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court upon change of venue. Affidavits up- | tify as follows: That, in order to construct on which the change of venue was procured this canal, it is necessary for the plaintiff to were filed by the appellees, setting forth | take and use that portion of the lands occuthat the amount involved in controversy was pied by the defendants hereinafter describbeyond the jurisdiction of the county court. ed. That an accurate description of the In the district court the two actions were lands occupied by the defendant Fosdick so consolidated for the purposes of the trial. necessary to be taken is as follows: * After such consolidation, amended pleadings That the value of said land so actually takwere filed in both cases in the district court. en is $356.75. That the damages to the reIn the amended complaint in the Fosdick mainder of said Fosdick's land amount to Case it is alleged that a portion of the land the sum of $1,390. That the value of the sought to be condemned is a part and par- | benefits amount to $- - That an accucel of the public domain of the United rate description of the land occupied by the States, occupied by appellee as a pre-emp- defendant Hungerford so necessary to be tion or homestead, under the laws of the taken is as follows:

That the value United States, the title thereto being in the of said land so actually taken is $128.95. United States government; that the That the damages to the remainder of said mainder is the property of the state of Colo- Hungerford's land amount to the sum of rado, but held by lease to the appellee; and $920. That the value of the benefits amount that his right was simply a leasehold inter- to $ -" Petitioner filed exceptions to est. The same allegations are made in the the report of the commissioners, which exHungerford Case. The answers in both ceptions were overruled, and the report ap. cases admit the qualified ownership alleged proved by the court. It was further orderin the complaint. By stipulation of parties, ed: “That petitioner be, and is hereby, orW. N. Randall, George Morris, and C. W. dered to deposit to the credit of the defendBomgardner were appointed commissioners ants, or with the clerk of the court for that to determine the necessity for taking the purpose, the balance of the compensation lands named in the petition, and to ascer- found by said report, to wit, the sum of tain and fix the damages and compensation $1,095.70 in excess of the amount heretofore to be awarded the appellees. The commis- deposited with the clerk of this court for sioners, having duly qualified, heard the evi- that purpose, to wit, the sum of $1,700, withdence submitted, and viewed the premises, in ten (10) days from this date; whereupon returned their award, as follows: "The un- said plaintiff prays an appeal from the ordersigned, W. N. Randall, George Morris, ders of this court overruling motions and exand C. W. Bomgardner, commissioners ap- ceptions to report of commissioners, and rule pointed by the judge of this court, by order denying motion to order an amended report dated December 15, 1890, to ascertain and of the commissioners." determine the necessity for the taking of The first error argued brings up for review lands described in the complaints herein, for

the action of the county court in changing the purpose of constructing the canal of the the venue from the county to the district plaintiff, and to appraise and determine the court. Under the constitution and statutes damages and compensation to be allowed the of this state, the jurisdiction of the county owners and persons interested in the real court is limited to cases in which the debt, estate so proposed to be taken and damaged, damage, or claim or value of the property for the purpose alleged in the petition here- does not exceed $2,000, except in cases relatin, respectfully report that, as such commis- ing to the estates of deceaseu persons. ACsioners, we held our first meeting at the cording to the affidavits of defendants in town of La Junta on the 29th day of Decem- each of these cases, the amount involved exber, A. D. 1890, and, by agreement of the ceeded the jurisdiction of tue county court. parties hereto, adjourned to the 12th day of It is, however, entirely unnecessary for us January, A. D. 1891, when we met and is- to consider the question as to whether or not sued subpoenas; then adjourned to the 20th the county court erred in changing the venue day of January, A. D. 1891, when we met to the district court. It is sufficient, for the at the town of La Junta for the purpose of purposes of this case, to know that the parhearing the testimony, and continued the ties entered a general appearance in the distaking of testimony until the evening of the trict court, filed amended pleadings, and pro27th day of January, 1891. All parties to ceeded to trial without objection, and that said actions appearing, the said plaintiff by the award in each case was within the jurisB. L. Carr and Geo. A. Kilgore, its attor- dictional limit fixed to the county courts. neys, and the said defendants by Gerry and If, therefore, the county court committed erCampbell, their attorneys. That the ror, such error was waived in the district 28th day of January, 1891, we viewed the court by the parties. It being conceded by premises in controversy, and on the 29th the pleadings that neither of the defendants day of January, 1891, we listened to the ar- was the owner in fee of the land sought to guments of the counsel. That we have be appropriated by the plaintiff, it is claimed heard all the proofs and allegations of the that the award is erroneous upon its face, parties, and, after viewing the said prem- in that by its strict terms the defendants ises, we have ascertained and do hereby cer- were allowed the value of the land actually

on

.

taken. There would be much force in this plaintiff's deed as "lot 5, block 144, East D., contention of counsel, if it were not for the

A. county, Col." Hed, that parol evidence was

admissible to show that the two descriptions statute of this state, which requires the re

applied to the same property, and that the propport to be in the form in which we find it in

erty was as well known by one description as this record. The statute reads: “The re

by the other. port of the commissioners or the verdict of

2. Mills' Ann. St. $ 3904, provides that ac

tions for recovery of land sold for taxes must the jury in every case shall state: First, an

be brought within five years after execution and accurate description of the land taken; sec- delivery of deed, provided that when the owner ond, the value of the land or property actual- of such land shall, when the deed is executed ly taken; third, the damages, if any, to the

and delivered, be a minor, or insane, or an

idiot, and residing within the United States, residue of such land or property; and, fourth,

such person, his heirs or legal representatives, the amouut and value of the benefit." Mills' may bring action to recover such lands one year Ann. St. § 1732. In Railroad Co. v. Stark, 16

after such disability is removed, etc. Hdd, that Colo. 291, 26 Pac. 779, it is said that the

such statute does not apply to an action by a

purchaser at a tax sale, but only to an action statute is mandatory as language can make by the prior owner, whose title is sought to be it. Under these circumstances, the fact that divested by the tax sale. the commissioners in making their award fol

Appeal from district court, Arapahoe counlowed the language of the statute literally

ty. should not occasion surprise. It is evident,

Action by Edward H. Collins against A. B. however, that they fully understood the na

Sullivan and others to recover a lot under tax ture of respondents' title to the premises

deed. From a judgment for plaintiff, defendsought to be condemned; hence we cannot

ants appeal. Affirmed. assume that they awarded compensation for

This is a contest between Edward H. a higher estate than that actually held by

Collins, a grantee claiming under a tax deed respondents. Although the language of the

executed by the county treasurer, and A. B. award is susceptible of such a construction,

Sullivan et al., grantees of the owner at the it is, we think, apparent that the award in

time of the tax levy. The property was this particular was framed in compliance

sold for taxes for the year 1876. As listed with what was understood to be the com

for taxes for that year, it is described as lot mand of the act. At no time has the nature

5, block 144, East Denver, Arapahoe county, of respondents' title been in dispute. It is

Col., and by this description is conveyed by alleged in the complaint, and admitted in

the treasurer's deed. Under Colorado stat. the answers, while in the report the lands

utes, a tax deed executed by the county taken are referred to, not as the lands of the

treasurer in his official capacity, properly atrespondents, but as the lands occupied by

tested, acknowledged, and recorded, is made them. Under the circumstances, we think it

prima facie evidence of the following facts: would be improper to assume that respond

“First. That the real property conveyed was ents were awarded damages for a greater in

subject to taxation for the year or years terest than that actually held by them in the

stated in the deed. Second. That the taxes premises. We shall therefore decline to fol

were not paid at any time before the sale. low counsel into a discussion as to the rule

Third. That the real property conveyed had of damages in cases of pre-emption, home

not been redeemed from the sale at the date stead, or leasehold claimants. There was no

of the deed. Fourth. That the property had error in ordering an additional deposit suffi

been listed and assessed at the time and in cient to cover the amount of compensation

the manner required by law. Fifth. That ascertained and awarded. It is required by

the taxes were levied according to law. the statute, where, as in this case, petitioner

Sixth. That the property was advertised for desires to occupy and use the premises pend

sale in the manner and for the length of ing appellate proceedings. Mills' Ann. St. $8

time required by law. Seventh. That the 1725-1728; Railroad Co. v. Lamborn, 8 Colo.

property was sold for taxes as stated in the 380, 8 Pac. 582. The order must be affirmed. deed. Eighth. That the grantee named in If, however, petitioner desires to abandon

the deed was the purchaser or the heir at the proceedings and surrender possession of

law, or the assignee of such purchaser. the property, it should present its applica- Ninth. That the sale was conducted in the tion in this behalf to the district court imme

manner required by law." Gen. St. $ 2932. diately after the remittitur from this court is

In the district court it was claimed that the filed therein. Affirmed.

tax deed, and also the assessment, were void for uncertainty, and that plaintiff's action

was barred by the statute of limitations. (20 Colo. 528)

In the fourth defense the nature of plaintiff's SULLIVAN et al. v. COLLINS.

title, as understood by the defendants, is (Supreme Court of Colorado. Feb. 8, 1895.) set up, with certain facts tending to show TAX TITLES ACTION BY GRANTEE TO RECOVER the invalidity of such title. This defense LAND-EVIDENCE-LIMITATIONS.

was stricken out, upon motion; and the 1. In an action by a holder of a tax deed to plaintiff thereafter, by leave of court, filed recover a lot conveyed by it, it appeared that in the city plat he lot was described as “lot

an amended answer, in which this defense 5, block 144, C.'s addition to the city of D.,'

was omitted. The statute of limitations and that it was described in the tax list and in i with reference to the payment of taxes upon

unoccupied lands for five years, when such minor or minors, or insane or an idiot, and lands are held under color of title, was plead- residing within the United States one year ed in the replication to the amended answer. after such disability is removed, it shall be A trial in the district court resulted in a ver- lawful for such person or persons, their heirs dict and judgment for plaintiff. The defend- or legal representatives, to bring their suit ants bring the case here upon appeal. or action for the recovery of lands so sold,

and when the recovery is effected in all Sullivan & May, for appellants. Markham

cases, the value of the improvements, etc., & Carr, for appellee.

made on the land so sold, and all taxes paid

after the sale thereof, with interest thereon HAYT, C. J. (after stating the facts). It at the rate of fifteen per cent. per annum, is conceded that prior to the levy of the taxes shall be ascertained by the jury trying the for the year 1876 the property was platted action for the recovery, and paid by the peras a part of Clement's addition to the city son or persons recovering the same, before of Denver, and that upon this plat, which he, she or they shall obtain possession of the was duly filed and recorded, the premises in land so recovered.” It is apparent that this controversy are described as lot 5, block 144, section has no application whatsoever to the Clement's addition to the city of Denver. purchaser at a tax sale. It applies solely to The contention of appellants is that the prop- the owner of the property, whose title is erty could only be listed for taxes and sold sought to be divested by the tax proceedings. by the latter description, while appellee con- The fallacy of applying this statute to the tends that the property was equally as well | purchaser is well illustrated in this case. known as lot 5, block 144, East Denver, and The property in question was sold in 1877 that it was properly assessed, advertised and for the taxes of 1876, and in pursuance of sold by this description. In the court be- said sale a tax deed was duly executed in low, oral testimony was allowed for the pur- the year 1880. The property was unoccupose of showing that the two descriptions pied and unimproved; hence, there was no applied to one and the same property, and necessity for the grantee of the tax deed to that the property was as well known by the bring an action for the possession of the one description as by the other. This testi- property, or to have his title declared legal, mony was objected to by counsel, and its ad- until some adverse claim should be set up mission is assigned for error in this court. It thereto. The delinquent owner seems to is a fundamental principle of the law of real have paid no attention to the property after property that parol evidence is admissible the sale, until in the year 1889, when appelfor the purpose of showing that a description lants sought him out, in a foreign land, and, used in a conveyance, as commonly under- for a small consideration, secured a deed to stood in the vicinity, clearly designates the the property in controversy. Thereafter, property. This principle, announced at an appellants entered upon the premises, and early day, has been so universally followed erected improvements thereon, and thereupsince that we shall rest content with citing on appellee brought this action to recover a few cases in which it has been recognized: possession. It is apparent from the foregoLaughlin v. Hawley, 9 Colo. 170, 11 Pac. 45; ing statement that there was no necessity for Chambers v. Watson, 60 Iowa, 339, 14 N. W. appellee to bring his action at an earlier 336; McGregor v. Brown, 5 Pick. 170; Schei- | date, and, if he had done so, it must have ble v. Slagle, 89 Ind. 323; Caldwell v. Vil- been without avail. Until some party set lage of Carthage, 40 Ohio St. 453. Likewise, up a title adverse to bim, he was certainly it has been held that a description of lands not called upon to defend the title procured for taxation is sufficient if it afford means at the tax sale. The statute is for the purof identification, so that it can be deter- pose of protecting claimants under tax mined exactly what lands have been sold, deeds, and, to that end, it is provided that and for this purpose extrinsic evidence is an action by the owner shall be barred, if competent. 1 Desty, Tax'n, p. 569; 2 Desty, not brought within five years after the sale Tax'n, p. 921.

thereof. The bar in this case is against apIt was contended in the court below, and pellants. It is not a good defense to appelis insisted upon here, that plaintiff's action lee's action. A demurrer to the second de. was barred by section 3904 of Mills' An- fense therefore properly sustained. notated Statutes. This section reads as fol- Moreover, as plaintiff, with color of title, had lows: "No action for the recovery of land paid all taxes upon said property for five sold for taxes shall lie, unless the same be successive years, his title was protected by brought within five years after the execution section 2187, Gen. St. 1883. De Foresta v. and delivery of the deed therefor by the Gast, 20 Colo. 38 Pac. 244. treasurer, any law to the contrary notwith- The fourth defense need not be separately standing: provided, always, that when the considered, as, in so far as the facts pleaded owner or owners of such land, sold as afore- were competent, they were admissible unsaid, shall at the time of the execution and der the general issue. The judgment of the delivery of the deed by the treasurer, be district court must be affirmed. Affirmed.

was

(20 Colo. 546)

said, and upon the construction of said ditch DOWNING Y. AGRICULTURAL DITCH said plaintiff procured, as hereinafter stated, CO.

from said ditch company, and appropriated, (Supreme Court of Colorado. Feb. 8, 1895.) applied and diverted, two hundred inches of SUFFICIENCY OF COMPLAINT-SUIT for INJUNCTION

said water, for the purposes aforesaid, and -INDEFINITE ALLEGATIONS-AVERMENT OF has never since waived or abandoned said NEGLIGENCE.

right to have and use the said two hundred 1. A complaint to enjoin an irrigation com

inches, but is still entitled to the said pany from making certain sales of its water, from which it may be inferred that plaintiff

amount of water; that the capacity of the claims by virtue of rights acquired in the water ditch of said defendant is about six thieuprior to defendant, which he had never surren- sand inches; that the average amount of dered to it, and which, by arrangement with

water carried by said defendant in s said defendant, were to be enjoyed through its ditch; and that he claims under a contract between

ditch during the irrigating season, because him and defendant made at the time the ditch of the negligence and bad management of its was built, whereby plaintiff surrendered his

officers, servants, and employés, has not and prior rights, and defendant agreed to supply him with certain water before it supplied its

does not exceed, to wit, three thousand inchstockholders; and that he claims priority over es; that the said defendant, during the irri. other stockholders because his purchase of stock gation season, can legally obtain sufficient was prior in time to the purchase of stock by

water to run said ditch at its full capacity, the others; and which complaint does not show under which one of the claims plaintiff seeks

to wit, at six thousand inches, but has hithrelief,-is too indefinite as to plaintiff's right to erto neglected so to do; that, by the by-laws the water.

of said company defendant, no one can ob2. In charging defendant with negligence in

tain water from said ditch except stockregard to supplying plaintiff with water, the facts constituting such negligence should be set holders in said company; that said plainout, a mere allegation of negligence stating only tiff is a stockholder in said company, and a conclusion of law.

has been for about twelve years last past Error to district court, Jefferson county. the owner and holder of three shares of said

Action by Jacob Downing against the Ag- stock, which is in the name of said plainricultural Ditch Company to restrain defend- tiff upon the books of said company, with ant from selling water to its stockholders no assessments or other indebtedness therein proportion to their stock, regardless of the on; that said plaintiff owns and occupies a land which they held, and from supplying large body of land, to wit, five hundred more recent subscribers to their stock to the acres of land, situate in said county of Jefdamage of older and prior users and ap- ferson, and within the township and range propriators of the waters of their irrigating hereinbefore mentioned, under cultivation, ditch. From a judgment for defendant, and depending on the waters of said ditch, plaintiff brings error. Affirmed.

so taken from said Vasques Fork, and capaIn the court below a demurrer to the orig- ble of being irrigated and supplied by water inal complaint was sustained, and the plain- from said ditch, and, for the purpose of setiff filed his amended complaint, of which curing his said water by means of said ditch the following (omitting the formal parts) is for the irrigation of said land, said plaintiff a copy: "That the said defendant is a cor

became a stockholder in said company, and poration duly organized under the laws of with the agreement and understanding with the state of Colorado, and doing business in said defendant that said plaintiff should the county and state aforesaid; that said have sufficient water to irrigate the said company was organized on or about the 1st land properly during the irrigating season, day of April, A. D. 1874; that the purpose and said plaintiff is ready and willing, and for which said company was organized was has always been ready and willing, to pay, and is to irrigate lands situate in range 69, and has tendered the said defendant the townships 3 and 4, and other lands, in Jef- compensation required, for the water, to ferson and Arapahoe counties, in the state wit, two hundred inches, needed by said of Colorado, and for farming and stock rais. plaintiff to irrigate his said land, and which ing; that the capital stock of said company said defendant could have supplied but for is $20,000, divided into 200 shares of $100 its collusive, unjust, and inequitable diseach, which said stock was and has been is- crimination in the distribution of said water, sued; that the water for said defendant's and its collusive, fraudulent, and improper operations is taken from Vasques Fork or management of its said business in the Clear Creek, in the county of Jefferson, premises; that if said defendant, its officers, aforesaid; that the lands owned and occu- servants, and employés, would carry in said pied by the plaintiff, hereinafter mentioned, ditch a quantity of water equal to its cawere owned and occupied by said plaintiff | pacity, and would properly and equitably in the year A. D. 1869, and long prior to the distribute the waters so carried in said construction of said ditch of said defendant, ditch, said plaintiff might have sufficient and the said plaintiff was then entitled to water to irrigate his said lands during the water for the irrigation of the same froin irrigating season; that said plaintiff became said Vasques Fork or Clear Creek, and was a stockholder in said company long prior to entitled to have said water conducted numerous stockholders (at present unknown through said ditch for the purpose afore- to plaintiff, but who, when discovered, plain.

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tiff prays may be made parties hereto, if subscribers to said stock to the damage of necessary), but that said subsequent stock- the older and prior users and appropriators holders claim the right under and by virtue of the waters of said ditch." Then follows of their said stock, and not because of any the prayer for relief by way of injunction. prior rights over said plaintiff', to be entitled To this amended complaint the defendant to take and use the waters of said ditch, interposed a demurrer, on the grounds that regardless of the prior rights, appropria- the same does not state facts sufficient to tion, uses, and rights of said plaintiff, and constitute a cause of action; that it is unsaid defendant has heretofore and still does certain and insufficient, in that it fails to accede to and comply with the demands of state with sufficient particularity the facts said subsequent stockholders, to the great upon which the plaintiff relies for a recovdamage of said plaintiff; that said derend- ery; and that there is a defect of parties ant persists in apportioning the waters of defendant. This demurrer was sustained said ditch in accordance with the shares of by the court below, and plaintiff brings the stock held by the several stockholders, ard case here upon a writ of error. not in accordance with the necessities of the

L. B. France, for plaintiff in error. C. J.

Hughes, for defendant in error. the parties interested therein, and that could and otherwise would be irrigated and sup

CAMPBELL, J. (after stating the facts). plied with water from said ditch; that said

The grievance of which the plaintiff complaintiff, for the proper irrigation of his said

plains, and which he has attempted to state land, requires at least two hundred inches

in his complaint, is that the defendant has of water; that said defendant, being able to

deprived him of the use of water for irrigatsupply said plaintiff with said two hundred

ing his lands, to which water he asserts a inches, has heretofore refused so to do on re

right superior to that possessed by the dequest, pretending that other and subsequent fendant. In order to entitle him to the relief stockholders were, by reason of their said

sought, his pleading must show that he has stock, entitled to take, use, and appropriate such prior right, and that defendant has un. the waters of said ditch in the proportion lawfully deprived him of it. The pleader has of forty inches to each share of stock, and set forth, at considerable length, what he said plaintiff avers that to so apportion said claims to be the facts which constitute plainwater would more than exceed the capacity tiff's priority, but he has not done so, in acof said ditch, and that certain of said stock- cordance with the correct rules of pleading. holders have no lands whatever to be or There are three different phases in which that could be in any circumstances supplied defendant's alleged priority may be conwith water from said ditch for irrigation sidered. It might be inferred that he claims or any other purpose; that said plaintiff las his priority by virtue of an appropriation repeatedly called upon certain of the stock- made long before the construction of defendholders, as well as upon the trustees, of said ant's ditch, which he never surrendered or company defendant, to take such steps as conveyed to defendant, and which, by some would remedy the grievances complained of arrangement with the defendant, was to be nerein, but that said stockholders holding enjoyed by plaintiff through the defendant's a majority of said stock and said trustees ditch. It may be inferred that the right have hitherto neglected and refused to do claimed originated as the result of a contract anything whatsoever to remedy the griev- entered into between the plaintiff and deances aforesaid; that said defendant has fendant at the time of the construction of heretofore and at all times collusively, and the defendant's ditch, whereby the plaintiff contrary to equity and good conscience, dis- surrendered and conveyed to the defendant criminated between the parties entitled to the prior right theretofore possessed by him, water from said ditch, and has hitherto and in lieu thereof defendant agreed to sup. failed, and still fails, neglects, and refuses, ply him with the 200 inches of water before to properly and equitably distribute the it supplied its other stockholders. Another waters of said ditch, and to supply the nec- inference that might be drawn is that plainessary quantity to said plaintiff and other tiff claimed his priority over the other stockprior appropriators, purchasers, and users holders of the defendant company because of said waters. And said plaintiff avers his purchase of stock from the defendant that, without the intervention of this honor

company was prior in time to the purchase able court, he is remediless in the premises, of stock by the others. These inferences, and the grievances aforesaid will be con- however, do not enable us to reach any continued by said defendant to the irreparable clusion as to what the plaintiff's contention injury and damage of said plaintiff; that is. It may be said that it was unnecessary said defendant should be restrained by an for plaintiff to state how, or of whom, he acorder of this honorable court from supply- | quired his superior right; but that, if his ing, or attempting to supply, water to said right is paramount, it is immaterial to the stockholders apportioned to their stock re- defendant when, or how, or from whom the gardless of the land to be, and which would same was obtained. Counsel for the plainotherwise be, supplied with water from said tiff, however, evidently assumed that it was ditch, and from supplying the more recent proper to do so, as the pleading sufficiently

V.39p.no.3-22

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