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chase been in the continual and uninterALLEN V. SWADLEY et al.

rupted use, possession, occupancy and control (Supreme Court of Colorado. Dec. 6, 1909.) thereof, and had and still has a prior right 1. WATERS AND WATER COURSES (8 247*)—IR. to the use of the said one-sixth undivided

RIGATION-RIGHTS IN DITCH-SUFFICIENCY part or portion of the said ditch, the right OF EVIDENCE.

of way, the easement thereof, and the said In an action by an administrator to recover a one-sixth interest in the use of the waters of proportionate amount of the water flowing a ditch, in which it is shown that, after 30 years therein and appropriated thereby by a right from the death of decedent, letters of administra- superior to any or all of the said defendants tion were taken out, and that during such time

above named." no claim was made that the estate had any interest therein, evidence held sufficient to sustain

The complaint shows demand on defendants a finding that the estate had no interest therein. in April, 1904, by plaintiff for said interest

[Ed. Note.-For other cases, see Waters and in the ditch and water-right in behalf of Water Courses, Cent. Dig. § 314; Dec. Dig. S the estate and a refusal of the defendants to 247.*]

comply with that demand, and avers further 2. APPEAL AND ERROR (S 1027*)—TECHNICAL a conspiracy, under claim of ownership, beERRORS—RIGHT TO CONCLUSION.

Where the ultimate conclusion on the mer-tween the defendants to confiscate and conits must always be the same, technical errors vert the said interest to their own use. in rulings on evidence will not be noticed.

Paragraph 14 is as follows: [Ed. Note.--For other cases, see Appeal and

"And the said parties including all the Error, Cent. Dig. $ 4033; Dec. Dig. 8 1027.*]

joint tenants named, as well as the other de. Appeal from District Court, Jefferson Coun- fendants with the exception of L. A. Reno ty; A. H. De France, Judge.

and William Allen, have with intent to cheat Action by William M. Allen, administrator, and defraud the said Thomas T. Reno, senior, against George C. Swadley and others. From and his said estate and the heirs and credita judgment for defendants, plaintiff appeals. ors thereof and this said plaintiff, taken posAflirmed.

session of all of the said property of the esGeorge W. Taylor, for appellant. Bene- tate above mentioned and entirely dispossessdict & Phelps and J. W. Barnes, for appellees.ed the said estate of the same, as well as

the heirs and creditors thereof, and this said BAILEY, J. This suit was begun in July, plaintiff, and peremptorily refused to permit 1904, by William M. Allen, in the district this said plaintiff or the said estate or the court of the city and county of Denver, as heirs and creditors thereof to use or in any administrator of the estate of Thomas T. manner enjoy the said property above deReno, deceased, and on July 11th next there- scribed or any part or portion thereof, and after transferred to the district court of Jef- without any right or legal authority have ferson county for trial. It is to recover an converted and appropriated the same to their undivided one-sixth interest in the Swadley own use." ditch, and an equal undivided share of its The plaintiff further alleges that the readecreed water. The complaint avers the due sonable worth of the property which he seeks appointment of plaintiff as administrator of to recover is $2,500, and that a reasonable anthe estate, and ownership, use and possession nyal rental value thereof is $500. The prayer by Reno, as tenant in common with the de- is for a decree and judgment of ownership, fendants and their predecessors in interest, and for possession of the property, and damat the time of his death and prior thereto ages in the sum of $4,000. of the interest in the Swadley ditch and wa- For answer to the complaint the defendants ter-right sought to be recovered, with a state-take issue on practically all of its averment that this title was acquired by purchase ments, including that of the alleged appointfrom one John Reno, who became the owner ment of Allen as administrator of the Reno of an undivided one-third of said ditch and estate, and particularly as to the ownership, water-right in March, 1859. The complaint or right of possession, at any time or at all, further shows that Thomas T. Reno contin- by the Reno estate, of an undivided one-sixth uously during his lifetime owned the east 12 interest of the ditch in question, in its easeof the southeast 14 of section 9, and the west ment, right of way, or in its water right. 12 of the southwest 14 of section 10, town- And for a further answer to the complaint, ship 3 south, range 69 west, in Jefferson and as a part of the first defense, the defendcounty, Colo., upon which land his interest ants plead full settlement, by the administrain the waters of the ditch had been from year tor Eldro Upton, of the Thomas T. Reno esto year continuously and uninterruptedly ap- tate, long prior to the alleged appointment plied for the purpose of irrigation up to the of William M. Allen as administrator theretime of his death.

of; the sale of all of the real estate belongParagraph 9 of the plaintiff's complaint is ing to that estate, and also the fact that no as follows:

ne, neither the administrator, the heirs at "And the said defendant further alleges law, or any other person or persons, ever that the said Thomas T. Reno and his said claimed any interest in the Swadley ditch or estate has ever since the time of the said pur- I the waters thereof, on behalf of the Thomas T. Reno estate, or ever used or enjoyed the of the death of said Thomas T. Reno, desame for that estate, after the death of ceased, and prior thereto, have continued in Thomas T. Reno in 1873. In 1904 William the like open, notorious, exclusive, uninterM. Allen, for the first time, gave expression rupted and adverse possession, use and ento some claim on behalf of the estate of an joyment of said property and property rights interest in the ditch; that during all of this down to the present time; that is to say, period the administrator and the heirs at for a period of more than 32 years prior to law of Thomas T. Reno, deceased, had full the commencement of this suit these defendknowledge of the adverse, undisputed, open ants have expended large sums of money in and notorious possession, claim of ownership, the improvement of said property, all withoccupancy, enjoyment and use by the defend in the knowledge of Thomas T. Reno in his ants and their predecessors of that particular lifetime, and all of his heirs at law, and othinterest and right in said ditch, and the spe- er parties interested in said estate, since cific right to the use of water through it, now his death, without any adverse claim whatclaimed by William M. Allen, as administra- soever being asserted by the said Reno or tor.

his heirs, or any other person or persons in The defendants, for a second defense, plead interest. The defense of estoppel is thus title to said interest in the ditch and water- set forth with great particularity and miright by prescription, alleging in substance nuteness of detail. that for more than 30 years prior to the com- The fourth defense pleads the bar of the mencement of this action and prior to the ap- statute of limitations, in which it is averpointment of William M. Allen as the alleged red in substance, that if any action ever administrator of Thomas T. Reno, deceased, accrued to plaintiff, as administrator of the and since early in the year 1872, the gran-estate of Thomas T. Reno, or to any person tors of these defendants and others claim- representing that estate, or to any one of the ing the same rights and interests, and the heirs thereof, such right or cause of action defendants themselves, have been in the open, accrued more than 30 years prior to the benotorious, exclusive and uninterrupted pos- ginning of this suit, and is therefore barred session, use and enjoyment of the specific at the time of the commencement of this property and property rights and interest now suit and now. claimed herein by the plaintiff as alleged ad- On the new matter of the answer, and on ministrator of the estate of the deceased each separate defense thereof, the plaintiff Thomas T. Reno; and that such occupancy, took issue in reply. Trial was had to the enjoyment, possession and use has been ad-court, and findings, upon which a judgment verse to the said Thomas T. Reno and to all of dismissal was predicated, were entered, of the world, and has been without let, hin- general in their nature, and to the effect that drance, claim or demand from any person or at the time of the commencement of this persons whomsoever; and that by reason action the estate of Thomas T. Reno had thereof the said plaintiff and all persons no interest in the Swadley ditch or waterclaiming by, through or under the said Thom-right. as T. Reno, deceased, are barred by lapse of The material facts disclosed at the trial time and prescription from asserting any sup- are in brief about as follows: Thomas T. posed right, claim or interest in, and from Reno, in 1861, took a bill of sale from one maintaining this action to dispossess or de John Reno, his son, for an undivided oneprive the defendants of, the property and the half of the latter's interest in the Swadley property rights in question.

ditch and water-right, which one-half inFor a third defense the defendants plead terest is described, in the bill of sale, as beand say in substance: That Thomas T. Reno ing an undivided one-eighth of the whole died intestate in the month of July, A. D. ditch. In July, 1873, Thomas T. Reno died 1873, and that, at the time of his death he intestate. In 1875 one Eldro Upton was apwas not in possession, use or enjoyment of pointed administrator of the estate, which, any of the property or property rights claim- according to the inventory then filed, coved by the plaintiff as administrator; that ered and included both real and personal for a long time prior to the death of said de- property, but no ditch or water-right. Under ceased, and for more than a period of one orders of the county court of Jefferson counyear previous thereto, he had not been in ty, which had appointed him administrator, possession, use and enjoyment of said prop- Upton disposed of the personal property of erty and property rights; that for some time the estate, and borrowed money on all of preceding the death of Thomas T. Reno, its real estate, which was later sold under and at the time thereof, other persons and mortgage foreclosure, and fully administerparties under whom these defendants claim, ed, to all intents and purposes, that estate. and these defendants, were in the open, no- However, Upton filed no final report and torious and exclusive possession thereof, procured no order of discharge, and moved claiming adversely to said Reno, and to all away, and for more than 20 years immethe world; that the persons so holding and diately preceding November, 1903, had not claiming adversely, and these defendants been heard of. About the date last above and others claiming through and under said referred to William M. Allen found, among Reno, an account in favor of W. A. H. Love-, had proceeded with the acquisition and imland, who had been dead many years, on provement of farming lands under the ditch, which there was due a claimed balance of making use of their respective water-rights $18.23; it had remained among the papers, to that end. In the claims thus asserted and without being acted upon, for about 30 in the use of water accordingly, Allen had

, years, and the bill was over 34 years of age been acting with the others, maintaining his when Allen discovered it. At the same time, one-eighth interest in the ditch as the others among the same papers, there was also un- had maintained their respective portions. covered another trifting account for $10.10, When, after a lapse of 30-odd years, with the in favor of the firm of Messrs. Michael & situation respecting the ownership of the Co., equally ancient and venerable with the ditch and the use of water therefrom, as Loveland claim. On the strength of these above related, unchanged, in 1904 Allen sudstale accounts William M. Allen got himself denly demanded for himself a one-sixth inappointed administrator of the estate of terest in this ditch, and acting as administraThomas T. Reno in the place of Eldro Upton, tor of the state of Thomas T. Reno, deceased, by the probate court of Jefferson county, another one-sixth interest. No claim whatand on his own motion procured the allow-ever from the time of the death of Thomas ance of these claims, although the statute of T. Reno in July, 1873, up to April, 1901, had limitations had run against them for more ever been made by anybody that this estate than a quarter of a century. No one repre- had any interest in the ditch, nor had there senting the claimants requested their al- been any use made thereof on its account. lowance, but it was at the behest of the ad- In order to swell his individual right of oneministrator Allen that the claim of $18.23, eighth interest, which he had enjoyed and increased by interest to $61.73, and that for used for over 36 years, to a one-sixth, and $10.10, increased by interest to $21.05, were also to secure for the Reno estate, as adfavorably considered by the court and made ministrator, a one-sixth interest in the ditch, charges against the estate of Thomas T. Allen, in the month last above mentioned, arReno, deceased.

bitrarily changed the manner of the division The Swadley ditch has been in existence of the water which had obtained for years, since prior to 1860, and until the present and sought to apportion it according to his trouble arose its course seems to have been own notion of what the relative interests in smooth and the parties interested in it seem the ditch and water were. When he underto have gotten along without apparent fric- took to thus change the division, some of tion. Some time in the later 60's this ditch the defendants protested and restored matwas divided up, that is, marked off into sec-ters to the original situation, so as to contions, according to the number of interests tinue the division as it had stood for a generin it, and instead of a fund being provided ation, whereupon Allen, as administrator, for the care and maintenance of the ditch as commenced this suit, and also one in his own a whole, it was kept in repair by the differ- right, to recover in each one an one-sixth inent owners looking after their respective sec- terest in the Swadley ditch and water-right. tions. There were eight sections, but only There is abundant competent testimony to five owners, one owner having an undivided show that Thomas T. Reno in his lifetime, one-half interest, George C. Swadley, or four- some time in the early 70's, disposed of his eighths, and four other owners one-eighth interest in this ditch to the Farmer Bros. apiece, who were William M. Allen, holding The court must, by its general finding, have in his individual right, Louis Reno, the Lon- reached that conclusion, and although upon gans, and the Farmer Bros. Later other par- this point there is substantial conflict in the ties became interested in portions of the testimony, still that conclusion finds ample Swadley interest; the defendant Cole suc- support in the proofs. The testimony furceeded to the Longan interest, and the Se- ther shows that for some time prior to his crests and others to the Farmer interest. death, Thomas T. Reno took no water from

For over 30 years Allen took care of his this ditch and did nothing toward its mainportion of the ditch and got one-eighth of the tenance. It also further appears that from water; during the same period the Longans the time of his death, in 1873, to 1904, when and those claiming under them cared for Allen, in his capacity as administrator, made their section and got one-eighth of the wa-demand upon the defendants for a one-sixth ter; the Farmers and their successors for a interest in this ditch and water, as belonglike interest; Louis Reno, for the same pe- ing to the estate of Thomas T. Reno, there riod, held, used, enjoyed and cared for his had been no claim from any source, or by section and got one-eighth of the water; and any one, that the Reno estate had any interGeorge C. Swadley cared for the remainder est therein whatsoever. The original adminof the ditch and received the balance, or four-istrator, Upton, claimed no interest and made eighths of the water. During this entire pe- no inventory of any. Louis Reno, a son of riod each user of water from the ditch, and Thomas T. Reno and a joint owner in the their respective predecessors and grantors, ditch, made no such claim. Neither did Mrs. claimed ownership in, had possession thereof William M. Allen, the wife of this plaintiff, and use of water therefrom, in the propor- and daughter of Thomas T. Reno, make such in that immediate vicinity during this whole judgment and decree, which we approve in period, living in Jefferson county, and had every particular. personal knowledge of the operation of the Judgment affirmed. ditch, of the claims of ownership therein, and for over 30 years failed to assert any

STEELE, C. J., and WHITE, J., concur. claim of interest in or right to said ditch or its waters in behalf of their father's estate. It is also to be particularly noted that the

ALLEN V. SWADLEY et al. specific land which belonged to the Thomas T. Reno estate, and upon which originally

(Supreme Court of Colorado. Dec. 6, 1909.) was used for its irrigation the water which WATERS AND WATER COURSES ($ 247*)—IRhe got from this ditch, was mortgaged by

RIGATION-RIGHTS IN DITCH-SUFFICIENCY

OF EVIDENCE. the administrator Upton, and some time in

In an action to recover a one-sixth interest 1875 passed entirely from said estate by fore- in a ditch, in which it is shown that for more closure sale under that mortgage, leaving the than 30 years one-eighth had been used and claim

ed, evidence considered, and held amply sufficient estate without real estate holdings.

to sustain a finding that plaintiff had no other There is no question of law involved, neces- rights than the one-eighth interest. sary to be determined, as we view the matter,

[Ed. Note.-For other cases, see Waters and and the controversy may well be settled upon Water Courses, Cent, Dig. $ 314; Dec. Dig. S purely questions of fact. The case, to say

247.*) the least, is most extraordinary, indeed we

Appeal from District

District Court, Jefferson believe it to be without a parallel in the County; A. H. De France, Judge. history of the jurisprudence of this state.

Action by
The court below heard all of the testimony, George C. Swadley and others.

by William M. Allen against

From a saw practically all of the witnesses, and was judgment for defendants, plaintiff appeals. therefore perfectly equipped and qualified to

Affirmed. pass upon the facts. That was its special and peculiar province. Its findings in this

George W. Taylor, for appellant. Benedict respect, based as they were on conflicting & Phelps and J. W. Barnes, for appellees. testimony, are conclusive upon this court. They are manifestly warranted, and we have

BAILEY, J. This was an action by Wilno disposition whatever to disturb them, even liam M. Allen for a decree of ownership in, had we the power and authority so to do. and right to the possession, use and enjoyWe have carefully read the voluminous rec-ment of, an undivided one-sixth interest in ord and are unable to conceive how, from any the Swadley ditch and water-right. It was view point, the conclusion of the trial court consolidated for trial and tried with the could have been different. Considering the case of William M. Allen, administrator, great lapse of time, during which no claim against the same defendants, brought to rewhatsoever was made in behalf of the Thom- cover a like interest in the same ditch and as T. Reno estate to an interest in this ditch, water-right, on behalf of the estate of Thomit is fair to say that the testimony fails utter- as T. Reno, deceased, just decided by this ly to establish, with that certainty and direct court. The pleadings were substantially the ness, which under the peculiar facts of this same in both cases, differing only where neccase ought to be required and demanded, that essary to properly state Allen's claim of the estate, as such, ever had any right, title right as distinguished from that of the esor interest whatsoever in the Swadley ditch, tate of Thomas T. Reno, deceased. The deor its water-right.

cision in the latter case is largely controlling There may have been, strictly speaking, here, the claimed source of title in both technical error on the part of the court in cases being the same. The contention is the admission and exclusion of testimony. that one John Reno was the owner of an unWe do not consider in detail these objections. divided one-third interest in this ditch and It is so clear, upon the merits of the whole water-right, and that each plaintiff acquired controversy, that the estate cannot recover, an undivided one-sixth interest in the whole that discussion of mere technical objections ditch and water-right, or each one-half of the can avail nothing. In a case like this certains alleged interest of John Reno therein. As ly no mere technicalities should be permitted in the other case so here, the court found the to intervene to aid, encourage and prolong facts against the plaintiff and dismissed the litigation, in support of a right of such doubt action. Reference is hereby made to the ful import as the one here involved, since, in opinion in the other case, which contains a any event, the ultimate conclusion upon the full statement of facts, many of which are merits must be always the same. Indeed applicable here. we are aware of no principle of law, that It is undisputed that in 1868 Allen purcan possibly be invoked and applied, which chased certain lands, and an interest in the can, under the facts of the case that are un- Swadley ditch and water-right, from John disputed, warrant a different result than the Reno, taking his deed therefor. In this deed one embodied by the trial court in its final l the interest in the ditch and water-right conveyed, was stated as being one-eighth. From there was a mistake in the John Reno deed that time on down to 1904 Allen maintained, in 1868, which had gone undiscovered, unused and enjoyed an undivided one-eighth in- suspected and uncorrected for over 36 years, terest in that ditch and water, as tenant in but on the contrary, we think the testimony common with the defendants and their gran- plainly establishes that the interest which tors and predecessors in interest. He never John Reno had left in this ditch and waterclaimed any other or different interest, un- right, in 1868, and which he conveyed to til about the time this suit was commenced, William M. Allen, was exactly one-eighth and never used, maintained, possessed or thereof, being the precise share or portion enjoyed any other or different interest. The which he then transferred to the plaintiff. other seven-eighths interest in the ditch and The court's finding, and the judgment and water had been, during all of this period, decree of dismissal entered thereon, were used, occupied, possessed and maintained by correct, and are accordingly affirmed. the defendants and their grantors and pred- Judgment affirmed. ecessors. Some time in the early 90's, exactly when is not clear from the testimony, STEELE, C. J., and WHITE, J., concur. Allen conceived the notion that instead of the one-eighth interest in this ditch and water-right which was transferred by John Re- BALDWIN STAR COAL CO. v. QUINN et al. no he should have gotten one-sixth. And so

(Supreme Court of Colorado. Dec. 6, 1909.) some 35 years after the execution of the orig. 1. INJUNCTION ($ 261*) DAMAGES FOR inal conveyance he got John Reno to execute

WRONGFUL INJUNCTION-ATTORNEY'S FEES. a quitclaim deed conveying to him a one- In awarding damages for the wrongful sixth interest therein. This instrument pur- suing out of a writ of injunction, anything paid ports to have been given to correct a mis- attorneys by the party enjoined, for services in

the case generally, should not be included. take in the original deed, as to the extent of

[Ed. Note. For other cases, see Injunction, the interest in that property thereby convey- Dec. Dig. & 261.*] ed. Armed and fortified with the fresh deed 2. APPEAL AND ERROR (8 1097*) — PREVIOUS Allen forthwith begins this suit against the DECISION OF COURT OF APPEALS--LAW OF defendants to recover one-sixth interest in

THE CASE ON APPEAL TO SUPREME COURT. the ditch, alleging at great length ouster, is the law of the case on a subsequent trial, it is

Though a decision by the Court of Appeals fraud and conspiracy on their part to de- not so for the Supreme Court on a subsequent prive him of his proper proportion thereof appeal. and therein. It is to be noted that plaintiff's Error; Cent. Dig. § 4365; Dec. Dig. $ 1097.*]

[Ed. Note.-For other cases, see Appeal and right to have, use, possess and enjoy an Error, Cent. Dig. $ 4365; Dec. Dig. 1097.*] eighth of this property is not now and never 3. TRIAL ($ 165*)—MOTION FOR NONSUIT-DE

TERMINATION ON EVIDENCE FOR PLAINTIFF. has been questioned. The purpose of this

There being no evidence for defendants, evisuit was simply to swell the one-eighth in-dence for plaintiff and all legitimate inferences terest to one-sixth. The issues made by the therefrom must be taken as true in ruling on a pleadings are substantially the same as in motion by defendants for nonsuit. the case above referred to. The plaintiff Dig. 8 374; Dec. Dig. & 165.*)

[Ed. Note.-For other cases, see Trial, Cent. assumed in this case the burden of showing 4. PUBLIC LANDS ($ 106*) — FEDERAL LAND that John Reno originally owned a one-third

DEPARTMENT - EFFECT OF PERMITTING interest in the ditch and water-right, and AMENDED ENTRY. in 1868, when the deed was made to him, tion to permit an amended entry to be made and

The federal land department has jurisdicthat John Reno still owned at least that to cancel an entry on the ground ef fraud, and large an interest in the property, and that he having done so in a particular proceeding, and actually sold to plaintiff that specific por- determined that a fraud was perpetrated on the tion.

government by one making an entry conflicting In view of the long period, during which and that his entry was fraudulent, his alleged

with an amended entry permitted to be made, the plaintiff used, was content with, and rights thereunder were void ab initio. made no claim for any other than one-eighth [Ed. Note.-For other cases, see Public Lands, of the property, the proof to establish his Dec. Dig. § 106.*] claim, at this late day, to a greater interest 5. MINES AND MINERALS ($ 35*)-DECISION OF therein, should have been clear, direct and

SECRETARY OF INTERIOR COLLATERAL AT

TACK. convincing, certainly sufficiently so to leave The decision of the Secretary of the Inno reasonable doubt in the mind of the terior, in annulling an entry on coal land and court of the entire and absolute propriety of permitting amendment of another entry and isgranting such increase. That the testimony suing a patent pursuant to the latter entry, canwas not satisfactory is plainly indicated by

TEd. Note. For other cases, see Mines and the court's finding, with which we are in Minerals, Dec. Dig. & 35.*] full and perfect accord, and which, for man- 6. MINES AND MINERALS (8 29*) - PUBLIC ifest and obvious reasons, not needful of MINERAL LANDS — TITLE AND RIGHTS OF enumeration, should now be upheld. There FRAUDULENT ENTRYMAN.

By a fraudulent entry on coal land, a claimis not only no clear, convincing, or even per- ant acquired no rights to the premises, and his suasive affirmative testimony, to show that alleged title was void ab initio, nor could he

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