Consolidated Home Supply Ditch & Reservoir Co. v. New Loveland & Greeley Irrigation & Land Co.

Chief Justice Campbell delivered the opinion of the court. This action was brought by defendant in error, plaintiff below, to restrain the plaintiff in error, defendant below, and the water commissioner in water district No. 4, from interfering with the plaintiff’s use of water for the purposes of irrigation. The plaintiff pleaded, as the evidence of its right, a decree of the district court of Boulder county rendered in 1883 in the statutory proceedings for determining the priorities of right to use water for purposes of irrigation in the water district in which the ditches are situate, by which its several priorities were determined to be superior to each and all of the priorities thereby awarded to the ditch of defendant company. Several defenses were interposed in the answer to the complaint, only three of which are material upon this review. It is doubtful if any of them is sufficiently pleaded to raise the questions argued, but at the request of counsel for both parties we shall, to save costs and relieve the courts of unnecessary litigation, proceed as though the facts constituting the supposed defenses, as both parties concede them to be, were fully and accurately pleaded. 1. The second defense of the answer averred that the district court of Boulder county, in which the decree relied upon by the plaintiff was rendered, was without jurisdiction, since before the institution of proceedings therein, the district court of Larimer county entered an order appointing a referee to take testimony concerning the adjudication of water rights in that district; and that by the entry of that order, and the commencement of proceedings therein, the district court of Larimer county acquired exclusive jurisdiction of such adjudication, under section 19, p. 100, Session Laws of 1879, so providing. This defense must be considered in the light of the complaint, to which it is addressed. A similar contention was made in Handy Ditch Company v. South Side Ditch Company, 58 Pac. Rep. 30; 26 Colo. 333, and it was there held that the party making it was not in a [523] position to urge the point. There, as here, it appeared that the plaintiff and defendant were parties to the proceedings in the district court of Boulder county, and therein a priority of right was awarded to each. No objection was made by any one to the jurisdiction of the district court of Boulder county at the time the proceedings were therein pending; and for several years thereafter defendant acquiesced in the decree and enjoyed its benefits. It cannot therefore be heard in this action to say that the decree of the district court of Boulder county is not binding upon it. The Boulder and Weld County Ditch Co. v. The Lower Boulder Ditch Co., 22 Colo. 115. 2. The third defense of the answer pleaded an abandonment in 1883 by the plaintiff of the last of its several priorities, and the subsequent use and enjoyment of the same by the defendant. This raised a question of fact, which was decided by the trial court adversely to defendant. As is often the ease, there was a serious conflict in the evidence offered by the opposing parties upon this issue. After an examination of the record, we are not disposed, under the well settled rule in this jurisdiction, to interfere with the finding made by the trial court; even though, had we been the triers of facts, a different conclusion might have been reached. We do not say that a different conclusion would hare been reached by us, but it is enough to say that this case does not come within any of the exceptions to the general rule under which we would be justified in setting aside the findings of the trial court. 3. The fourth defense of the answer in substance alleges that some time during the year 1887 an action was pending in some court, which, though not alleged, we shall assume to be the district court of Larimer county, wherein the present plaintiff and defendant were parties, and that some time thereafter, the date not being stated, a decree was rendered whereby the defendant was adjudged to have a right to the use of water for irrigation from the Big Thompson river, the common source of supply, superior to the last priority of [524] the plaintiff, which the latter claimed under the decree of the district court of Boulder county of 1883. That is to say, an attempt was made to plead that the matter in dispute sought to be litigated in the present action was determined adversely to plaintiff in the action in the district court of Larimer county, and the decree therein was pleaded as res adjudieata of the present controversy. The sufficiency of this defense must also be considered in connection with the complaint. The defense is not good under the decisions of this court in Louden Irr. Canal Co. v. Handy Hitch Co., 22 Colo. 102, The Boulder and Weld County Hitch Co. v. The Lower Boulder Hitch Co., supra, Montrose Canal Co. v. Loutsenhizer Hitch Co., 23 Colo. 233, and Handy Hitch Co. v. South Side Hitch Co., supra. It sets up a decree rendered in an ordinary civil action instituted under the code, by which an attempt was made to settle, as between the parties to that action, their respective priorities of right to the use of water for irrigation in water district No. 4 in this state, after an adjudication of the same matters had been had by the district court of Boulder county in the statutory proceedings specially provided for that purpose, in which the litigants were parties and received decrees to which they have not objected in the only way the statute permits. In the cases just cited it was held that it was not within the contemplation of our general assembly in its enactments governing this matter,- to confer the right to maintain such an action upon parties to the former statutory proceeding; but that it was the intention merely to afford a concurrent remedy for the benefit of one not a party thereto. It was further held that one who had thus availed himself of the statutory proceeding, as-defendant has done, is not in a position in such an action as the present one, to question the jurisdiction of the court in the former proceeding. Counsel for plaintiff in error, -however, say this doctrine would apply had the objection been interposed when the suit was pending in the district court of Larimer county; and that it might have been raised, and would have been sustained in this court upon - á review* of [525] the judgment rendered in that action; but that it is inapplicable upon this hearing. The general assembly, having provided a special procedure for ascertaining and adjudicating the priorities of right to the use of water for irrigation in this state, and having thereby declared that the district court which first properly obtained jurisdiction therein acquired exclusive jurisdiction over such matters, which it maintains over all causes relating thereto, we are of opinion that since it is conceded, and appears of record, that the district court of Boulder county properly obtained jurisdiction in the proceedings which culminated in the decree of 1883, the district court of Larimer county did not, in the action which is relied upon in the fourth defense, have the power to review the decree of the district court of Boulder county, and that its attempt so to do was wholly without jurisdiction and its judgment therein void. It follows from the foregoing that the judgment below should be affirmed, and it is so ordered. Affirmed.