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(37 Colo. 530) NEW CACHE LA POUDRE IRRIGATING CO. V. ARTHUR IRRIGATION CO.

et al. (Supreme Court of Colorado. May 5, 1906.

Rehearing Denied Dec. 3, 1906.) WATERS AND WATER COURSES-DETERMINA

TION OF WATER RIGHTS–CHANGE OF POINT OF DIVERSION.

Under Laws 1899, p. 235, c. 105, providing for judicial proceedings on notice to interested parties to authorize a change in the point of diversion by an owner of a water right, the district court has no jurisdiction to require the water commissioner to recognize a change in the point of diversion by an owner who has not complied with the provisions of the statute, though he had made the change before the act took effect.

Appeal from District Court, Larimer County; James E. Garrigues, Judge.

Action by the Arthur Irrigation Company and others against C. C. Hawley, water commissioner, and the New Cache La Poudre Irrigating Company intervenes. From a judgment in favor of plaintiffs, intervener appeals. Reversed and remanded.

James W. McCreery, for appellant. Rhodes & Lee, for appellees.

ministered." The instruction is one on the subject of reasonable doubt, and the language is, in substance, that usually employed in such instructions, and has been upheld in many cases. Instructions to Juries, by Blashfield, § 304. The objection made to instruction 6 is covered by an instruction given at the request of the defendants.

It is urged that the verdict should not have been accepted, because it does not state the offense of which the defendants were found guilty. “Where two counts of varying grades are properly contained in an indictment and are of the same nature, and are connected with and growing out of the same transaction, though the punishment for each grade may be different, the legal intendment of a general verdict is to find the defendant guilty of the highest grade charged." 29 Amer. & Eng. Ency., p. 1024. In this case the offenses are of the same grade, and, under the decision of this court in Bergdahl v. People, 27 Colo. 302, 61 Pac. 228, the verdict un. doubtedly finds the defendants guilty of the crime of larceny. It is therefore unnecessary to determine whether it finds them guilty of burglary.

In support of their motion for a new trial, one of the defendants filed an affidavit in which he confessed to the burglary of the store and the larceny of the goods alleged in the information to have been stolen, and that he secreted them; but he alleges also that he did so without the knowledge of his brothers, and that his brothers did not in any way advise or counsel or assist him. The other defendants filed affidavits alleging that they had no knowledge whatever of the commission of the offense, and that they did not know that stolen property had been secreted on or near the premises, and that they did not know until after the trial that the defendant Andrew Perry was guilty of the offense charged. Andrew Perry did not testify at the trial, although the other defendants did. We do not think the court erred in overruling the motion for a new trial.

The reason given by the judge was, among others, that the defendant Andrew Perry was not placed upon the stand, and that counsel probably knew that he had committed the offense. We shall assume that counsel did not know that the defendant had burglarized the store, but that he presented the motion for a new trial and the affidavits in support thereof in good faith. We do not think, however, that the defend ants were entitled to a new trial, for we cannot say that the proposed evidence, if offered and admitted, ought to produce a different verdict. Piela v. People, 6 Colo. 343.

Upon a review of the whole record, we are satisfied that the defendants have bad a fair and impartial trial, and the judgment is affirmed.

GABBERT, C. J. By statutory proceedings, priorities to the use of water in water district No. 3, from the Cache la Poudre river, were adjudicated in April, 1882. By these proceedings the Watrous, Whedbee & Secord Ditch, hereafter referred to as the “Watrous Ditch," and the respective ditches of the New Cache la Poudre Irrigating Company and the Fort Collins Irrigating Canal Company, were awarded certain priorities. The Arthur Irrigation Company has succeeded to the rights of the latter company. The Arthur Company is the owner, as the successor by purchase, of a part of the priorities awarded the Watrous Ditch, and claims that the water represented by the rights so purchased has been diverted through the ditch purchased from the Fort Collins Irrigating Canal Company since 1884, until, beginning with the year 1900, and including the two years subsequent, the water commissioner refused at all times, upon demand therefor, to turn into, or allow to be turned into, its ditch the water represented by the rights purchased from the Watrous Ditch. In July, 1902, this action was commenced by the Arthur Company against the water commissioner, C. C. Hawley, one of the appellees, for the purpose of requiring him to permit, allow, and make a change of the point of diversion, and use of the priorities so purchased, or, as counsel for appellees contend, to require the water commissioner to recognize the use of such priorities as used since 1884. The New Cache la Poudre Irrigating Company intervened in this action by way of a motion to dismiss, because of the failure upon the part of the plaintiff to comply with the provisions of the act entitled "An act in relation to irrigation." approved April 6, 1899. Laws 1899, p. 235,

GABBERT, C. J., and CAMPBELL, J., concur.

c. 103. This motion was overruled. Thereafter the intervener interposed its answer and petition in intervention, whereby issues Were tendered which, if established, were intended to defeat the right of the plaintiff to the relief demanded. Plaintiff answered this petition, and the issues made by the respective pleadings of the plaintiff and interTener were found in favor of the former. It the commencement of the trial the intervener objected to any evidence being received, for the reason that the complaint did not state facts sufficient to constitute a cause of action, which motion was also overruled. A decree was rendered in favor of the plaintiff, from

from which the intervener appeals. Many errors are assigned, but we shall consider only the one which relates to the authority of the court to entertain the action commenced by plaintiff because it was not in conformity with the provisions of the act of 1899, suola.

On this question this case only differs from Irrigation Co. r. Water S. & S. (0., 29 Colo. -169, 68 Pac. 781, in that the claim is made by plaintiff that the charge of the point of diversion was fully consummated before the act of 1899 took effect, while in Irrigation Co. v. Water S. & S. Co., the change was not fully made before that date. The object of the irrigation statutes providing for the adjudication of priorities was to settle such priorities, and secure the orderly distribution of Water for irrigation purposes. To further effert this object officials have been designated whose duty it is to distribute the water in accordance with the adjudication. The decree in such proceedings is the guide for such oflicials from which they must determine, in the discharge of their duties, the relative rights of parties, the volume to which different ditches are entitledl, the point of diversion, and all other data necessary to a distribution of water in accordance with its provisions. Supplementing these matters the act of 1899 under consideration was passed. An appropriator of water may change the point of diversion provided the rights of others are not injuriously affected thereby. The fact that the appropriator has made such change does not settle the question of whether or not other appropriators are thereby injuriously affected. That question cannot he said to be authoritatively settled until judicially determined. Perhaps a long-continued use through a new channel of diversion might be a good defense as against other appropriators, but this, as well as other questions which might be proper to consider in cletermining the right to change the point of diversion can only be settled in some appropriate proceeding in which all persons whose rights mar be affected by the change, and who, for this reason, would be entitled to be deurd, are before the court. To obtain an order allowing a change in the point of diversion is, in effect, a modification or change in

the adjudication decree. In order to protect officials in the discharge of their duties in distributing water, to preserve the peace, to prevent a multiplicity of suits, to relieve the officer from being required to ascertain, at his peril, any of the various questions which he might be required to consider when requested to change the point of diversion, and finally, that there may be a judicial ascertainment of the right to such change, which shall bind all parties, and no leave the place of diversion to the whim of interested parties, the act of 1999 was passed. We are therefore of the opinion that, before an appropriator can obtain a decree permitting a substantial change in the point of diversion, which he can entorce as against other appropriators, or require the officer charged with the duty of distributing water to obey, even though he made such change before the act of 1899 took effect, he must proceed in the manner provided by that act. The fact that appellant's rights may or may not be injuriously affected by the change is immaterial. All persons who may be affected by the desired change must be notified of the proceeding, and given an opportunity to be heard before the court is authorizeil to enter an ordler allowing such change. Irrigation Co. v. Water S. & S. Co., supra; Fluke v. Ford (decided at September Term, 1937) 84 Pac. 469.

The judgment of the district court is reversed, and the cause remanded for further proceedings not in conflict with the views expressed in this opinion.

Reversed and remanded.

STEELE and CAMPBELL, JJ., concur.

(37 Colo. 534) ASHENFELTER et al. yCARPENTER

et al. (Supreme Court of Colorado. May 5, 1906.

Rehearing Denied Dec. 3, 1906.) CONSTITUTIONAL LAW-Ex Post FACTO LAWS -REMEDIES.

Laws 1899, p. 235, c. 105, and Laws 1903, p. 278, c. 124, fixing the procedure on change of point of diversion by the owner of a water right, are not invalid as ex post facto laws, though they apply where the point of diversion has already been changed, the provisions being remedial in their nature.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, $ 5:31.1

En Banc. Appeal from District Court, Montrose County ; Theron Stevens, Judge.

Action by John Ashenfelter and others against L. C. Carpenter and others. Judgment in favor of defendants, and plaintiffs appeal. Affirmed.

Story & Story, John Gray, Bell & Catlin, and Fred W. lIeath, for appellants. Sherman & Griffith, for appellees.

PER CURIAM. Excepting one, the questions presented by this appeal are the same as those disposed of adversely to the conten

tion of appellants in Irrigation Co. v. Water ! and do not have the effect of divesting any S. & S. Co., 29 Colo. 469, 68 Pac. 781; Fluke | one of a right to such change, whether made v. Ford (Colo., decided at the last September before or after the law took effect, but are term) 84 Pac. 409, and the New Cache la only intended to have such rights determined Poudre Irrigating Co. y. The Arthur Irriga in a way which shall bind all parties aftion Co. (Colo., decided at the present terin) fected by the change, and thus have evidenced 87 Pac. 799.

in the form of a decree the right of a clainCounsel for appellants contend that because ant to a change in the point of diversion, a change in the point of diversion of the priori whether exercised before the law took efties belonging to them was perfected prior to fect or to be enjoyed in the future. the date when the act of 1899, and the act of The judgment of the district court is af1903 on the same subject (Laws 1899, p. 237, firmed, without prejudice to appellants to c. 105, and Law's 1903, p. 273, c. 12.1), took ef maintain the statutory proceeding contemfect, that appellants are not required to com plated by the Laws of 1899 and 1903, suya. ply with the provisions thereof in order to Judgment affirmed. maintain an action the purpose of which is to compel we officials charged with the duty of distributing water to recognize their right

(37 Colo. 536) to divert water represented by these priori

GUTSIIALL v. CARPENTER et al. ties at the respective points to which the (Supreme Court of Colorado. May 5, 1906. same have been changed, because of the con

Rehearing Denied Dec. 3, 1906.) stitutional inhibition against ex post facto

En Banc. Appeal from District Court, laws. The fact that a change was made in

Montrose ('ounty; Theron Stevens, Judge. the point of diversion prior to the date when

Action between S. B. Gutshall and L. C. the acts of 1899 and 1903 took effect did

Carpenter and others. From the judgment, not render the right to such change a vested

Gutshall appeals. Affirmed. one. Pricr to those acts there was no statute on the subject; and, while the courts

Jillard Fairlamb and Hugo Selig, for aphave recognized that the owner of a priori- | pellant.

pellant. S. S. Sherman, for appellees. ty could change the point of diversion, it was always with the limitation that such change

PER CURIAM. The questions presented did not injuriously affect the rights of others.

by this appeal have been settled by the preThe acts in question have not changed the

vious decisions of this court in Irrigation law in this respect, but merely require that

Co. v. Water S. & S. Co., 29 Colo. 469, 68 Pac. a party desiring to change the point of di

781; Fluke v. Ford (Colo.) 84 Pac. 469, deversion must follow a prescribed procedure

cidel at the September term, 1903; New in order to obt:in a decree which will per

Cache La Poudre Irrigation Co. v. Arthur mit him to make such change, and bind others

Irrigation Co. (Colo.) 87 Pac. 799; and Ashtaking water from the same source, and

enfelter v. Carpenter (Colo., decided at the which officials charged with the duty of

present term) 87 Pac. SCO. distributing water can be required to obey. The judgment of the district court is in These laws are merely remedial. They only

accordance with the views expressed in these prescribe a procedure to be followed by which cases, and will therefore be affirmed, without the right to make a change in the point of prejudice to appellant to maintain a proceeddiversion may be judicially settled and de ing in accordance with the act of 1899 (Laws terinined. They deprive no one of a vested 1899, p. 235, c. 105) and the act of 1903 (Laws right to such change, because they require 1903, p. 278, c. 124). a judicial ascertainment of such right, and Judgment aflirmed. are no more objectionable upon constitutional grounds than the irrigation statutes which required, when adjudication proceedings were

(149 Cal. 770) commenced, that all parties should come in

SIERRA COUNTY V. FLANIGAN. (Sac. and have their rights determined, by which

1,219.) there would be embodied in a permanent (Supreme Court of California. Oct. 1, 1906. form the evidence of rights previously ac

Rehearing Denied Oct. 31, 1906.) quired. Until determined in some appropriate LICENSE-ORDINANCE-REPEAL-EFFECT. proceeding, the question of whether or not

Where a license tax accrued after the pas

sage of Pol. Code, § 3366 (St. 1901, p. 63), c. a change in the point of diversion injuriously | 209) authorizing the imposition of a business affects others is left open for determination license, which operated to repeal the ordinance at the instance of any one claiming to be

under which the license was levied, the county injuriously affected by such change. Lapse

had no right to recover the same. of time, and all other questions which a party

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 32, Licenses, $ 16.] making such change could rely upon in order to establish his right thereto, could be in In Bank. Appeal from Superior Court, voked, but he cannot have these questions Sierra County; Stanley A. Smith, Judge. determined in the absence of parties whose Action by Sierra county against P. L. Flanrights would be affected by such change. igan. From a judgment in favor of defendThe statutes in question are not designed, ant, plaintiff appeals. Affirmed.

87 P.-31

U. S. Webb, Atty. Gen., W. I. Redding, Dist. Atty., and Frank R. Wehe, for appellant. A. E. Cheney and Campbell, Metson & Campbell (Thomas H. Breeze, of counsel), for respondent.

SHAW, J. This is an action to recover of the defendant certain license taxes alleged to have accrued and to be due and owing from him to the county of Sierra, under an ordinance adopted by the board of supervisors of the county on May 31, 1900.

Precisely the same ordinance was under consideration by the Supreme Court of the United States in Flanigan v. County of Sierra, 196 U. S. 557, 25 Sup. Ct. 314, 49 L. Ed. 597. It was held by the Supreme Court of the United States in that case that the ordinance in question was repealed by the act of the Legislature of California of March 23, 1901, adding section 3366 to the Political Code (St. 1901, p. 635, c. 209), and that the repeal operated to prevent further collection of taxes previously accrued under the ordinance. The taxes for which this suit was begun accrued after the passage of the act of 1901, and there can be no doubt but that, under the decision, the right of action for the tax was terminated by the passage of the statute. The Supreme Court of the United States, upon this point, followed the decisions of this court in Sonora v. Curtin, 137 Cal. 583, 70 Pac. 674, and Santa Monica v. Guidinger, 137 Cal. 00s, 70 Pac. 732.

Following the decisions in these cases, we hold that the plaintiff had no right of action to collect the tax sued for. The court below took the same view, sustained a demurrer to the complaint without leave to amend, and rendered judgment for the defendant thereon, and this action was correct.

The judgment is affirmed.

government act and restricting the power of counties to license to matters of regulation only. 2. SAME-EFFECT OF REPEAL-PRIOR TAXES.

The repeal of a county's power to levy a license tax for revenue by Pol. Code, 8 3366, was to destroy all the county's right to collect a license tax under an existing revenue ordinance, though the tax was due before the repea] took effect. 3. SAME-RECOVERY OF PAYMENT-DURESSPROTEST.

After a statute granting counties the right to levy license taxes for revenue purposes had been repealed, the county claimed the right to collect a license tax from plaintiffs under an ordinance taxing sheep raisers, and procured the arrest of R., one of the plaintiffs, for engaging in such business without procuring a license. While R. was in the custody of the sheriff, and in order to procure his release from custody, he was required to, and did, deposit the alleged amount of the license tax with C., who thereafter paid over the money to the county under protest in order to prevent R.'s rearrest. Held, that neither the payment made to C. nor to the county were voluntary, but under duress, and, the county not being entitled to collect such tax, plaintiffs were entitled to recover the same.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Licenses, $ 68.]

Department 2. Appeal from Superior Court, Plumas County; C. E. McLaughlin, Judge.

Action by D. C. Wheeler and another against Plumas county. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

Campbell, Metson & Campbell and Cheney, Massay & Smith, for appellants. U. S. Webb, Atty. Gen., and L. N. Peter, Dist. Atty., for respondent.

We concur: MCFARLAND, J.; ANGELLOTTI, J.; SLOSS, J.; HENSIIAW, J.; LORIGAN, J.

(149 Cal. 782) WHEELER et al. v. PLUMAS COUNTY.

(Sac. 1,341.) (Supreme Court of California. Oct. 2, 1906.) 1. LICENSES-REVENUE-STATUTES-REPEAL.

County Government Act 1897, p. 465, č. 277, $ 25, subd. 25, conferred on boards of supervisors power to license, for the purpose of regulation and revenue, every kind of business not prohibited by law, transacted and carried on within the county. Under such authority the supervisors of P. county passed an ordinance entitled "An ordinance levying a license tax on persons, firms, copartnerships and corporations, carrying on the business of grazing, herding or pasturing sheep or lambs within the county," which provided that all persons so engaged in such business should pay an annual license equal to $10 for every 100 sheep and lambs owned and controlled by them, etc. Held, that such ordinance was a measure passed for the purpose of revenue, and not for the regulation of sheep raising, and was, therefore, repealed by Pol. Code, $ 3366, amending the county

LORIGAN, J. This is an appeal from a judgment in favor of defendant entered against plaintiffs after they had declined to amend upon demurrer sustained to their first amended complaint, and the only question presented is as to the validity of the order sustaining such demurrer.

The facts as gathered from the amended complaint are as follows: The board of supervisors of Plumas county on the 9th of January, 1900, enacted an ordinance entitled “An ordinance levying a license tax on persons, firms, copartnerships and corporations carrying on the business of raising, grazing, herding or pasturing sheep or lambs within the county of Plumas,

wherein it was provided that all persons engaged in such business within the county of Plumas must annually procure a license therefor from the license collector of the county, and pay therefor $10 for each 100 sheep and lambs owned by and under the control of such persons. It further provided that the license collector should have the collection of the license tax provided for by the ordinance, and should direct the district attorney to bring suit in the name of the county to recover such license where any person required by the ordinance to take out a license failed to do so. The ordinance made the license a debt due the county, and provided that the money collected for the license should be paid

over to the county treasurer and placed to the enactment of the ordinance, it was repealed, credit of the general fund of the county. In but also that the effect of such repeal was to August, 1901, plaintiffs, as copartners, were extinguish any right to collect a license tax engaged in the business of raising and graz previous to such appeal. It will be observed ing sheep, and had in their possession and that the ordinance in question was passed by were grazing within the county of Plumas the board of supervisors of Plumas county in 13,000 sheep and lambs, and had failed to 1900, at a time when, by subdivision 25 of take out a license for such business. Dur section 25 of the county government act (St. ing that month the plaintiff D. W. Ridenour 1897, p. 465, c. 277) power was conferred upon was arrested, taken many miles to Quincy, boards of supervisors of the several counties the county seat of Plumas county, and was “to license for purposes of regulation and there held in the custody of the sheriff under revenue, of every kind of business not proa warrant of arrest issued by the justice of hibited by law and transacted and carried on the peace of Plumas township in Plumas in such county.” When the ordinance in county, based upon a complaint of the license question was passed this law was in force, collector, which charged said Ridenour with but before the arrest of the appellant Ridenthe commission of a misdemeanor in the car our or any proceedings taken to enforce the rying on of a business for which a license collection of the license tax imposed by dewas required without first procuring a li fendant, the Legislature, by the act of March cense. Vhile said Ridenour was in the cus 23, 1901 (St. 1901, p. 635, C. 209; section tody of said sheriff, in order to procure, and 3366, Pol. Code), repealed by implication said as a condition for, his release from custody,

subdivision 25 of section 25 of the county he was required to, and did, deposit with government act, as far as it conferred power one C. C. Clough $1,301, which was the to license for purposes of revenue, and reamount claimed by the license collector as the stricted the power to matters of regulation amount of the license under the ordinance. alone. Ex parte Pfirmann, 134 Cal. 148, 66 The money so deposited was the money of Pac. 205; City of Sonora v. Curtin, 137 Cal. the plaintiffs, and, as alleged in the com 583, 70 Pac. 671; Town of Santa Monica v. plaint, it was agreed between the plaintiffs Guidinger, 137 Cal. 658, 70 Pac. 732; Ex and defendant that the money was deposited parte Braun, 141 Cal. 204, 74 Pac. 780. The and paid under protest, and that it should be effect of the act of March 23, 1901, was to held by the said Clough until the protest was repeal the ordinance of 1900 if the ordinance prepared. Upon deposit of this money, the svas a measure passed for the purpose of reysaid Ridenour was released from custody, enue and not for regulation, and that it is of and the case against him in the justice court the former character alone is not, we think, continued. On April 3, 1902, while the crim open to question. It is apparent from the inal case against said Ridenour was still title of the act itself, and the entire absence pending, the plaintiffs prepared and served on of any regulatory provisions, that it was inthe license collector of the county their pro

tended as a revenue measure, and comes withtest in writing against the payment of the in the scope of the rulings in City of Sonora license tax. Thereafter, upon the demand of v. Curtin and Town of Santa Monica v. Guidthe defendant, in order to prevent said Riden inger, supra, and the cases of Flanigan v. our from being again taken into custody County of Sierra, 196 U. S. 553, 25 Sup. Ct. under said warrant of arrest and prosecuted | 314, 49 L. Ed. 597; Wheeler & Ridenour v. for carrying on said business without a li. County of Plumas, 196 U. S. 562, 25 Sup. Ct. cense, said $1,301 was paid and delivered to 316, 49 L. Ed. 599. See, also, County of said defendant under protest by said C. C.

Sierra V. Flanigan (Sac. No. 1,219) 87 Pac. Clough. The plaintiffs then presented their 801, written and decided by this court since claim in writing to the board of supervisors this portion of this opinion was prepared. of the county, praying for the repayment of The cases in the Supreme Court of the the said money, which claim was rejected. United States were decided since the appeal Upon the rejection of said claim, the plain in this case was taken, and involved the tiffs commenced this action, resulting in the construction of ordinances practically identicjudgment appealed from. Upon this appeal, al with the one here in question, one of the argument in the briefs upon both sides which was a controversy between these same is devoted principally to questions as to the parties. It was there held, following the validity of such ordinance, and whether, at California cases immediately above cited, the time of the arrest of Ridenour, and the that the ordinances there in question were payment under protest of the license demand enacted for the purpose of revenue and not ed of him, said ordinance and license tax im for regulation. Equally so is the one under posed thereby had not been repealed, and the consideration here a revenue measure only, right of the county to collect any tax under and, under the act of March 23, 1901, adopted the ordinance extinguished and gone.

after its passage was repealed, and the effect It will be unnecessary to consider the of the repeal of the power to levy the license constitutional objections urged by appellant tax for revenue was to destroy all right against the validity of the ordinance, because to collect a license tax under the ordinance, it is settled by the authorities, not only that, even though due before the repeal took effect. by legislation of the state subsequent to the The repeal of the power repealed the ordi.

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