Volume 167 — Colorado Reports

1. <bold>WATER AND WATER COURSES</bold> — <italic>Injunction — Diversion — Lateral — Collateral</italic><italic>Attack — Decree — Wrong District — Ineffective.</italic> In action to enjoin defendant from diverting water from plaintiff's lateral, plaintiff was not entitled to collaterally attack prior water adjudication decree, adjudging defendant entitled to decreed water priority, on ground that prior action was commenced in wrong district. 2. <italic>Injunction — Diversion — Lateral — Defendant's Lands — Irrigation —</italic><italic>River — Negative — Finding — Justified.</italic> In action to enjoin defendant from diverting water from plaintiff's lateral, trial court was justified in finding that at date defendant's predecessors in title made their original appropriation of natural water from plaintiff's lateral, defendant's lands were not being irrigated by water from river supplying lateral's present flow. 3. <bold>CONSTITUTIONAL LAW</bold> — <italic>Publication — Due Process — Notice — Personal —</italic><italic>Negative — Water Adjudication Suit.</italic> In original water adjudication suit by defendant, as adjacent landowner seeking decreed priority for a certain number of cubic feet of water, due process did not require that owner of lateral receive personal notice of such suit rather than notice by publication. 4. <italic>WATER AND WATER COURSES</italic> — <italic>Injunction — Diversion — Lateral Notice —</italic><italic>Statute — Compliance.</italic> In action to enjoin defendant from diverting water from plaintiff's lateral, where trial court found that defendant had complied with the various statutory provisions pertaining to notice, <italic>held</italic>,<page_number>Page 193</page_number> under such circumstances, plaintiff's contention that it was entitled to some sort of personal notice is without merit. 5. <italic>Injunction — Diversion — Lateral — Finding — Decree — Priority —</italic><italic>Relitigation — Negative — Propriety.</italic> In action to enjoin defendant from diverting water from plaintiff's lateral, trial court's further finding — that prior water adjudication decree granting valid priority to defendant from lateral was "valid and binding" to the end that issue as to whether there was in fact an actual appropriation for beneficial use by defendant's predecessors in title could not be relitigated in instant proceeding — was also correct. 6. <italic>Injunction — Diversion — Lateral — Abandonment — Estoppel — Negative</italic><italic>— Findings — Support — Evidence — Review.</italic> In action to enjoin defendant from diverting water from plaintiff's lateral, trial court's finding that plaintiff had failed to establish that defendant had abandoned his right to divert water from headgate on plaintiff's lateral and that he was somehow now estopped from asserting his right thereto was supported by evidence; and since testimony bearing on these issues posed issues of fact to be resolved by trial court, its findings will not be disturbed by reviewing court.

1. <bold>AUTOMOBILES</bold> — <italic>Foreign Registration — Acquisition — Colorado — Dealer —</italic><italic>Certificate of Title — Unnecessary — Statute — Ownership — Lawful.</italic> Under C.R.S. 1963, 13-6-18(2) pertaining to acquisition by persons in Colorado of automobiles registered in other states, and which provides that if any dealer acquires ownership by any lawful means of a motor vehicle title to which is registered under laws of and in state other than state of Colorado, such dealer is not required to procure Colorado certificate of title therefor so long as such vehicle remains in dealer's possession and<page_number>Page 520</page_number> at his place of business for sale and for no other purpose, <italic>held</italic>, under this provision, automobile dealer acquired ownership of automobiles by lawful means. 2. <bold>CONVERSION</bold> — <italic>Automobile — Wholesale-dealer — Title and Possession —</italic><italic>Evidence of Ownership — Transfer — Claim — Negative.</italic> Where automobile wholesale-dealer gave indicia of ownership — title and possession — to another automobile dealer, it parted with the only evidence of ownership which it had or could have had, for if Wyoming titles and possession were all that the first dealer needed to prove ownership, dealer to whom sale was made needed nothing more or different; hence, having transferred all that it had to the second dealer, wholesale-dealer had no title or ownership in automobiles on which to predicate its claim for conversion. 3. <bold>AUTOMOBILES</bold> — <italic>Dealer — Possession — Certificates of Title — Postdated</italic><italic>Check — Lender — Repossession — Victims — Loss.</italic> Where one automobile dealer put another dealer in position where latter could lawfully finance and mortgage automobiles, and in fact actually intended to do so by parting with possession of automobiles and certificates of title and taking postdated check given pursuant to financing arrangement between the second dealer and lending company, which check was later dishonored for insufficient funds and which caused lending company to repossess autos and partially recover dealer's indebtedness to it, <italic>held</italic>, as between two innocent victims of second dealer's defalcation, wholesale-dealer should be the one to suffer the unfavorable consequences rather than lender. 4. <italic>Registered in Other States — Lender — Statute — Purchaser — Transferee</italic><italic>— Negative — Mortgagee.</italic> Under pertinent statute dealing with acquisition by persons in Colorado of automobiles registered in other states, lending company giving floor plan loan to automobile dealer was not a "purchaser" or "transferee" within the purview of the statute, but was only a mortgagee. 5. <italic>Statute — Colorado — Registration in Other States — Certificates of</italic><italic>Title — Mortgagees — Floor Plan Loan — Negative.</italic> The statute dealing with acquisition by persons in Colorado of automobiles registered in other states does not require Colorado certificates of title to issue to mortgagees on floor plan loans.

1. <bold>WORKERS' COMPENSATION</bold> — <italic>Carpenter — Cut — Left Hand — Working Unit</italic><italic>Rating — Refusal — Reversal — Error.</italic> In workmen's compensation proceeding, where trial court reversed Industrial Commission and rules that as a matter of law, the claimant, a carpenter who severely cut his left hand, was entitled to a working unit disability, and that Commission did not have authority or discretion to decline to rate claimant as a working unit, <italic>held</italic>, in so doing, trial court erred, since by its order it usurped function of Commission when it attempted to transfer to itself functions and discretionary powers clearly granted by law to Commission. 2. <italic>Carpenter — Cut — Left Hand — Commission — Discretion — Award —</italic><italic>Percentage of Loss — Disability — Working Unit.</italic> Where claimant, a carpenter who severely cut his left hand, suffered partial loss of use of left hand, <italic>held</italic>, under such circumstances, Industrial Commission was authorized by statute to exercise its discretion in determining whether to grant award on basis of percentage of loss of use of hand or on basis of disability of claimant as a working unit. 3. <italic>Commission — Discretion — Award — Rating — Schedule — Working Unit —</italic><italic>— Left Hand at Wrist — Ruling — Lack of Abuse.</italic> Where Industrial Commission is given statutory discretion to grant percentage award under schedule or to rate claimant under working disability section where disability is limited to loss of use of left hand measured at wrist, <italic>held</italic>, under such<page_number>Page 572</page_number> circumstances, discretionary power rests solely with Commission, and reviewing court may not interfere with exercise of that discretion unless there is a clear showing of abuse thereof; and record in instant case clearly reveals no such abuse of discretion. 4. <italic>Complete Loss — Left Hand — Schedule — Commission — Other Type</italic><italic>Award — Prohibition.</italic> If claimant, who suffered partial loss of left hand, had completely lost his hand, he could have been compensated only under schedule specifying amount of compensation for loss of left hand, and Industrial Commission would not have had discretion to make any other award.