Knowles v. Lower Clear Creek Ditch Co.

Mr. Justice Gabbert delivered the opinion of the court. A rehearing was granted for the one purpose of reconsidering the question of the jurisdiction of this court to entertain this appeal. Counsel for appellant contends that the action relates to both a franchise and a freehold. Counsel for appellees suggest that jurisdiction might attach on error, but that it cannot on appeal. This distinction is not tenable. The code of civil procedure provides that appeals shall lie from the district to the supreme court in all cases where the judgment appealed from relates to a franchise or freehold. Sec. 388, Mills’ Ann. Code. This provision is not affected by the act creating the court of appeals. The latter does provide, however, that no appeal or writ of error to the supreme court shall lie to review the final judgment of any inferior court, unless the judgment, or in replevin, the value found, exceeds $2,500, exclusive of costs; but this limitation does not apply where the matter in controversy relates to a franchise or freehold. Sec. 406a Mills’ Ann. Code. Measured in money, the judgment rendered in this cause is only for costs ; therefore, its nature is such that unless some question' is presented which gives this court jurisdiction, it is without authority to review it, either on appeal or error (sec. 406a supra), so that, under the act creating the court of appeals, unless a freehold or franchise is involved (no other jurisdictional question being suggested), the supreme court cannot review the judgment of the trial court in either of the ways provided by the code; but if there is, then it may be reviewed here, either on appeal or error. [472] Ditch and water rights are freehold estates. Wyatt v. Larimer & Weld Irr. Co., 18 Colo. 298; Daum v. Conley, ante, p. 56, The question as to when a freehold is involved -within the sense of the statute relating to appeals and writs of error is often difficult to solve. So far as the decisions of this court are concerned, no rule has been announced which would be an infallible test in all such cases; perhaps, one cannot be formulated, because the circumstances under which the question may arise are so-varied. Plaintiff is not seeking to recover an interest in a freehold. No title to an interest in the ditch and water rights mentioned is vested in him by virtue of an ownership of stock in the defunct corporation. If that legal entity was still in existence, the title to such ditch and water rights would be vested in it. Morawetz on Corporations, § 288. According to the theory upon which the complaint of plaintiff is framed, and the statute upon which he relies for the relief demanded, the title to such property is vested in certain individuals. The ultimate object of the action is -to wind up the affairs of the defunct corporation, dispose of its property, and have the proceeds distributed among its stockholders. This appellant seeks to accomplish through a receiver. In a measure it may be said that for this reason the cause relates to or -involves a freehold, but these terms are synonymous. Wyatt v. Larimer & Weld Irr. Co., supra; McClelland v. Hurd, 21 Colo. 197. The judgment of the trial court has not divested plaintiff of any freehold estate. It is only to the effect that he is not entitled to the relief which he seeks.- True, if he is granted the relief demanded by the method sought, it will result in divesting the appellees of whatever title they may have in a freehold. This, however, is immaterial, for they are not complaining. As applied to the facts in this case, it is the actual effect, and not the result of a judgment which might be rendered which furnishes the test of whether a freehold is involved or not.- In other words, if the effect of the judgment upon the. party seeking a review in this court has not been to de-. prive him of a freehold estate, then one is not involved, with- [473] in the sense of the statute regulating appeals to this court. Harvey v. Travelers’ Ins. Co., 18 Colo. 354; McCelland v. Hurd, supra; Rose v. Chotau, 11 Ill. 167. For the same reasons, a franchise is not in volved. W e conclude, therefore, that we were in error in previously holding that this court had jurisdiction. The former opinion is withdrawn, the judgment rendered thereon vacated, and the appeal dismissed without prejudice for want of jurisdiction. Appeal dismissed.