Alameda Water & San. Dist. v. Bancroft Fire Pro. Dist.

513 P.2d 728, 32 Colo. App. 350

• Court: Colorado Court of Appeals
• Decided: June 19, 1973
• Docket: 72-389
• Status: Published

Opinion

513 P.2d 728 (1973)

ALAMEDA WATER AND SANITATION DISTRICT, Plaintiff-Appellant,
v.
BANCROFT FIRE PROTECTION DISTRICT, Defendant-Appellee.

No. 72-389.

Colorado Court of Appeals, Div. I.

June 19, 1973. Rehearing Denied July 17, 1973.

Robinson-Litvak, P. C., William Hedges Robinson, Jr., Stephan A. Tisdel, Lakewood, for plaintiff-appellant.

Myers & Woodford, L. Thomas Woodford, Denver, for defendant-appellee.

Selected for Official Publication.

PIERCE, Judge.

Plaintiff, the Alameda Water and Sanitation District, filed this action seeking a declaratory judgment as to whether or not defendant, the Bancroft Fire Protection District, is required to pay certain costs currently being incurred by plaintiff for water supplied to, and repairs and maintenance on, certain fire hydrants in an area lying within the boundaries of both of these political entities. By its complaint, plaintiff also sought damages for defendant's refusal to pay for similar expenses previously incurred. Defendant filed only a motion to dismiss for failure to state a claim, which motion was granted by the court without explanation or comment. Plaintiff appeals. We reverse.

By its complaint, plaintiff set forth a justiciable controversy as to which of the parties has the obligation to pay for these services which is a proper subject for declaratory judgment. This being so, it was improper for the court to dismiss the action at this juncture of the proceedings. The recognized practice under such circumstances is for the court to allow completion of the pleadings, and, upon consideration of proved or stipulated facts, enter an order declaring the parties' rights. Bennett's, Inc. v. Krogh, 115 Colo. 18, 168 P.2d 554; See also, Armstrong v. Carman Distributing Co., 108 Colo. 223, 115 P.2d 386. Without such an order this court has nothing to review, and therefore, this matter is reversed and remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and remanded with directions.

SILVERSTEIN, C. J., and COYTE, J., concur.