Opinion
Rehearing Denied May 28, 1975.
Page 749
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Page 750
Vranesh & Musick, George Vranesh, Boulder, for plaintiff-appellant.
Floyd K. Murr, Walsenburg, for defendants-appellees.
BERMAN, Judge.
This is a controversy involving the use and ownership of certain decreed water rights.
The waters involved are situated in Huerfano County and primarily consist of the 'Gordon Springs Ditch' (Gordon Ditch), and the 'Piedras Amarillas Ditch' (Piedras). The Piedras is situated to the west of the Gordon Ditch and forms a 'Y' connecting with the Gordon Ditch which flows northerly; however, the Piedras continues to cross the Gordon Ditch and runs parallel thereto for some distance before turning to the east. The Gordon Ditch, however, continues in a northerly direction passing the properties of the plaintiff and defendants.
In November 1969, plaintiff, Frank A. Andreatta, instituted this action against defendants, Erminio and Ermer Andreatta, seeking a declaratory judgment, injunctive relief, and damages. Plaintiff claimed an absolute right to 2.0 cubic feet per second of water from the Gordon Ditch by virtue of his succession to the interest of certain plaintiffs in a 1939 civil action. He alleged that the defendants are successors in interest to the defendants in the 1939 civil action who were permanently enjoined from interfering with the interest of plaintiff's predecessors to waters in the Gordon Ditch. The defendants answered denying that the present controversy was the same as that settled by the 1939 decree, denying wrongful interference with plaintiff's ownership of waters in the Gordon Ditch, and claiming an interest therein.
Prior to trial, defendants conceded in correspondence to plaintiff's ownership of the Gordon Ditch waters; however, thereafter, defendants filed an amended answer alleging their ownership of an interest in the Gordon Ditch and the Piedras, by virtue of a newly discovered 1944 decree, in which their predecessors in interest were declared partial owners thereof. Plaintiff amended his complaint to allege that he was not bound by the 1944 decree since it was not recorded, and further, that he was a Bona fide purchaser without notice of that decree.
After trial the court found, Inter alia, that, by virtue of the 1944 decree, plaintiff and defendants were successors in interest or persons owning partial interests in water rights in the Gordon Ditch and the Piedras, 'the water rights in issue herein;' that for approximately 23 years the parties to the 1944 decree and their successors channelled and pooled the available waters from the Piedras and Gordon Ditches and irrigated their respective lands on a 12-day rotation of use based on their fractional interests adjudicated under the 1944 decree; that although the decree was not recorded, the parties had constructive notice thereof; and that the water rights were appurtenant to the lands to which the parties claimed title. In accordance with these findings, the court held that plaintiff was the owner of an undivided four and one-half twelfths interest in the Gordon Ditch and the Piedras, and defendants were the owners of an undivided two and one-half twelfths interest therein, 'the remaining 5/12ths being vested in other persons not parties to this action,' and that the plaintiff had not established his claim for damages to his crop. Plaintiff appeals. We affirm.
Plaintiff contends: (1) That the trial court erred in not issuing a contempt citation against the defendants, (2) that the trial court erred in not binding the parties to admissions and statements made prior to trial, (3) that the trial court erred in finding that plaintiff was not a Bona fide purchaser without notice, and (4) that the trial court erred in decreeing specific water rights to persons not parties to this action. Plaintiff also challenges the sufficiency of the evidence to support the judgment dividing the interest in the waters and denying his claim for damages. The evidence establishes that the 1939 civil action resulted from a conflict over the use of the waters in question. The 1939 decree, in which plaintiff's predecessors were declared owners of waters in the Gordon Ditch, in the amount of 2.0 cubic feet per second, did not, however, put the matters at issue to rest. In 1943, numerous parties, including the defendants in the 1939 civil action, brought suit against the plaintiffs in the 1939 action to determine their rights to the waters involved. This suit resulted in a stipulation among all the parties to the effect that the combined waters of the Gordon and Piedras Ditches were to be divided among the parties with seven and one-half twelfths interest going to the plaintiffs, and four and one-half twelfths interest to the defendants. The interests so specified became incorporated into the 1944 judgment and decree. However, that decree, prior to the institution of the instant case, had not been recorded.
We note initially that the existence of the 1939 decree is of little significance in resolving the issues presented in this case. Even if the 1943 action could have been barred by a plea of Res judicata, see Williams v. Hacker, 16 Colo. 113, 26 P. 143, the issue was not raised by the parties to that action and the conclusiveness of the 1939 judgment was waived by the parties having entered into a subsequent stipulation establishing their rights to the waters in question, and which was adopted as the decree of the court in the latter case. See In re Landau's Estate, 158 Cal.App.2d 176, 322 P.2d 222.
While water adjudication decrees may be recorded in order to provide the notice required by s 38--35--109, C.R.S.1973 (C.R.S.1963, 118--6--9), Davis v. Hurt, 81 Colo. 10, 253 P. 394, the legal effect of the notice accorded under this statute becomes immaterial where there is constructive notice regarding the existence of conflicting rights. Shamrock Land & Cattle Co. v. Hagen, 30 Colo.App. 127, 489 P.2d 607. Our review thus is confined to a determination of whether the evidence supports the trial court's finding that the plaintiff had constructive notice of the rights established in the 1944 decree.
The testimony, as the court found, was in conflict. Plaintiff testified that he purchased his property in 1967 and that his interest in the waters in question was based upon the 1939 decree and denied that there had been any rotation of waters based on the interests adjudicated in the 1944 decree. August Andreatta, the previous owner of the ranch which plaintiff now owns, testified that the waters in the Piedras were rotated, that it was done on the basis of one-twelfths, that plaintiff had been running the ranch many years before it was sold to him and that he knew how the water was being distributed. Defendant Ermer Andreatta testified that he had resided on the land next to plaintiff's for approximately 49 years, that the Gordon Springs water and the Piedras water all flowed into the same channel and that the water had been allocated on a 12-day basis from 1934 to 1969. Defendant Erminio Andreatta testified that all the water was 'lumped together,' and 'pooled in one unit,' that the water had been distributed on the basis of the 1944 decree, that plaintiff had been appointed at one time as ditch boss and that he knew the water was being rotated. Jose Martinez, one of the defendants in the 1943 action, testified that after 1943 the water in the Gordon Springs and the Piedras were run together and rotated on a daily basis. Pedro C. Castro, also one of the defendants in the 1943 action, testified that after 1943 all of the waters were grouped together and run in one ditch, whether it came from the Piedras or the Gordon Springs Ditch, and that the water was rotated on the basis of the rights adjudicated in the 1944 decree.
Based on this evidence, we cannot disturb the trial court's finding that plaintiff had constructive notice of the distribution of the water and the interest adjudicated in the 1944 decree. The evidence, although conflicting, clearly shows that plaintiff, who had been reared in the area, was not a stranger to the waters in question, or to the parties. He acquired his interest directly from one who had been in possession under the 1944 decree and who testified to the rotation of the waters in accordance with the 1944 decree and to plaintiff's presence on the land during such Such knowledge of the use by plaintiff's predecessors while they were in possession was notice to plaintiff of the use and distribution of the waters.
Plaintiff contends that he cannot be bound by the 1944 decree in the absence of its having been recorded pursuant to s 38--35--109, C.R.S.1973 (C.R.S.1963, 118--6--9), prior to his acquiring title. The rule, however, is to the contrary. Recording under the statute is not the only means by which notice may be acquired. The statute itself refers to those persons 'such as have notice' of 'instruments . . . affecting the title to real property,' and this has been held to mean constructive or implied notice, as well as Actual notice. McLure v. Koen, 25 Colo. 284, 53 P. 1058; Shamrock Land & Cattle Co. v. Hagen, Supra; Jaramillo v. McLoy, 263 F.Supp. 870 (D.Colo.).
Plaintiff contends that the trial court erred in not binding the defendants to certain statements made during the course of correspondence prior to trial. Plaintiff specifically refers to a letter written to his attorney by defendants' attorney, while attempting to settle this matter, which stated that defendants would stipulate that they owned no interest in the Gordon Springs Ditch. We agree with the trial court that the letter, being an offer or attempt to compromise or settle this matter, was not admissible. Consolidated Oil & Gas, Inc. v. Roberts, 162 Colo. 149, 425 P.2d 282. Furthermore, we have reviewed the letter in question in its entirety and it does not suggest that defendants were willing to forego their claim to other waters which were in fact the subject of this lawsuit; hence, even if it had been admitted, it would have been of no aid to plaintiff.
Plaintiff contends that the trial court erred by decreeing specific water rights to persons not parties to this action. The trial court's Acknowledgment that certain interests in the waters in question were vested in persons not parties to this lawsuit had no effect whatsoever on the rights decreed to the plaintiff and did not serve to diminish the amounts previously decreed to his predecessors in interest by the 1944 decree. If the amount or the extent of the right acknowledged by the court to exist in non-parties is in error, it is for those parties, who hold the legal title to the property, to complain, not the plaintiff. See Koch v. Story, 47 Colo. 335, 107 P. 1093.
Plaintiff's last contention is that the trial court erred in not making an award for loss of his potential hay crop. Plaintiff testified that he owned 83 acres, but that he had not irrigated all of the land since he became the owner. There was no specific testimony as to the amount of acres planted. In addition, while plaintiff testified that he did get some irrigation waters and that he had a supplemental irrigation well, he did not indicate the amount of water used from either source. The trial court found that the evidence was uncertain as to the water available for irrigation and was too speculative to provide a sufficient factual basis for an award of damages. We agree with the court's ruling.
In view of our holding in support of the trial court's final determination, plaintiff's contention that the court erred in not issuing a contempt citation against the defendants is now moot.
Judgment affirmed.
ENOCH and VAN CISE, JJ., concur.