ALLEN v. SWADLEY et al. (Supreme Court of Colorado. Dec. 6, 1909.) 1. WATERS AND WATER COURSES (§ 247*)-IR. RIGATION-RIGHTS IN DITCH-SUFFICIENCY OF EVIDENCE. In an action by an administrator to recover a one-sixth interest in the use of the waters of a ditch, in which it is shown that, after 30 years from the death of decedent, letters of administration were taken out, and that during such time no claim was made that the estate had any interest therein, evidence held sufficient to sustain a finding that the estate had no interest therein. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 314; Dec. Dig. 8 247.*] 2. APPEAL AND ERROR (§ 1027*)-TECHNICAL ERRORS-RIGHT TO CONCLUSION. Where the ultimate conclusion on the merits must always be the same, technical errors in rulings on evidence will not be noticed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4033; Dec. Dig. § 1027.*] Appeal from District Court, Jefferson County; A. H. De France, Judge. Action by William M. Allen, administrator, against George C. Swadley and others. From a judgment for defendants, plaintiff appeals. Affirmed. George W. Taylor, for appellant. Benedict & Phelps and J. W. Barnes, for appellees. BAILEY, J. This suit was begun in July, 1904, by William M. Allen, in the district court of the city and county of Denver, as administrator of the estate of Thomas T. Reno, deceased, and on July 11th next thereafter transferred to the district court of Jefferson county for trial. It is to recover an undivided one-sixth interest in the Swadley ditch, and an equal undivided share of its decreed water. The complaint avers the due appointment of plaintiff as administrator of the estate, and ownership, use and possession by Reno, as tenant in common with the defendants and their predecessors in interest, at the time of his death and prior thereto of the interest in the Swadley ditch and water-right sought to be recovered, with a statement that this title was acquired by purchase from one John Reno, who became the owner of an undivided one-third of said ditch and water-right in March, 1859. The complaint further shows that Thomas T. Reno continuously during his lifetime owned the east 2 of the southeast 14 of section 9, and the west 11⁄2 of the southwest 4 of section 10, township 3 south, range 69 west, in Jefferson county, Colo., upon which land his interest in the waters of the ditch had been from year to year continuously and uninterruptedly applied for the purpose of irrigation up to the time of his death. chase been in the continual and uninterrupted use, possession, occupancy and control thereof, and had and still has a prior right to the use of the said one-sixth undivided part or portion of the said ditch, the right of way, the easement thereof, and the said proportionate amount of the water flowing therein and appropriated thereby by a right superior to any or all of the said defendants above named." The complaint shows demand on defendants in April, 1904, by plaintiff for said interest in the ditch and water-right in behalf of the estate and a refusal of the defendants to comply with that demand, and avers further a conspiracy, under claim of ownership, between the defendants to confiscate and convert the said interest to their own use. Paragraph 14 is as follows: "And the said parties including all the joint tenants named, as well as the other defendants with the exception of L. A. Reno and William Allen, have with intent to cheat and defraud the said Thomas T. Reno, senior, and his said estate and the heirs and creditors thereof and this said plaintiff, taken possession of all of the said property of the estate above mentioned and entirely dispossessed the said estate of the same, as well as the heirs and creditors thereof, and this said plaintiff, and peremptorily refused to permit this said plaintiff or the said estate or the heirs and creditors thereof to use or in any manner enjoy' the said property above described or any part or portion thereof, and without any right or legal authority have converted and appropriated the same to their own use." The plaintiff further alleges that the reasonable worth of the property which he seeks to recover is $2,500, and that a reasonable annyal rental value thereof is $500. The prayer is for a decree and judgment of ownership, and for possession of the property, and damages in the sum of $4,000. For answer to the complaint the defendants take issue on practically all of its averments, including that of the alleged appointment of Allen as administrator of the Reno estate, and particularly as to the ownership, or right of possession, at any time or at all, by the Reno estate, of an undivided one-sixth interest of the ditch in question, in its easement, right of way, or in its water right. And for a further answer to the complaint, and as a part of the first defense, the defendants plead full settlement, by the administrator Eldro Upton, of the Thomas T. Reno estate, long prior to the alleged appointment of William M. Allen as administrator thereof; the sale of all of the real estate belong Paragraph 9 of the plaintiff's complaint is ing to that estate, and also the fact that no as follows: one, neither the administrator, the heirs at law, or any other person or persons, ever claimed any interest in the Swadley ditch or the waters thereof, on behalf of the Thomas "And the said defendant further alleges that the said Thomas T. Reno and his said estate has ever since the time of the said pur ceased, and prior thereto, have continued in the like open, notorious, exclusive, uninterrupted and adverse possession, use and enjoyment of said property and property rights down to the present time; that is to say, for a period of more than 32 years prior to the commencement of this suit these defendants have expended large sums of money in the improvement of said property, all within the knowledge of Thomas T. Reno in his lifetime, and all of his heirs at law, and other parties interested in said estate, since his death, without any adverse claim what 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 Thomas T. Reno in 1873. In 1904 William M. Allen, for the first time, gave expression to some claim on behalf of the estate of an interest in the ditch; that during all of this period the administrator and the heirs at law of Thomas T. Reno, deceased, had full knowledge of the adverse, undisputed, open and notorious possession, claim of ownership, occupancy, enjoyment and use by the defendants and their predecessors of that particular interest and right in said ditch, and the specific right to the use of water through it, now claimed by William M. Allen, as administra-soever being asserted by the said Reno or tor. his heirs, or any other person or persons in interest. The defense of estoppel is thus set forth with great particularity and minuteness of detail. The fourth defense pleads the bar of the statute of limitations, in which it is averred in substance, that if any action ever accrued to plaintiff, as administrator of the estate of Thomas T. Reno, or to any person representing that estate, or to any one of the heirs thereof, such right or cause of action accrued more than 30 years prior to the beginning of this suit, and is therefore barred at the time of the commencement of this suit and now. The defendants, for a second defense, plead title to said interest in the ditch and waterright by prescription, alleging in substance that for more than 30 years prior to the commencement of this action and prior to the appointment of William M. Allen as the alleged administrator of Thomas T. Reno, deceased, and since early in the year 1872, the grantors of these defendants and others claiming the same rights and interests, and the defendants themselves, have been in the open, notorious, exclusive and uninterrupted possession, use and enjoyment of the specific property and property rights and interest 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 time and prescription from asserting any supposed right, claim or interest in, and from maintaining this action to dispossess or deprive the defendants of, the property and the property rights in question. For a third defense the defendants plead and say in substance: That Thomas T. Reno died intestate in the month of July, A. D. 1873, and that, at the time of his death he was not in possession, use or enjoyment of any of the property or property rights claimed by the plaintiff as administrator; that for a long time prior to the death of said deceased, and for more than a period of one year previous thereto, he had not been in possession, use and enjoyment of said property and property rights; that for some time preceding the death of Thomas T. Reno, and at the time thereof, other persons and parties under whom these defendants claim, and these defendants, were in the open, notorious and exclusive possession thereof, claiming adversely to said Reno, and to all the world; that the persons so holding and claiming adversely, and these defendants and others claiming through and under said The material facts disclosed at the trial are in brief about as follows: Thomas T. Reno, in 1861, took a bill of sale from one John Reno, his son, for an undivided onehalf of the latter's interest in the Swadley ditch and water-right, which one-half interest is described, in the bill of sale, as being an undivided one-eighth of the whole ditch. In July, 1873, Thomas T. Reno died intestate. In 1875 one Eldro Upton was appointed administrator of the estate, which, according to the inventory then filed, covered and included both real and personal property, but no ditch or water-right. Under orders of the county court of Jefferson county, which had appointed him administrator, Upton disposed of the personal property of the estate, and borrowed money on all of its real estate, which was later sold under mortgage foreclosure, and fully administered, to all intents and purposes, that estate. However, Upton filed no final report and procured no order of discharge, and moved away, and for more than 20 years immediately preceding November, 1903, had not been heard of. About the date last above referred to William M. Allen found, among Reno, an account in favor of W. A. H. Loveland, who had been dead many years, on which there was due a claimed balance of $18.23; it had remained among the papers, without being acted upon, for about 30 years, and the bill was over 34 years of age when Allen discovered it. At the same time, among the same papers, there was also uncovered another trifling account for $10.10, in favor of the firm of Messrs. Michael & Co., equally ancient and venerable with the Loveland claim. On the strength of these stale accounts William M. Allen got himself appointed administrator of the estate of Thomas T. Reno in the place of Eldro Upton, by the probate court of Jefferson county, and on his own motion procured the allowance of these claims, although the statute of limitations had run against them for more than a quarter of a century. No one representing the claimants requested their allowance, but it was at the behest of the administrator Allen that the claim of $18.23, increased by interest to $61.73, and that for $10.10, increased by interest to $21.05, were favorably considered by the court and made charges against the estate of Thomas T. Reno, deceased. The Swadley ditch has been in existence since prior to 1860, and until the present trouble arose its course seems to have been smooth and the parties interested in it seem to have gotten along without apparent friction. Some time in the later 60's this ditch was divided up, that is, marked off into sections, according to the number of interests in it, and instead of a fund being provided for the care and maintenance of the ditch as a whole, it was kept in repair by the different owners looking after their respective sections. There were eight sections, but only five owners, one owner having an undivided one-half interest, George C. Swadley, or foureighths, and four other owners one-eighth apiece, who were William M. Allen, holding in his individual right, Louis Reno, the Longans, and the Farmer Bros. Later other parties became interested in portions of the Swadley interest; the defendant Cole succeeded to the Longan interest, and the Secrests and others to the Farmer interest. For over 36 years Allen took care of his portion of the ditch and got one-eighth of the water; during the same period the Longans and those claiming under them cared for their section and got one-eighth of the water; the Farmers and their successors for a like interest; Louis Reno, for the same period, held, used, enjoyed and cared for his section and got one-eighth of the water; and George C. Swadley cared for the remainder of the ditch and received the balance, or foureighths of the water. During this entire period each user of water from the ditch, and their respective predecessors and grantors, claimed ownership in, had possession thereof and use of water therefrom, in the propor had proceeded with the acquisition and improvement of farming lands under the ditch, making use of their respective water-rights to that end. In the claims thus asserted and in the use of water accordingly, Allen had been acting with the others, maintaining his one-eighth interest in the ditch as the others had maintained their respective portions. When, after a lapse of 30-odd years, with the situation respecting the ownership of the ditch and the use of water therefrom, as above related, unchanged, in 1904 Allen suddenly demanded for himself a one-sixth interest in this ditch, and acting as administrator of the state of Thomas T. Reno, deceased, another one-sixth interest. No claim whatever from the time of the death of Thomas T. Reno in July, 1873, up to April, 1904, had ever been made by anybody that this estate had any interest in the ditch, nor had there been any use made thereof on its account. In order to swell his individual right of oneeighth interest, which he had enjoyed and used for over 36 years, to a one-sixth, and also to secure for the Reno estate, as administrator, a one-sixth interest in the ditch, Allen, in the month last above mentioned, arbitrarily changed the manner of the division of the water which had obtained for years, and sought to apportion it according to his own notion of what the relative interests in the ditch and water were. When he undertook to thus change the division, some of the defendants protested and restored matters to the original situation, so as to continue the division as it had stood for a generation, whereupon Allen, as administrator, commenced this suit, and also one in his own right, to recover in each one an one-sixth interest in the Swadley ditch and water-right. There is abundant competent testimony to show that Thomas T. Reno in his lifetime, some time in the early 70's, disposed of his interest in this ditch to the Farmer Bros. The court must, by its general finding, have reached that conclusion, and although upon this point there is substantial conflict in the testimony, still that conclusion finds ample support in the proofs. The testimony further shows that for some time prior to his death, Thomas T. Reno took no water from this ditch and did nothing toward its maintenance. It also further appears that from the time of his death, in 1873, to 1904, when Allen, in his capacity as administrator, made demand upon the defendants for a one-sixth interest in this ditch and water, as belonging to the estate of Thomas T. Reno, there had been no claim from any source, or by any one, that the Reno estate had any interest therein whatsoever. The original administrator, Upton, claimed no interest and made no inventory of any. Louis Reno, a son of Thomas T. Reno and a joint owner in the ditch, made no such claim. Neither did Mrs. William M. Allen, the wife of this plaintiff, and daughter of Thomas T. Reno, make such Judgment affirmed. STEELE, C. J., and WHITE, J., concur. 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 ditch, of the claims of ownership therein, and for over 30 years failed to assert any 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 specific land which belonged to the Thomas T. Reno estate, and upon which originally was used for its irrigation the water which he got from this ditch, was mortgaged by the administrator Upton, and some time in 1875 passed entirely from said estate by foreclosure sale under that mortgage, leaving the estate without real estate holdings. There is no question of law involved, necessary to be determined, as we view the matter, and the controversy may well be settled upon purely questions of fact. The case, to say the least, is most extraordinary, indeed we believe it to be without a parallel in the history of the jurisprudence of this state. The court below heard all of the testimony, saw practically all of the witnesses, and was therefore perfectly equipped and qualified to pass upon the facts. That was its special and peculiar province. Its findings in this respect, based as they were on conflicting testimony, are conclusive upon this court. They are manifestly warranted, and we have no disposition whatever to disturb them, even had we the power and authority so to do. We have carefully read the voluminous record and are unable to conceive how, from any view point, the conclusion of the trial court could have been different. Considering the great lapse of time, during which no claim whatsoever was made in behalf of the Thomas T. Reno estate to an interest in this ditch, it is fair to say that the testimony fails utterly to establish, with that certainty and directness, which under the peculiar facts of this case ought to be required and demanded, that the estate, as such, ever had any right, title or interest whatsoever in the Swadley ditch, or its water-right. There may have been, strictly speaking, technical error on the part of the court in the admission and exclusion of testimony. We do not consider in detail these objections. It is so clear, upon the merits of the whole controversy, that the estate cannot recover, that discussion of mere technical objections can avail nothing. In a case like this certainly no mere technicalities should be permitted to intervene to aid, encourage and prolong litigation, in support of a right of such doubtful import as the one here involved, since, in any event, the ultimate conclusion upon the merits must be always the same. Indeed we are aware of no principle of law, that can possibly be invoked and applied, which can, under the facts of the case that are undisputed, warrant a different result than the one embodied by the trial court in its final ALLEN v. SWADLEY et al. (Supreme Court of Colorado. Dec. 6, 1909.) WATERS AND WATER COURSES (§ 247*)-IRRIGATION-RIGHTS IN DITCH-SUFFICIENCY OF EVIDENCE. In an action to recover a one-sixth interest in a ditch, in which it is shown that for more than 30 years one-eighth had been used and claimed, evidence considered, and held amply sufficient to sustain a finding that plaintiff had no other rights than the one-eighth interest. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 314; Dec. Dig. § 247.*] Appeal from District District Court, Jefferson County; A. H. De France, Judge. Action by William M. Allen against George C. Swadley and others. From a judgment for defendants, plaintiff appeals. Affirmed. George W. Taylor, for appellant. Benedict & Phelps and J. W. Barnes, for appellees. BAILEY, J. This was an action by William M. Allen for a decree of ownership in, and right to the possession, use and enjoyment of, an undivided one-sixth interest in the Swadley ditch and water-right. It was consolidated for trial and tried with the administrator, case of William M. Allen, against the same defendants, brought to recover a like interest in the same ditch and water-right, on behalf of the estate of Thomas T. Reno, deceased, just decided by this court. The pleadings were substantially the same in both cases, differing only where necessary to properly state Allen's claim of right as distinguished from that of the estate of Thomas T. Reno, deceased. The decision in the latter case is largely controlling here, the claimed source of title in both cases being the same. The contention is that one John Reno was the owner of an undivided one-third interest in this ditch and water-right, and that each plaintiff acquired an undivided one-sixth interest in the whole ditch and water-right, or each one-half of the alleged interest of John Reno therein. in the other case so here, the court found the facts against the plaintiff and dismissed the action. Reference is hereby made to the opinion in the other case, which contains a full statement of facts, many of which are applicable here. It is undisputed that in 1868 Allen purchased certain lands, and an interest in the Swadley ditch and water-right, from John Reno, taking his deed therefor. In this deed the interest in the ditch and water-right con veyed, was stated as being one-eighth. From that time on down to 1904 Allen maintained, used and enjoyed an undivided one-eighth interest in that ditch and water, as tenant in common with the defendants and their grantors and predecessors in interest. He never claimed any other or different interest, until about the time this suit was commenced, and never used, maintained, possessed or enjoyed any other or different interest. The other seven-eighths interest in the ditch and water had been, during all of this period, used, occupied, possessed and maintained by the defendants and their grantors and predecessors. Some time in the early 90's, exactly when is not clear from the testimony, Allen conceived the notion that instead of the one-eighth interest in this ditch and water-right which was transferred by John Reno he should have gotten one-sixth. And so some 35 years after the execution of the original conveyance he got John Reno to execute a quitclaim deed conveying to him a onesixth interest therein. This instrument purports to have been given to correct a mistake in the original deed, as to the extent of the interest in that property thereby conveyed. Armed and fortified with the fresh deed Allen forthwith begins this suit against the defendants to recover one-sixth interest in the ditch, alleging at great length ouster, fraud and conspiracy on their part to deprive him of his proper proportion thereof and therein. It is to be noted that plaintiff's right to have, use, possess and enjoy an eighth of this property is not now and never has been questioned. The purpose of this suit was simply to swell the one-eighth interest to one-sixth. The issues made by the pleadings are substantially the same as in the case above referred to. The plaintiff assumed in this case the burden of showing that John Reno originally owned a one-third interest in the ditch and water-right, and in 1868, when the deed was made to him, that John Reno still owned at least that large an interest in the property, and that he actually sold to plaintiff that specific portion. In view of the long period, during which the plaintiff used, was content with, and made no claim for any other than one-eighth of the property, the proof to establish his claim, at this late day, to a greater interest therein, should have been clear, direct and convincing, certainly sufficiently so to leave no reasonable doubt in the mind of the court of the entire and absolute propriety of granting such increase. That the testimony was not satisfactory is plainly indicated by the court's finding, with which we are in full and perfect accord, and which, for manifest and obvious reasons, not needful of enumeration, should now be upheld. There is not only no clear, convincing, or even persuasive affirmative testimony, to show that there was a mistake in the John Reno deed in 1868, which had gone undiscovered, unsuspected and uncorrected for over 36 years, but on the contrary, we think the testimony plainly establishes that the interest which John Reno had left in this ditch and waterright, in 1868, and which he conveyed to William M. Allen, was exactly one-eighth thereof, being the precise share or portion which he then transferred to the plaintiff. The court's finding, and the judgment and decree of dismissal entered thereon, were correct, and are accordingly affirmed. Judgment affirmed. STEELE, C. J., and WHITE, J., concur. BALDWIN STAR COAL CO. v. QUINN et al. (Supreme Court of Colorado. Dec. 6, 1909.) 1. INJUNCTION (§ 261*) (§ 261*) - DAMAGES FOR WRONGFUL INJUNCTION-ATTORNEY'S FEES. In awarding damages for the wrongful suing out of a writ of injunction, anything paid attorneys by the party enjoined, for services in the case generally, should not be included. [Ed. Note.-For other cases, see Injunction, Dec. Dig. § 261.*] 2. APPEAL AND ERROR (§ 1097*) - PREVIOUS DECISION OF COURT OF APPEALS-LAW OF THE CASE ON APPEAL TO SUPREME COURT. Though a decision by the Court of Appeals is the law of the case on a subsequent trial, it is not so for the Supreme Court on a subsequent appeal. Error, Cent. Dig. § 4365; Dec. Dig. § 1097.*] 3. TRIAL (§ 165*)-MOTION FOR NONSUIT-DETERMINATION ON EVIDENCE FOR PLAINTIFF. [Ed. Note.-For other cases, see Appeal and There being no evidence for defendants, evidence for plaintiff and all legitimate inferences therefrom must be taken as true in ruling on a motion by defendants for nonsuit. Dig. § 374; Dec. Dig. § 165.*] [Ed. Note.-For other cases, see Trial, Cent. 4. PUBLIC LANDS (§ 106*) - FEDERAL LAND DEPARTMENT-EFFECT OF PERMITTING AMENDED ENTRY. tion to permit an amended entry to be made and The federal land department has jurisdicto cancel an entry on the ground of fraud, and having done so in a particular proceeding, and determined that a fraud was perpetrated on the government by one making an entry conflicting and that his entry was fraudulent, his alleged with an amended entry permitted to be made, rights thereunder were void ab initio. [Ed. Note. For other cases, see Public Lands, Dec. Dig. § 106.*] 5. MINES AND MINERALS ($ 35*)-DECISION OF SECRETARY OF INTERIOR-COLLATERAL ATTACK. The decision of the Secretary of the Interior, in annulling an entry on coal land and permitting amendment of another entry and issuing a patent pursuant to the latter entry, cannot be collaterally attacked. [Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 35.*] 6. MINES AND MINERALS (§ 29*) - PUBLIC MINERAL LANDS-TITLE AND RIGHTS OF FRAUDULENT ENTRYMAN. By a fraudulent entry on coal land, a claimant acquired no rights to the premises, and his alleged title was void ab initio, nor could he |