Tubbs v. Roberts

Mr. Justice Goddard delivered the opinion of the court: Hpon a careful examination of the record, we are unable to find any evidence to support the decree rendered. The defendant acquired no right, by conveyance or otherwise, to the Davis ditch, or to any right acquired by Davis by his appropriation and the use of water through and by means of such ditch. He did not make, or attempt to make, any appropriation of water from the natural stream. [505] Whatever right, therefore, he may have to the use of the water is measured by the amount or quantity he diverted from the Davis ditch through the laterals he described, and applied to beneficial uses before an appropriation thereof, if any, was made by plaintiff. The quantity of water so diverted, according to his testimony, did not at any time exceed fifty inches for domestic, and one hundred inches for irrigation, purposes. In these circumstances, the amount of water awarded defendant was excessive, even if it be assumed that the defendant initiated a right to the full amount of water he actually diverted and used prior to the date of the appropriation claimed by plaintiff. It therefore becomes unnecessary to consider any other question touching the relative rights of these parties. It is contended by counsel for appellee that the sufficiency of the evidence to support the decree cannot be considered under the assignments of error upon this review: 1. Because no motion for a new trial was interposed in the trial court, nor any request for findings or a decree different from those given. In support of this contention counsel rely upon Hall v. Linn, 8 Colo. 264, and Hall v. Rockwell, Ibid. 103. The rule announced in these cases is applicable only where the court refers certain facts to a jury in an equitable action, but in an equitable action tried to the court, when an exception is reserved to the judgment and properly preserved in the record, the evidence as a whole may be examined for the purpose of ascertaining if it will sustain the judgment, even though no objection was interposed to its reception. — Jerome v. Bohm, 21 Colo. 322; Phelps v. Spruance, 1 Colo. 414; Breen v. Richard [506] son, 6 Colo. 605; Burnell v. Wachtel, 4 Colo. App. 556. 2. Because the replication did not traverse the substantial allegations of the cross-complaint, including that of damages, except the averment that the defendant acquired the right to the ditch and appropriation made by Davis. It is sufficient to say that this question was not raised in the court below, hut the parties proceeded with the trial upon the theory that all the allegations in the cross-complaint were in issue. Having thus proceeded as though the matters alleged in the cross-complaint were -in issue, it is too late now to raise the objection for the first time that in fact they were not traversed by the replication. — Jerome v. Bohm, supra; Quimby v. Boyd, 8 Colo. 194; Robinson Reduction Co. v. Johnson, 10 Colo. App. 135, 139. The evidence introduced in support of plaintiff’s claim for damages was inadmissible under the rule laid down by this court and the court of appeals in the following cases: N. C. Irri. Co. v. Richards, 22 Colo. 450, 458, 460; Colo. Con. L. & W. Co. v. Hartman, 5 Colo. App. 150. For the foregoing reasons the judgment will be reversed and the cause remanded. Reversed. Chiee Justice Steele and Mr. Justice Bailey concur. _