Opinion
June 25, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 620
Jerry Sandell, Salida, for plaintiffs-appellants.
George W. Woodward, Alamosa, for defendants-appellees.
PIERCE, Judge.
Plaintiffs appeal from an order denying their motion to amend a judgment entered in their favor during April of 1970. The original lawsuit arose when plaintiffs were denied access to defendants' land for the purpose of clearing out beaver dams which were obstructing the flow of water in streams from which plaintiffs derived irrigation water. Plaintiffs sued for injunctive relief seeking an order that defendants be permanently enjoined from interfering with plaintiffs' removal of the beavers and the beaver dams. The trial court found that water to which plaintiffs were entitled was being diverted by the beaver dams, but instead of granting the injunction requested, it ordered the game and fish department to go upon defendants' land and to remove the beaver by means of live trapping for relocation to another habitat.
In their 'motion to amend the judgment' filed in March 1972, plaintiffs alleged that the efforts of the game and fish department to remove the beaver had been unsuccessful for the most part, and that sufficient beaver could not be removed by live trapping to guarantee that the plaintiffs received the water to which they were entitled. They therefore requested that the judgment be amended to allow the game and fish department to use not only live trapping but 'whatever manner or method' might be necessary to remove the beaver and beaver dams.
Following a hearing on plaintiffs' motion, the trial court found that the game and fish department did have the capacity to remove the beaver by live trapping, denied plaintiffs' motion to amend the judgment and ordered that the prior judgment remain in full force and effect. Plaintiffs bring this appeal alleging that the trial court should have granted their motion to amend the judgment, and should have ordered the defendants to remove the obstructions from the creeks, and enjoined them from diverting the flow of the streams in any manner.
I
On appeal, the defendants argue that the motion to amend the judgment was not properly before the trial court. They argue that the motion was governed by C.R.C.P. 59(e) which requires that such motions be filed not later than ten days after the entry of judgment. However, this rule is inapplicable here.
Where relief granted by a trial court is prospective in nature, the trial court has the inherent power to modify the relief granted upon a showing that the original relief has not been effective in enforcing its judgment. United States v. United Shoe Machinery Corp., 391 U.S. 244, 88 S.Ct. 1496, 20 L.Ed.2d 562; Annot., 136 A.L.R. 765. See City & County of Denver v. Denver Tramway Corp., 187 F.2d 410 (10th Cir.); La Junta & Lamar Canal Co. v. Hess, 32 Colo. 1, 71 P. 415. While the power to amend does not extend to the correction of legal error committed in the original trial, See, e.g., Degenhart v. Harford, 59 Ohio App. 552, 18 N.E.2d 990, it does permit a review of the effectiveness of the relief granted.
Here, plaintiffs do not question the validity of the original judgment of the trial court. In fact, they rely upon the judgment insofar as it entitled them to injunctive relief. The motion to amend alleges that the original relief granted has not been effective and that therefire, it should be modified to give them effective relief. Furthermore, no express reservation of jurisdiction for such purposes is required to be included in this type of decree. Ward v. Prospect Manor Corp., 188 Wis. 534, 206 N.W. 856, 46 A.L.R. 364. Thus, it was proper for the trial court to entertain the motion to amend the judgment.
II
Plaintiffs argue on appeal that the trial court erred in finding that the offending beaver population could be removed from the streams by means of live trapping. They argue that more drastic measures would be required to remove the beaver and that the court should order the defendants to permit the game and fish department to kill the beaver if necessary.
At the hearings upon the motion to amend the judgment, the trial court heard testimony from several witnesses with regard to the feasibility of removing the beaver by means of live trapping and with regard to the ecological advisability of the actions requested by the plaintiffs. The findings made by the trial court are supported by the testimony of these witnesses and will not be disturbed upon review. Cline v. Whitten, 150 Colo. 179, 372 P.2d 145.
III
The plaintiffs also argue that the trial court erred in directing its order to the game and fish department which was not a party to the lawsuit. However, plaintiffs do not have standing to raise any defect in this regard. It is undisputed that the trial court had personal jurisdiction over all of the plaintiffs and defendants involved in this suit and that it had subject matter jurisdiction. The game and fish department has not challenged the authority of the court in ordering it to remove the beaver. Rather, the department has attempted to comply with the court's order. Thus, there can be no prejudice To the plaintiffs arising out of any lack of jurisdiction over the department; that issue can only be raised by the department if and when it chooses to contest the order. Cf., Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22.
IV
Finally, the plaintiffs contend that the trial court erred in failing to order the defendants to remove the obstructions from the streams and to refrain from diverting the water to the detriment of plaintiffs' decreed water rights. There is no question in this case that plaintiffs are entitled to the unobstructed flow of water. See Cline v. Whitten, Supra. However, the trial court has wide discretion in shaping injunctive relief in order to enforce those rights, O'Neill v. Carolina Freight Carriers Corp., 156 Conn. 613, 244 A.2d 372; Stigall v. Sharkey County, 213 Miss. 798, 57 So.2d 146, and we find no abuse of that discretion here.
Plaintiffs also suggest that the subject water must be administered by the office of the state water engineer. See 1971 Perm.Supp., C.R.S.1963, 148--21--35(7). However, plaintiffs have not joined the state engineer as a party to this lawsuit, nor have they shown any attempt to seek a solution to these problems through that office. However, nothing in the trial court's judgment would preclude plaintiffs from utilizing the services of the state engineer under the above-cited statute.
The caption on the notice of appeal shows Wayne Crosby, Division Water Engineer as a defendant-appellee, but there is nothing in the record to show service of process upon him or upon the office of the State Engineer. Such caption is in apparent violation of C.A.R. 12(a).
Judgment affirmed.
SMITH and RULAND, JJ., concur.