Opinion
Dec. 1, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Winner, Berge, Martin & Clark, Fred M. Winner, Denver, March, March & Sullivan, John-David Sullivan, Fort Collins, for plaintiffs in error.
Wood & Herzog, David L. Wood, Fort Collins, for defendants in error.
SILVERSTEIN, Chief Judge.
Plaintiffs in error were plaintiffs in the trial court and appeal from a judgment dismissing their complaint, entered after a trial to the court.
This is an action for specific performance of a contract for the purchase and sale of real property. The dispute arose over the question as to whether or not seventy-five of Grand Lake Water (also referred to as Horsetooth Water) were included in the sale of the farmland described in the contract.
The evidence shows that defendants desired to sell their farm located in Larimer County. They listed the property with a real estate agent. The listing described the land and included two shares of stock in the Water Supply and Storage Company. Plaintiffs desired to buy the property and the real estate agent arranged a meeting on a Saturday morming, May 3, 1969. a Saturday morning, May 3, 1969. and the parties apparently agreed to the sale. It was undisputed that in discussing water rights, the two shares of stock and the right to tap into the water lines of the City of Fort Collins were mentioned, but nothing was said about the Horsetooth Water. The plaintiffs requested that a written memorandum of the agreement be signed at that meeting and their attorney prepared a handwritten document entitled 'Option Agreement,' which was signed by all the parties.
The agreement described the land and then stated, '* * * together with all appurtenant water rights, including 2 shares of Water Supply and Storage. * * *'
The parties had also agreed to meet on the following Monday to finalize the transaction by executing a formal purchase and sale agreement. Over the weekend the defendants were advised that the seventy-five units of Horsetooth Water they had been using on the farm were 'appurtenant' to the land. Also over the weekend the plaintiffs learned of the existence of the Horsetooth Water.
At the Monday meeting plaintiffs tendered a contract to defendants which contained the following, after describing the land,
'Together with two (2) shares of stock in the Water Supply and Storage Co., together with all other appurtenant water rights including any water taps applicable.'
In discussing the above language plaintiffs insisted that the Horsetooth Water was to be included in the sale and defendants insisted that it was never offered for sale nor intended to be included. Defendants refused to sign the contract and the meeting ended without a resolution of the matter.
Wilson, the only plaintiff who testified at the trial, stated with reference to the Horsetooth Water, '(O)bviously we didn't understand each other on it.'
The trial court found that defendants did not intend to sell the Horsetooth Water, that plaintiffs did not learn of its existence until after the agreement of May 3rd had been signed, that there was no meeting of the minds relative thereto and concluded as a matter of law that there was no agreement concluded between the parties. We agree, and affirm the judgment.
The law relative to the conveyance of water rights in Colorado we set forth in Denver Joint Stock Land Bank v. Markham, 106 Colo. 509, 107 P.2d 313, wherein the Supreme Court, quoting from an earlier case, stated,
'Whether of not a water right passes in a deed conveying lands, without any specific mention of the right, depends upon the intention of the grantor, which is to be gathered from the express terms of the deed, and, if that is silent, from the presumptions arising from circumstances surrounding the transaction.'
It is clear from the evidence in this case that defendants never intended to sell the Horsetooth Water and that it was never offered to plaintiffs.
The evidence also discloses that there was no meeting of the minds relative to the disputed water rights. There was, therefore, no contract upon which specific performance could be decreed. American Mining Co. v. Himrod-Kimball Mines Co., 124 Colo. 186, 235 p.2d 804; Bowman v. Reyburn, 115 Colo. 82, 170 P.2d 271.
The judgment is affirmed.
COYTE and DUFFORD, JJ., concur.