Monte Vista Canal Co. v. San Luis Valley Irrigated Land Co.

King, J., delivered the opinion of the court. Motion is made to remand this cause to the supreme court for the reason that the decision necessarily relates to or involves a freehold. The judgment appealed from was rendered by the district court in a statutory proceeding for permission to change the point of - diversion of decreed water-rights. So far as applicable to this motion, the facts and conditions are substantially the same as in case No. 3649, The Monte Vista Canal Co. et al. v. Centennial Irrigating Ditch Co., decided at this term, with the exception that in the present case appellants have challenged the validity or sufficiency of a deed by which appellee claims title to an irrigation ditch and a water right, conveyed or attempted [377] to be conveyed to it by the town of Alamosa. This ditch or water right is not claimed by any of the appellants, and if the title thereto is in issue in this proceeding, it is only incidentally or collaterally so, and a freehold is not thereby involved. — Harvey v. Travelers’ Ins., Co., 18 Colo., 354. McCandless v. Green, 20 Colo., 519. Callbreath v. Hug, 48 Colo., 202. For the reasons more fully stated in Monte Vista Canal Co. et al. v. Centennial Irrigating Ditch Co., supra, the motion herein to remand is denied.