Crews v. Yenter

Mr. Justice Hall delivered the opinion of the Court. We refer to the parties by name or as they appeared in the trial court, where Yenters were plaintiffs and Lewis R. Crews was defendant. On May 8,1938, defendant and one L. E. Crews entered into a written contract with Theodore S. Yenter, hereinafter referred to as Yenter, whereby the Crews agreed to sell and Yenter agreed to buy for the sum of $6500.00 some 570 acres of land located in Yuma County. The purchase price was payable as follows: $1000.00 on the date of the contract; $1000.00 March 1, 1940; the balance of $4500.00 on or before March 1, 1944. Said contract further .provided that on completion of the payments as provided in the contract, Crews would convey, by warranty deed, merchantable title to the lands free of liens and, in addition, would: “ * * * make, execute and deliver * * * a bill of sale for three (3) second feet of water from the Hale Ditch, a plat of which ditch is now of record in the office of the County Clerk and Recorder of Yuma County, Colorado, which bill of sale shall convey such rights in and to said three (3) second feet of water from said Ditch as said first parties may have under and by virtue of adjudication or adjudications now or hereafter made or — 104 — entered by a Court or Courts of competent jurisdiction, relative to said Hale Ditch.” (Emphasis supplied.) This contract further provided that Yenter have the right to take immediate possession, which right Yenter exercised. On May 3, 1943, Yenter having paid the full purchase price as provided by the above contract, Crews executed and delivered to Yenter his warranty deed, whereby he conveyed to Yenter the 570 acres of land: “ * * * together with water and ditch rights, consisting of three (3) second feet of water from the Hale Ditch, a plat of which ditch is now of record in the office of the County Clerk and Recorder of Yuma County, Colorado, conveying hereby such rights in and to said three (3) second feet of water from said ditch as said party of the first part may have under and by virtue of adjudication or adjudications heretofore or hereafter made or entered by a court or courts of competent jurisdiction relative to said Hale Ditch.” On July 30, 1956, Crews, unbeknownst to Yenter, executed, and on August 3, 1956, recorded in Yuma County, a “Correction Deed” whereby he conveyed to Yenter the same lands and the same amount of water as he had conveyed by the above mentioned deed executed May 3, 1943; however, in this correction deed Crews, in describing the water right, inserted the word “extension” after the word “ditch”; this insertion appears four times, which is the number of times the word “ditch” appears. In this deed Crews asserts that it was his intention to convey by the original May 3, 1943, deed to Yenter three feet of Hale Ditch extension water, instead of three feet of Hale Ditch water. At the time this “correction deed” was recorded by Crews he also had recorded his affidavit, wherein he sets forth that he intended to convey Hale Ditch extension water and had no intention to convey any Hale Ditch water. Yenter, on learning of Crews’ actions as above set forth, on August 25, 1956, filed his complaint in this — 105 — action now before us, and asked that the cloud on his title arising out of Crews recording the above mentioned deed and affidavit be removed and that his title to three second feet of water decreed to the Hale Ditch be quieted and confirmed. The defendant answered plaintiff’s complaint and set up the following defenses: 1. The parties intended to buy and sell Hale Ditch extension water, priority No. 40, and did not intend to buy or sell Hale Ditch water, priority No. 38; 2. Laches and estoppel; 3. Waiver; 4. Statute of Limitations — C.R.S. ’53, 147-9-17; 5. Crews’ right to the water by adverse usage thereof; 6. Rights acquired by color of title, seven years’ possession and payment of taxes as provided by CRS '53, 118-7-8. Crews also filed his counterclaim seeking reformation of his deed of May 3, 1943. Trial was to the court without a jury. The court allowed counsel for the parties wide latitude in offering what they considered pertinent testimony. The trial judge entered his findings and decree in favor of Yenter. He found as a fact that: “ * * * there is no patent ambiguity in the deed of May 3, 1943, and that the same did convey to the plaintiff, Theodore S. Yenter, three second feet of water from the Hale Ditch; “That there was no mutual mistake of fact in the execution of the deed of May 3, 1943, and in this connection, the Court points out that the burden of proof is upon the counter-claimant to establish the allegations of mistake by clear and convincing evidence, which he has failed to do. * * * ” The decree provided that: Yenter’s deed of May 3, 1943, is a valid and subsisting deed and conveyed to Yenter three second feet of water from the Hale Ditch; that the 1956 deed and affidavit of Crews are a nullity; — 106 — that Crews be restrained from attacking or seeking to impeach the validity of his 1943 deed to Yenter, and that Crews’ counter-claim for reformation be denied. Crews is here by writ of error seeking reversal. From the record before us we conclude that the trial court correctly determined all of the questions presented for its consideration. Counsel for Crews, in seeking to prove that the parties intended to purchase and sell Hale Ditch Extension water rather than Hale Ditch water, offered, among other matters, proof (1) that Yenter paid only about $11.40 per acre for his land, whereas Crews in 1943 sold 80 acres of land with three feet of Hale Ditch water for $50.00 per acre; (2) that Yenter’s land was never assessed as irrigated land; (3) that Yenter’s land, or at least part of it, lies under the Hale Ditch Extension, rather than the original Hale Ditch; and (4) that Yenter refused to contribute to the maintenance of the Hale Ditch or the extension. The trial judge heard all testimony offered with reference to these matters and concluded that such testimony fell short of the proof required to reform a deed because of mutual mistake. The trial court’s conclusion that there was no patent ambiguity in the deed we find to be amply supported by the record before us. On September 8, 1938-, the district court, by its decree in action No. 2985, “IN THE MATTER OF THE ADJUDICATION OF PRIORITIES OF WATER RIGHTS IN WATER DISTRICT NO. 49 IN THE STATE OF COLORADO” decreed: (a) “That said Hale Ditch shall have * * * Priority No. 38, * * * for irrigation purposes not to exceed 23 cubic feet of water per second of time * * * of date of Jan. 17, 1908.” (b) “That said Hale Ditch Extension shall have * * * Priority No. 40 with date as of May 15, 1908 * * * for — 107 — irrigation purposes not to exceed three cubic feet of water per second of time * * * (c) “That said Hale Ditch Enlargement No. 1 shall have * * * Priority No. 49 * * * for irrigation purposes not to exceed eight and one-half cubic feet of water per second of time * * * as of Nov. 20, 1932.” (Emphasis supplied.) According to this general adjudication decree Crews was found by the court to be one of four claimants of the Hale Ditch; he and his brother, W. T. Crews, were found to be the only claimants to the Hale Ditch Extension, and he and his brother were found to be the only claimants to the Hale Ditch Enlargement No. 1. This water decree and a plat of the Hale Ditch and Hale Ditch Extension were recorded in the office of the County Clerk and Recorder of Yuma County and are referred to in the contract of purchase and sale and the deed from Crews to Yenter. Crews contended and offered proof in support thereof that the name “Hale Ditch” was commonly used to refer to the extension and enlargement as well as the original ditch. The court in its adjudication decree used no such loose language in describing the ditch, the extension and the enlargement, each of which is described in detail in the decree. Certainly anyone armed with Yenter’s contract or his deed could go to the office of the County Clerk of Yuma County and from the records of that office find a full and complete description of what he had purchased when he purchased: “ * * * three (3) second feet of water from the Hale Ditch * * * by virtue of adjudication * * * by a Court or Courts of competent jurisdiction, relative to said Hale Ditch.” Were such person to report that he did not know whether the contract described Hale Ditch water as shown in Book 333, page 472, or Hale Ditch Extension water as shown in Book 333, page 474, of said records, — 108 — he would be disregarding the plain wording of the contract, the deed and the decrees. Turning now to the contentions of Crews, that there was a mutual mistake and that the deed should be reformed. We find ample evidence in the record, if believed, to warrant the conclusion that Crews intended to convey Hale Ditch Extension water — not Hale Ditch water. There is a complete lack of proof that Yenter ever intended to purchase anything other than that described in his contract and deed. Reformation is had to correct mutual mistakes, not one-party mistakes. Its purpose is to make the instrument speak the intentions of both parties, not just one. It appears from the record that Yenter was not familiar with any of these ditches or priorities; possibly he would have accepted the contract had it described the water as Hale Ditch Extension. On the other hand, Crews was familiar with the Hale Ditch, the Hale Ditch Extension and the Hale Ditch Enlargement No. 1 — he was one of the claimants to each of the three priorities; he had participated in the adjudication proceedings which culminated in a decree dated September 8, 1938, exactly eight months before he sold to Yenter. Another bit of evidence that might well lead one to conclude that Crews made no mistake in conveying Hale Ditch water is the admitted fact that Crews, when he signed his contract with Yenter, did not own three feet of Hale Ditch Extension water; he owned only one and one-half feet. His brother, or his brother’s estate, owned the other one and one-half feet, which Crews intended to acquire and later did acquire. At the time he signed the contract, Crews owned five and three-fourths feet of Hale Ditch water. One might well conclude that Crews made no mistake when he entered into the contract to sell that which he had, rather than that which he did not have but hoped to acquire. The trial court, as pointed out above, permitted counsel to present any and all evidence that might bear on — 109 — any of the issues presented, the findings and decree are amply supported by the documents and testimony, and under well established rules are not to be disturbed on review. The judgment is affirmed. Mr. Chief Justice Sutton and Mr. Justice Doyle dissent.