McLure v. Koen

Mb. Justice Goddabd delivered the opinion of the court. The first two assignments of error challenge the sufficiency of the complaint for the reason that the agreement sought to be enforced was not alleged to be in writing, and is so indefi [287] nite as to the amount of water plaintiff is entitled to thereunder as to be incapable of enforcement. These questions were sought to be raised by objecting to the introduction of any testimony. That the bar of the statute of frauds cannot be taken advantage of in this manner is too well settled to admit of discussion. Tucker v. Edwards, 7 Colo. 209; Hunt v. Hayt, 10 Colo. 278; Garbanati v. Fassbinder, 15 Colo. 535; Tynon v. Despain, 22 Colo. 240; Hamill v. Hall, 4 Colo. App. 290. Nor was the complaint deficient in stating a cause of action, because under the contract pleaded the quantity of water to which plaintiff was entitled was to be determined solely by the acreage to be irrigated, instead of specifying a mathematical amount in feet or inches. It provided for the right to take water for the permanent irrigation of 160 acres. The quantity of water thus provided for is easily ascertained, as demonstrated by the enforcement of this contract itself for several years. The objection, therefore, to the introduction of evidence upon the ground that the complaint failed to state a cause of action, was properly overruled. It is further insisted, however, that the evidence having disclosed that the agreement relied on is an oral one, the statute of frauds may be invoked to defeat its enforcement; and furthermore, that the right sought to be established, being an easement in the ditch and an interest in realty, it is not transferable except by a deed; and therefore, that this agreement is ineffectual to vest title in the plaintiff. A sufficient answer to this contention is that the undisputed evidence clearly establishes the agreement, and a complete performance of its conditions upon the part of plaintiff and his grantor, possession taken thereunder and a user of the water for several years. It is well settled in this jurisdiction that, although an oral contract relating to realty is within the statute, where- a consideration has passed, and it has been fully performed by both parties and possession taken in pursuance thereof, the bar of the statute is removed, and equity will enforce the right thus [288] acquired. Schilling v. Rominger, 4 Colo. 100; Lipscomb v. Nichols, 6 Colo. 290 ; Tynon v. Despain, supra. Under this rule the plaintiff established his right to an interest in the ditch that equity will recognize and protect and a decision as to whether or not such interest is ordinarily transferable otherwise than by deed, is unnecessary to the determination 'of the case. But another reason advanced why the agreement is not enforceable against the defendant McLure, in any event, is that, he acquired title to the canal without legal notice of the-agreement and of the rights plaintiff claimed thereunder. It-appears in evidence that at a stockholders’ meeting held in St. Louis long prior to his purchase of the canal, McLure was present, and the agreement between the company and the-plaintiff and others was discussed and recognized, and a memorandum thereof entered upon the minutes of the meeting. But counsel contend that, notwithstanding this notice, since he bought the canal at a foreclosure sale under- a trust deed, he took it free from all equities, because the trustee had acquired title without notice. If we may presume, in the absence of any showing, that the trustee acquired title without actual notice, the open and notorious possession of plaintiff at the time was sufficient to put him upon inquiry, and constituted constructive notice. But even if this were not so, his claim cannot prevail because he is not at present holding title-under that sale. In March, 1898, he conveyed the property to-one F. B. Koen, who was formerly president of the company, who conveyed it back to McLure on June 28,1894. During this time plaintiff’s rights were openly asserted; and during McLure’s ownership in 1892 he appointed him to manage the canal; and after his repurchase in 1894 availed himself of the-fact of plaintiff’s continuous user of the water to establish its priority in the adjudication proceedings above referred to. In view of these facts and circumstances, we think that. McLure must be held to have acquired title to the canal with full notice and knowledge of appellee’s rights.. It is also-urged that the decree is void for uncertainty. It adjudges. [289] the plaintiff to he the owner, and entitled to the use, of sufficient water flowing through the canal for the irrigation of 160 acres of land. In this respect it conforms to the agreement which we have already seen is sufficiently definite and certain in this regard. We have considered the other objections presented and argued by counsel for appellant, and without noticing them in detail, it is sufficient to say that a careful examination of the record satisfies us that the judgment of the court below is correct, and should be affirmed, which is accordingly done. Affirmed.