Rollins v. Fearnley

Mr. Justice Bailey delivered the opinion of the conrt: Upon the question of the payment of the annual state license tax, the proof shows that, prior to the hearing, the defendant company paid the same, and submitted in evidence a properly authenticated certificate to that end. This disposes of the contention in that behalf. That this payment was in time, is supported by the opinion of this court in the case of The Ohio M. & M. Company v. Rufus C. Elder et al., reported in 99 Pac., at page 42, where leave was given to the plaintiff in error, even at that late day, to pay said tax and produce the proper proof thereof, and thus avoid a dismissal of the writ of error on that ground.. The statute seems to indicate by its very terms that such course is admissible, because it provided expressly that, until said taco is paid, a defaulting company may neither maintain nor defend a suit, thereby implying that it may do either, whenever such disqualification is removed. Under the facts here disclosed, this defense was therefore not available to the plaintiff against said cross-complaint, after a compliance by the defendant company with the requirements of the law. On the main question, assuming the decree relied upon by the plaintiff, in so far as it attempts to adjudicate the priority of the right of the J. D. Ward Ditch No. 2, under the special statutory proceeding, as between it and other ditches taking water from the same source, is valid, though we do not expressly so decide, still that decree is in no sense res adjudícala, as between the rights of the several eláimants to the ownership of the ditch itself, and of'their respective rights to the use of water through it. In [324] the statutory proceeding it is not contemplated that the ownership of the ditches or of the .rights of the various users, as between themselves, of water through them are to be determined. Such a decree furnishes no basis for injunctive relief by one claimant to the use of water through a given'ditch as against another claimant with equally good and possibly superior rights therein. In so far as this decree purports to settle and fix relative rights of individual users and consumers of water through said ditch, it is ineffectual. Manifestly so, where no actual notice was given to other claimants that an attempt would be made to obtain a decree of that character. The statutory proceedings • in question were and are not intended for that purpose, but simply to adjudicate the priorities of right as between the several ditches of a district drawing water from a common source. It may well be doubted, even where parties submit themselves to the jurisdiction of the court in such special proceedings, whether their respective conflicting rights to the use of water through a specified ditch could then be lawfully adjudged, such course not being within the purview of the law. This doctrine has abundant support in the decisions of this court and of the court of appeals. In Oppenlander v. Left Hand Ditch Company, 18 Colo. 147, where the direct contention was made that such an adjudication was res adjudicaba as between the several claimants as to the right to the use of water through the same ditch, this announcement was made: “In respect to this, claim, it may be said that decrees rendered under the acts of 1879' and 1881, determining the priorities and the amount of the appropriations of the several ditches in an irrigation district, are not intended to designate the person or [325] persons entitled to the use of the water thus appropriated. Such a decree is not res judicata as to the party or parties entitled to the control of a particular ditch or to the use of water conveyed through the same, but only as to the priority and amount of appropriation of such ditch.” The cases of Evans v. Swan, et al., 38 Colo. 92, and O’Neil v. Fort Lyon Canal Co 39 Colo. 487, are to the same effect. In Putnam v. Curtis et al., 7th Court of Appeals, at page 440, having reference to a like contention, it was sáid: “The answer sets up the former decree as an adjudication of the questions involved in this suit, and by which the plaintiff was barred. In other, words, it is claimed that, by reason of that decree, this cause of action is res adjudicata. That decree was not and could not be an adjudication of any right or claim of the plaintiff’s grantors, as between them and the other owners of the same ditch. It does not purport to determine what persons owned the ditch,. or what their respective interests in it, or the water which it carried, were; but if the court had, in that proceeding, undertaken to adjust the rights and proportionate interests of the several claimants of the ditch, as against each other, its judgment would have been to that extent a nullity. The proceeding in which the decree was rendered was a special one, provided by the statute for the sole purpose of ascertaining and adjudicating the priorities of right to the use of water between the several ditches, canals and reservoirs in the same water district. The statute invests the court with jurisdiction to establish the rank of the several ditches with relation to each other, based upon the different dates of appropriation of water, the quantity appropriated, and the means employed to utilize it; and to award to each [326] the priority- to which it may be entitled; but it does not authorize inquiry into the relative rights of co-claimants in the same ditch, or any adjustment of their disputes amongst themselves.” . -Upon the hearing, the trial judge, at the conclusion of the testimony, found that the equities of the case, instead of being with the plaintiff, were with the defendants. This was and is in effect a finding that the plaintiffs must have had knowledge of the claimed rights of defendants, and their grantors, in and to the ditch in question, and to the use of water for irrigation purposes -through it. This conclusion finds ample support in the testimony, and is undoubtedly correct. The court’s determination of the matter means also that plaintiff, with full information of the rights of the defendants, sought and obtained without notice, or attempt at notice, to them, other than of a constructive character, a decree of court adjudging him to be the sole owner of the ditch in question, with the exclusive right to the use of water through- it for irrigation. Thus equipped, he presents himself in a court of equity, and asks injunctive relief against those upon whom he has perpetrated this wrong. ..The judge belqw denied this relief, and promptly dismissed plaintiff’s complaint as being without equity, and such action,-upon the facts here disclosed was right and meets our unqualified approval. The only other alleged error which deserves notice is that the court dismissed the cross-complaint without determining the rights of the various parties claiming an interest in, and the right to the use of water through,' said ditch. Had the defendants assigned .cross-error on such action of the court, a question of some difficulty might be presented. But since the action of the court in that particular was the very thing which the plaintiff, from the moment the [327] cross-complaint was filed, and constantly thereafter, urged the court to take, he at least ought not to he heard to complain. It would indeed present a unique proposition had the court, on plaintiff’s motion, stricken the cross-bill, if he were permitted now to urge such action as erroneous. The situation is not greatly different in the present state of the record. When, during the progress of the trial, the fact developed that all of the parties necessary and essential to a complete determination of the controversy were not before the court, and no effort was then made by any one already there to have such other parties brought in, we are not prepared to say that the court might not, with entire propriety, dismiss the proceedings. In any event, the case should not be reversed on this ground at the behest of the plaintiff. All matters affecting his rights, as alleged and set forth in his complaint, were correctly determined by the trial court, and as he alone is here complaining, the judgment will be affirmed, leaving the parties to their appropriate remedy for an adjudication, among themselves, relative to the ownership of said ditch and their respective rights to the use of water therein. Affirmed. Chief Justice Steele and Mr. Justice White concur. •