Handy Ditch Co. v. South Side Ditch Co.

Per Curiam. In the opinion rendered upon the former appeal we held that sec. 19, p. 100, Sess. Laws, 1879, when considered in connection with other sections of the irrigation act, vested exclusive jurisdiction in the matter of adjudication of water rights in one district court; and that that court, as therein designated, when more than one county was included in an irrigation district, was the one in which the first regular term after the first day of December soonest occurred; and that from the facts pleaded in the answer and admitted by the demurrer, it appeared that the district court of Boulder county was the one that met this requirement; that a proceeding for the adjudication of water rights in district No. 4, had been duly commenced therein, had proceeded to final decree, and that all parties plaintiff and defendant having had due notice, and appearing in said proceedings, and submitting the proofs of their priorities, such adjudication was res [336] adjudioata of the questions sought to be here litigated; and that the district cpurt of Larimer county was therefore-without jurisdiction to entertain the action. The plaintiff, by its replication, presents for the first time in the history of this litigation, the fact that prior to the institution of the proceeding in the district court of Boulder county, the district court of Larimer county had entered an order appointing a referee, who had qualified and taken some evidence. And the contention now is that by the entry of this order exclusive jurisdiction over the subject of water rights in irrigation district No. 4 was vested in the district court of Larimer county, by virtue of the concluding sentence, Sess. Laws, 1879, sec. 19, p. 100, which follows that portion which designates the proper county in which the proceedings shall be commenced, and which provides : “ But where such proceeding shall be once commenced, by the entry of an order appointing a referee in the manner and for the purpose hereinafter in this act provided, such court shall thereafter retain exclusive jurisdiction of the whole subject until final adjudication thereof is had, notwithstanding any law to the contrary now in force.” We do not think that the plaintiff is in a position to raise this question at this time, or to avail itself of this objection in this action. It was a party to the original proceeding in the district court of Boulder county, and without in any manner questioning the jurisdiction of that court to entertain the proceeding, submitted to the adjudication of its rights therein, and for several years accepted the result of that adjudication and enjoyed the right thereby decreed to it. As was said in Denver City Irrigation & Water Company v. Middaugh, 12 Colo. 434: “ It is a familiar principle of the law that a party accepting and retaining the fruits of a void judgment is estopped from assailing the judgment itself.” Arthur v. Israel, 15 Colo. 147; Duff v. Wynhoop, 74 Pa. St. 300; The Boulder & Weld County, Ditch Co. v. The Lower Boulder Ditch Co., 22 Colo. 115. [337] We think this principle of equitable estoppel is particularly applicable to a case like this, where the court assuming to act was ostensibly the proper court and the one primarily vested with jurisdiction of the subject, and whose right to exercise such jurisdiction can be questioned only in the event that some other court has taken prior action. Under such circumstances, a- party desiring to avail himself of the fact that such prior action has been had, should be required to make his objection in apt time, and in some proper manner give notice of the existence of that fact to the court in which the statutory proceeding is subsequently commenced; and should not be permitted to remain silent until after time has been consumed and expense incurred in taking testimony, and the rights of all parties interested have been settled, and then challenge the validity of the proceedings. But aside from these considerations, the rule announced in The Montrose Canal Co. v. Loutsenhizer Ditch Co., 23 Colo. 233, is decisive of this case. We there held that in enacting Mills’ Ann. Stats, sec. 2434 (being Sess. Laws, 1881, sec. 34, p. 159), it was not within the contemplation of the legislature to confer the right to maintain such an action as this, by parties to a former proceeding; but that in view of the ample opportunities afforded such parties for rehearing and review by other sections of the statute, it had in contemplation an action by a person, association or corporation that was not a party to a prior proceeding; or if a party thereto, whose right of action grows out of matters arising subsequent to the decree. Whether, therefore, the construction contended for by counsel'is correct or not, a question we do not decide, we are of opinion that plaintiff is not entitled to avail itself of this objection at this time, or to question the jurisdiction of the district court of Boulder county in this collateral proceeding. The judgment of the district court dismissing the action is accordingly affirmed. Affirmed.