(1) Whenever a dispute arises as to which respective class of livestock has the better right to graze upon any particular portion of said public domain, the district court of the county wherein such disputed area or some part thereof lies has jurisdiction to determine the matters in an action in equity for an injunction to be brought by any person claiming such better right and against any person violating or threatening to violate any such alleged better right. In all actions brought under the terms of this article, service of process may be made in person or by publication, as provided by rule 4 of the Colorado rules of civil procedure, and the procedure shall be as provided by these rules. The plaintiff may proceed against all unknown defendants the same as in an action in rem and may have said disputed area established either as a cattle or sheep range, as the case may be. In such action, if any defendant disclaims or suffers a decree against him by default, no costs shall be taxed against him. The court may in its discretion grant a temporary restraining order or a temporary injunction as in ordinary cases of suits for injunctions.
When such cause is at issue, the court shall in the first instance refer all questions offact to three referees. Said referees shall be residents of the state of Colorado and two of them, if possible, shall be persons using or residing in the vicinity of the range concerning which the dispute arises, and one of whom shall be engaged in the cattle business and one person engaged in the sheep business, if discreet persons engaged in said businesses are available. The two, immediately upon taking the oath as referees, shall designate some disinterested person to act as a third referee and, subject to such objection as may be made as provided by law, the court may appoint the third person so designated. In the event of failure to agree upon the third member of said board, the court shall have authority to name the third person.
The referees shall possess the qualifications, exercise the powers and functions, and,except as otherwise provided in this section, be subject to the same objections as provided by law, and the procedure before said referees shall be as provided by the Colorado rules of civil procedure. Within ten days after the report of said referees is filed, any party to the action may file written objections to said report, specifically setting forth the objections thereto and asking that the same be modified or disapproved, as the case may be. The court shall thereupon hear and determine all said objections and either approve or set said report aside. Thereupon the court may require additional findings or may assume jurisdiction and determine all questions at issue and enter a decree accordingly. Unless objections are filed to said report, the same shall be final and a decree shall be entered thereon.
Upon final hearing, either upon the report of said referees or at the conclusion of thehearing by the court, if it appears that plaintiff has the preferred or better right to the use of the public domain in question as against the defendants, the court shall enter a decree finding as definitely as may be the boundaries of such disputed area and may enjoin and restrain the defendants and their servants, agents, and employees, from interfering with such right of the plaintiff and others engaged in the same business and award such other relief as justice and equity may require.
Source: L. 29: p. 444, § 3. CSA: C. 160, § 162. CRS 53: § 8-8-3. C.R.S. 1963: § 8-83.
Cross references: For procedure before referees, see C.R.C.P. 53.