Wolff v. Farmers' Highline Canal & Reservoir Co.

Mr. Justice Garrigues delivered the opinion of the court. 1. This proceeding was brought by Wolff and others in the district court for the City and County of Denver, to change the point of diversion of certain adjudicated water rights in Wáter District No. 7. The district court entered a decree granting the change. The case was appealed to the supreme court and transferred by it to the court of appeals under the provisions of chapter 107 S. L. 1911, where the judgment of the district court was reversed. (See Farmers’ Co. v. Wolf, 23 Colo. App. 570, 131 Pac. 29.) Petitioners in the district court, plaintiffs in error here, then sued out a writ of error from this court to review the judgment of the court of appeals, which protestants in the district court, defendants in error here, moved to dismiss, on the following grounds: that this court is without jurisdiction because the judgment of the court of appeals does not relate to a franchise [458] or freehold; that there was no money judgment for more than $5,000.00; and no provision of the state or federal constitutions necessarily involved in the decision. 2. The motion to dismiss the writ of error will be sustained. Section 6. of the act creating the court of appeals, provides: ‘ ‘ That in causes thus transferred from the supreme court to the court of appeals, whether pending on appeal or error, wherein the decision necessarily involves the construction of a provision of the federal or state constitution, or relate to a franchise or freehold, or a judgment for more than $5,000, exclusive of costs, such decision thereof by the court of appeals shall not be final. Such cases may be reheard in the supreme court by writ of error from the latter court, under rules to be adopted by it. ’ ’ We think by the provisions of this chapter, the judgment of the court of appeals is final, and this court is without jurisdiction to review it upon error. The judgment of the court of appeals, reversing the decree of the district court allowing the change in the point of diversion, does not deprive petitioners of any freehold interest they possess in the water rights. The freehold in such case is not affected or involved within the meaning of the statute.—Knowles v. Ditch Co., 27 Colo. 469, 63 Pac. 317; Park v. Park, 28 Colo. 447, 65 Pac. 38. Motion sustained and writ dismissed. Decision en banc.