circumstances under which the writ may issue.” While the right recognized in these cases was one conferred by statute, which the relator, upon the performance of certain conditions precedent, was entitled to enjoy, we are unable to perceive any reason why the same right, when conferred by contract, is not equally susceptible of enforcement in this manner, when clearly established, as in this case, and the consequences of its denial are the same. A further reason assigned by the court of appeals for denying this remedy is that it did not know what, if any, crops — 215 — were growing on the land during the year 1894 ; and because there was no evidence that a crop would be lost if the water was not delivered. An inspection of the pleadings removes this objection. It is averred in the petition that at the time of the demand there were growing crops and a large number of fruit trees on the land in question, and that these would be completely destroyed if the full amount of water demanded was not furnished by the company. The only denial made by respondent was as to the amount of water needed and required to irrigate them. Upon this issue the evidence introduced by plaintiff was to the effect that the full amount demanded was needed; and there was no evidence to the contrary. As we construe the pleadings in this case, and understand the evidence introduced, the right of plaintiff in error to have water furnished by respondent, under the contract, is clearly established; and no controverted question of fact is presented that may not be determined in this proceeding; and we are forced to the conclusion that the reasons assigned by the court of appeals for reversing the judgment of the district court are not well founded. Its judgment is accordingly reversed, and the cause remanded, with directions to affirm the judgment of the’ district court. Reversed.