Archer v. Harvey

SLOSS, J.

The defendants appeal from a judgment in favor of plaintiff. The appeal is taken on the judgment-roll alone.

The complaint alleges that on November 21, 1898, Hannah S. Skinner, the predecessor in interest of the defendants, entered into a written agreement with the plaintiff, Archer. By the terms of the writing, which is set forth at length in the complaint, Mrs. Skinner, in consideration of services performed for her by Archer as attorney and counsel in a cause entitled B. W. Cave et al.

v.

George W. Tyler et al., and of further services to be performed “in appealing said cause to the supreme court” and presenting it in said court, and the payment of one-half of the costs and court fees of such appeal, agreed to give to Archer one-half part of such water and water-rights in a certain cienega, as might be awarded to Mrs. Skinner in the aforesaid cause. Archer agreed to faithfully perform the services mentioned, and to pay one-half of the costs of appeal, in consideration of the one-half part of all said waters and water-rights. The complaint goes on to allege the performance by plaintiff of all the obligations on his part. It is alleged that plaintiff conducted the litigation in the action of Cave

v.

Tyler through two trials in the superior court, and two appeals to the supreme court, the final decision in said cause having been rendered on the fifth day of August, 1905. By that decision it was finally determined that the interest of Hannah S. Skinner, in the waters described in the contract, was and is “two inches of water, continuous flow, measured under a four-inch pressure of and from the waters of said cienega.” There are further allegations as follows: Pending said litigation, in January, 1901, Hannah S.

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Skinner died intestate, the owner of said two inches of water, and leaving her surviving two heirs at law, the defendant Katie Harvey, her daughter, and Robert Powell, her son. L. A. Harvey, one of the defendants, is the husband of Katie Harvey. The daughter became administratrix of her mother’s estate. During the administration, the defendants acquired the interest of the son, Robert Powell, in said two inches of water, and, upon distribution of the estate of Hannah S. Skinner,' the entire estate, including said two inches of water, was distributed to the defendant Katie Harvey. The defendants have ever since owned and held said two inches by such title. The defendant Katie Harvey, as administratrix, was, in 1901, substituted in her mother’s place in said action of Cave