Volume 23 — Colorado Court of Appeals Reports

<p>1. Municipal Cobpoeations — Power to Contract Loans — Ordinance. Under Mills’ Stat. sees, 4403, 4443, (Rev. Stat. secs. 6525, cl. 6, 6673) no loan can be contracted on behalf of a municipal corporation save by authority of an ordinance.</p> <p>2. --Publication of Ordinance. And the ordinance must be published in conformity to the provisions of the statute. If there be a newspaper published, or a newspaper of general circulation, within the town, the ordinance must be published in such newspaper. Only where there is no such newspaper is a posting permitted. The requirements of the statute are not dispensed with by a general ordinance directing the posting of all ordinances.</p> <p>An ordinance assuming to authorize the issue of bonds of the municipality, for the purchase of a system of water works, is of a “general and permanent nature,” within the meaning of the latter section quoted, and until published, as required by the statute, is without effect. Bonds of the municipality issued thereunder are void.</p> <p>3. -- — - Recitations of Bonds — Effect. A recitation of the bonds that the statute has been complied with does not establish the publication of the ordinance, nor estop the town to deny it.</p> <p>4. --Purchaser of Bonds Put on Inquiry. One who purchases such a bond must, at his peril, take notice of the statute, and its limitations, and advise himself as to whether these have been complied with.</p> <p>5. --Bonafide Purchaser. There being an absolute lack of power in the officers of the corporation to issue the bonds, the plea of bonafide purchase does not avail.</p> <p>6. --Payment of Interest on the Bonds — Effect. That the town has for a series of years paid interest upon bonds issued without authority, levying a tax for the purpose, does not estop it from pleading their invalidity.</p> <p>7. Statutes — Construed. The provisions of the statute requiring the publication of municipal ordinances (Mills’ Stat. sec. 4443, Rev. Stat. sec. 6673) that “it shall be a sufficient defense to any suit or prosecution for such fine or penalty,” applies to actions of every character. The failure to publish is a complete defense to any action founded upon an ordinance.</p> <p>8. Pkecedents — Q-eneral .Language, is to be taken in connection with the facts of the particular case.</p> <p>Precedent judicial opinions ought not to be followed where grievous wrong may result.</p>

<p>Appeal .from Denver District Court. Hon. Samuel L, Carpenter, Judge.</p>

<p>1. Tax Titles — Deed Not Recorded. Until recorded a tax deed does not purport to convey the title, nor does it even cloud the title of the original owner.</p> <p>2. Evidence — Admission in Pleading. The admission, in the reply, of the execution of a tax deed is no admission that it has been recorded.</p> <p>Nor that it complies with the prerequisites prescribed by the statute.</p> <p>A deed not offered in evidence will be considered as non-existent unless every essential attribute of the deed be admitted by the opposing party.</p>

<p>1. Tax Titles — Tax Deed Not Recorded. A tax deed is without effect to set in motion the statute of limitations, until recorded.</p> <p>2. Evidence — Documents Pleaded But Not Proven, are considered as non-existing.</p>

<p>1. - Summons — Service by Publication• — Affidavit. The publication of a summons upon an affidavit which fails to show the postoffice address of the defendant, or state that it is unknown to the affiant, is without effect.</p> <p>2. Limitations — Color of Title. A tax deed not recorded is not color of title.</p> <p>3. Tax Titles — Void Deed. A treasurer’s deed based upon a sale to the county, and an assignment of the certificate, but the recitations of which fail to show the date of such assignment, or by whom it was made, is void.</p> <p>So a deed which shows that the land was struck off to the county on the first day it was offered.</p> <p>And a deed which fails to disclose on what days previous to the sale, if any, the land had been offered.</p> <p>4. Appeals — Partial Error — Judgment. A decree assuming to cancel a tax deed as to lands not in controversy in 'the action, modified as to the excess.</p>

<p>Appeal from Lake District Court. Hon. Charles Cavender, Judge.</p> <p> Motion to Dismiss Appeal. </p>

<p>Appeal from Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>Quieting Title — Answer. The defendant if he would contest the right of the plaintiff must plead an interest in the premises, adverse to the plaintiff, and specify its nature; otherwise the plaintiff is not required to prove either title or possession.</p> <p>An answer consisting of mere admissions and denials is insufficient.</p> <p>But the Code does not prescribe any specific form for the defense. Any words which show a good title in defendant,-and, by reasonable intendment, deny plaintiff’s title and right of possession, are sufficient; e. g., an averment that defendant is the “grantee and holder of the title,” under a certain final decree which is set forth.</p> <p>Or an averment that defendant, at the date of the institution of the action was, and still is, the owner and holder of the land under a tax deed which is described.</p>

<p>1. Pleading and Evidence — Plaintiff Recovers on the Cause of Action Pleaded. In an action for deceit it is error to permit a recovery upon the theory of mere actionable negligence.</p> <p>2. Evidence — Burden of Proof. The principal demanding damages of his agent for deceit practiced upon him, or other misconduct, has the burden of proof.</p> <p>3. --- Privileged Communications — Attorney and Client. A state-. ment by the client to the attorney, in answer to his question as to how the client understands the transaction in hand — whether it includes three lots, or only two — made in the presence of a stranger to the matter, is not privileged, as to said Stranger, at least, who may testify to same.</p> <p>4. -Relevancy. In an action for deceit, in inducing plaintiffs to purchase and accept only two city lots, supposing that they acquired three, plaintiff’s knowledge of the width of the lots is not only relevant but highly important.</p> <p>5. Deceit — Evidence. In an action for deceit considerable latitude should be allowed to defendant in the inquiry touching his conduct; e. g., where plaintiffs complained that they had been tricked into the belief that they were acquiring a greater area of ground than they in fact acquired, and relied upon the testimony of one of the plaintiffs and a daughter of plaintiffs.</p> <p>6. Instructions — Conflicting. Error in one, is not cured by another which prescribes the true rule.</p>

<p>1. Bill of Exceptions — 'When Necessary. The contention upon appeal was limited to error alleged in the instructions. The only prejudicial result possible being to enhance the damages awarded, held that in the absence of a bill of exceptions preserving the evidence, the question could not be considered, especially where no complaint is made touching size of verdict.</p>

<p>Appeal from Saguache District Court. Hon. Charles C. Holbrook, Judge.</p>

<p>Appeal from Washington District Court. Hon. IT. P. Burke, Judge.</p>

<p>Bita of Exceptions — When Necessary. Under Sec. 24 of Chapter 6 of the laws of 1911, no exception need he taken to a final judgment, or to the denial of a motion for a new trial.</p>

<p>Appeal- from Boulder District Court. Hon. Harry P. Gamble, Judge.</p> <p> Motion to Dismiss Appeal. </p>

<p>Error to Weld District Court. Hon. Harry P. Gamble, Judge.</p> <p> Motion to Strike Bill of Exceptions. </p>

<p>Fraternal Societies — Construction of By-Laws. The by-laws of a fraternal society will not be given retroactive effect unless this intention is clearly disclosed by the words used.</p> <p>A benefit certificate was expressed to be “liable to forfeiture if said member shall not comply with * * * such by-laws and rules as are or may be adopted.” The beneficiary was at the time of his application a mining engineer, and this was stated in the application. He followed this profession until his death. At the time of his admission to membership his profession was not classed as hazardous by any provision of the by-laws. A by-law, subsequently adopted, provided that any person “to become” a benefit member “must possess” certain qualifications, which excluded from eligibility those “engaged about mines whose duties require them to enter into mines at any time.” Another clause of the same by-law provided that “any member properly'introduced and receiving his benefit certificate who * * * shall engage in any of the prohibited vocations,” ■ etc., might retain the certificate upon certain conditions. Held that in each instance the words of the by-law looked to the future, and had no application to the member in question. Head Camp, etc. v. Woods, 34 Colo. 1, distinguished.</p> <p>Another clause of the same by-law provided that in the case of “persons working under ground in quartz, copper, gold or silver mines, not including placer mines, drifting under ground,” the beneficiary, if death resulted from such hazardous occupation, should receive but a percentage of the face value of the certificate. Held that the language of the by-law, being vague, ambiguous, and misleading, must be construed favorably to the member, and that the clause last cited under such construction would not, in this instance, include a member following the calling of a mining engineer.</p>

<p>Appeal from Washington District Court. Hon. H. P. Btjrke, Judge.</p>

<p>Appeal from Denver District Court. 'Hon. Greeley W. Whiteord, Judge.</p>

<p>1. Appeals — Verdict Upon Conflicting Eviednce, will not be disturbed where there is sufficient to support it.</p> <p>2. Contracts — Construction. In. construing a warranty of personal property the court should, so far as possible,'put itself in the place of the contracting parties, in view of all the facts and circumstances attending the transaction; and when their intention is thus ascertained, inapt expressions and technical rules of construction should be disregarded.</p> <p>3. - Warranty of Machinery. A warranty of the successful operation of a machine implies that the purchaser shall have a reasonable time to test it by putting it to the use for which it was purchased. If, Upon such test, it fails to conform to the warranty the purchaser notifying the seller is in apt time.</p> <p>4. - Construed. A letter offering a particular machine, and a written guarantee of its condition, subsequent to the placing of an order therefor, are to be taken as one instrument.</p> <p>Otherwise as to a letter written by the seller and mailed four days later, nothing appearing to show that it was so considered by the parties.</p> <p>Appellees were excavating a ditch in Larimer County. Appellants were possessed of a steam shovel which was in the State of Washington. Neither party had ever seen the shovel,- and appellants knew of its condition only by report. Appellants were not manufacturers of or dealers in such implements. All this the appellee knew. Appellants sold the shovel to appellee F. O. B. at Tacoma, Washington, with a written guarantee of its “good working condition,” adding “and in event of not proving so will refund all money paid by you on same.” Held to import that if the machine failed to comply with the warranty it was to be returned, and the purchaser to receive what had been paid on aecount of the purchase price; that the seller’s liability did not extend to the freight, expenses of installation, and other outgoes of the purchaser.</p> <p>Held that a letter of appellee to appellant containing the first complaint as to the condition of the shovel, and demanding a return of what had been paid on account of the purchase price, making no further claim, was a construction of the contract by appellee.</p> <p>5. Meastjbe oe Damages — Breach of Warranty of Goods — Rescission of Sale. Where the buyer sues upon a general warranty of personal property sold, he recovers the difference between the actual value of the thing, and its value in case it had been as warranted. If he rescinds the sale he recovers what has been paid on account of the purchase, plus all damage sustained by reason of the failure of the article to comply with the representations upon which it was purchased.</p>

<p>Appeal from Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Negligence — Presumptions. In the action of servant against master for personal injuries, an injury to the servant raises no presumption of negligence on the part of the master.</p> <p>2. ' Masteb and Servant — Master’s Duty as to Place of Work. Where the place in which the servant works is continually changing, by reason of his work, e. g., where a miner is engaged in breaking ore in a stope, the general rule that the master must use reasonable care to make the place where the servant works reasonably safe, has no application.</p> <p>3. -Promise of Master as to Safety of Place. A miner applies for work to the foreman of a metalliferous mine and is promised “a safe place” in which to work. He is assigned to the work of breaking ore in a stope, where, by reason of his work and that of other miners, conditions are constantly changing, and accepts it without demur or objection. He continues for several days, another shift being also employed, and four or five tons of ore being removed daily by each shift. Held unreasonable to say that the promise of the foreman was available to plaintiff during all his employment, and all the changing circumstances thereof.</p> <p>4. - Servant’s Assumption of Risk. An experienced miner will be presumed to know the dangers which attend working in a stope in a metalliferous mine — that dynamite or other high explosives are used in su£h work, and have a tendency to shatter and loosen the rock, even in places somewhat remote from the place of the shot; and he assumes the ordinary risks which attend the occupation. The possible fall of a fragment of rock from the roof is one of these risks.</p> <p>5. Practice in Supreme Court — Irrelevant Allegations Rejected. Action by servant against master for an injury attributed to the negligence of the master. Among other neglects the complaint charged the failure to keep on hand near the stope in which plaintiff was set to work “square sets, stulls, and lagging.” It appearing that the stope where the accident occurred was a filled stope, where neither timbers, stulls or lagging are necessary, or .can be used, these allegations were rejected from consideration in an appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from Denver District Court. Hon. Greeley W. Whiteord, Judge.</p>

<p>Appeal from Jefferson District Court, Hon. Flor Ashbaugh, Judge..</p>

<p>1. Physician and Surgeon — Liability for Malpractice. A physician or surgeon, employed to treat an injury, in the absence of any special contract agrees that he possesses the reasonable skill and learning of others of his profession; that'he will exercise his best judgment in the diagnosis, and in the treatment of the case, and reasonable and ordinary diligence, care and skill to effect a cure. He does not warrant a cure, and is not responsible for a failure therein, not resulting from his want of ordinary skill, or his failure to exercise ordinary care; and he is not responsible for mere mistakes of judgment. Nor is he chargeable with a result due to the patient’s refusal to observe his directions.</p> <p>2. -Evidence. His skill in diagnosis and treatment are to be tested by the recognized rules of his own school, to be ascertained by the testimony of experts, and their opinions based upon the evidence.</p> <p>The condition of the patient’s injured member at'the time of the trial is not evidence upon the question of the surgeon’s negligence.</p> <p>There is no difference between the character of testimony necessary to establish a standard of proper treatment, and that to establish a standard of ordinary care and skill.</p> <p>3. Negligence — Presumption. That the treatment of an injured person by a surgeon is followed by an unfavorable result raises no presumption of negligence on the part of the surgeon. The maxim Bes ipsa loquitur has no application.</p> <p>4. Instructions — Shifting Burden of Proof. An instruction which imposes upon the defendant the burden of proof which, by law, rests upon the plaintiff, is error.</p> <p>5. - Submitting Incompetent Evidence. An instruction which permits the jury to consider both competent and incompetent evidence upon the matter in issue is error. •</p> <p>6. New Trial — Verdict Against the Weight of Evidence. A verdict so manifestly against the weight of the evidence as to appear the result of bias or prejudice, misconception of the evidence, or of its legal effect, or either non-direction or misdirection as to the law of the case, will be set aside.</p>

<p>Appeal from Pueblo District Court. Hon. J. E. Bizer, Judge.</p>

<p>1. Witnesses — Competency. Under sections 7266, 7267. of the Revised Statutes, one suing to establish a trust in lands against the heir of him who died seized, is not a competent witness, of his own motion, as to any fact occurring before the death of such ancestor.</p> <p>That she had no knowledge of the trust until after the death of such ancestor is a fact, within the rule. The plaintiff is incompetent to speak to it.</p> <p>Thé purpose of the statute is to protect the undisputed heirs of an intestate against claims against the estate by those not claiming as undisputed heirs or distributees.</p> <p>2. Laches — Wherein It Consists, in neglecting to assert a right after knowledge of it, or after, by reasonable diligence or circumspection, the knowledge would have been obtained.</p> <p>3. Cohsteuctive Tkust — Delay—Want of Diligence — Proof. In equity, the suitor must allege and prove excuse for delay and want of diligence, especially where it is sought to enforce a constructive trust. Such delay and want of diligence is within sec. 4073 Rev. Statutes; but the time begins to run from actual or constructive knowledge of the trust.*</p>

<p>1. Cloud Upon Title — Trust Deed Extinguished by Tax Sale. Where title to lands is acquired under a tax sale a trust deed executed by the former owner is a cloud upon the title.</p> <p>2. Parties — Necessary Defendants. In a bill to remove as a cloud upon the title, a deed of trust, neither the trustee, nor his heirs if he be deceased, are necessary as defendants.</p> <p>3. -Misjoinder of Defendants. In a bill to remove a cloud upon title all adverse claimants may be joined, even those between whom there is no privity.</p>

<p>1. Evidence — Judicial Notice. The court is not required to take judicial notice of the distance between different localities, even in the same state, and the ordinary course by which the mail is transmitted.</p> <p>2. Appeals — Presumptions, are all in favor of the regularity of the judgment assailed, e. g., the contrary not appearing by the record it will be presumed that the appellant was present by counsel at the hearing of a motion of which he had notice.</p> <p>3. Judgment — Vacating—Mistake, Surprise, etc. The power conferred upon the courts by sec. 75 of the code is discretionary.. To warrant interference with the action of the trial court by a court of review, a gross abuse of discretion must appear.</p> <p>Where the cause was regularly set down, upon notice to defendant’s attorney; for a day forty-nine days later than the assignment, so that ample time was afforded the attorney to advise his clients and prepare for the trial, but he did nothing, and failed to attend at the trial, it was held that no excuse was shown for the neglect.</p> <p>4. New Tbial — Meritorious Defense — Affidavit, that the applicant is advised by his counsel that he has a meritorious defense, not stating any fact in support of this allegation, is not sufficient.</p> <p>A defense resting in the defendant’s own illegal conduct, e. g., the. action being for defendant’s failure to make certain improvements, according to their express covenant, in premises leased to them by the plaintiff, that the premises were leased for and occupied as a gambling house, with the plaintiff’s knowledge, will not be accepted as a meritorious defense.</p> <p>5. Maxims — In Pari Delicto Potior Est Oonditio Defendentis. Where, without disclosing the illegal character of the transaction out of which his cause of action arose, plaintiff has secured a judgment against defendants for their failure to make improvements, according to their express covenant, in premises leased for and occupied as a gambling house, relief will not be afforded to them against such judgment, either at law or in equity.</p>

<p>1. Tax Title — Void Deed. A treasurer’s deed omitting the recitation prescribed by statute that more than three years had elapsed from the date of the sale, and redemption has not been made, is void.</p> <p>So a deed upon a sale to the county, and an assignment of the certificate of purchase by the county clerk more than three years after its issuance.</p> <p>2. Limitation' — Action to Quiet Title. The short statute of limitations (Rev. Stat., sec. 5733) cannot be invoked as a defense to an action to quiet title.</p>

<p>The judgment not being claimed to be excessive was affirmed on the authority of Pueblo v. Bradley, ante.</p>

<p>The case ruled by City of Pueblo v. Bradley, ante.</p>

<p>Criminal Law — Bail—Who May Accept Recognizance. When an accused person has been committed to jail for want of bail a single justice-of the peace cannot afterwards accept his recognizance. The recognizance is void. Rupert v. People, 20 Colo. 424, followed.</p>

<p>Appeal from Phillips District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Tax Titles — Void Deed. A treasurer’s deed from which it appears that the land was struck off to the county on the first day on which it was offered is void.</p> <p>So a deed based upon a sale to the county and an assignment of the certificate by the county clerk more than three years after the date of the sale.</p> <p>2. Quieting Title — Plaintiff’s Possession. Where the plaintiff shows title, the defendant showing no title,'will not be heard to complain that neither plaintiff’s possession or the vacancy of the land are shown.</p>

<p>1. Quieting Title — Admission of Plaintiff’s Title, dispenses with, proof thereof.</p> <p>2. - Complaint Construed. A complaint seeking to quiet title to lands is not transformed into a bill to redeem from a tax .title by an averment that defendant has a lien upon the land for taxes which plaintiff is ready to discharge.</p> <p>3. Pleadings — Admissions In. Admission by reply that a -tax deed set up in the answer was issued and recorded, but denying its validity, does not relieve the defendant'of the necessity to produce such tax deed in evidence.</p> <p>4. Tax Titles — Deed Not Recorded, is no evidence of title.</p>

<p>1. Appeal Where No Appeal Lies — Appearance—Docketing in Error. Where appellee moving to dismiss an appeal — no appeal being allowed by law — makes a general appearance, the appeal will be dismissed and the cause docketed as pending upon writ of error.</p> <p>Filing a brief upon the merits is a general appearance.</p> <p>2. -Abstract. The court will not examine the errors assigned where the abstract is grossly imperfect.</p>

<p>Appeal from. Kit Carson District Court. Hon. J. W. Sheaeor, Judge.</p>

<p>1. Summons — Publication—Affidavit. The affidavit to secure publication of the summons in a civil action may be sworn before any officer authorized to administer an oath, in any county.</p> <p>If the affidavit fails to set forth all the matters required by the statute the court is without jurisdiction, and a judgment by default rendered upon such service is void.</p> <p>2. --Presumption as to Place of Administration of Oath. An affidavit appearing to have been sworn before an officer whose official character is limited to the county for which he was appointed, it will be presumed, the contrary not appearing, that the officer was acting within the territorial limit of his authority.</p> <p>The fact that it is entitled in a cause pending in another county, and that the jurat fails to show where it was sworn, does not take it out of the rule.</p> <p>3. Evidence — Judicial Notice. The court will take judicial notice of the location of the counties, cities, and towns of the state, and that particular places are in the same judicial district, and connected by railways.</p>

<p>Appeal from Larimer County Court. C. Y. Benson, Judge.</p>

<p>1. Summons — Service by Publication — Effect. Where, in the publication of a summons, all the provisions of the code have been complied with, the presumption that the publication came to the notice of the defendant is conclusive as against collateral attack. The jurisdiction of the court to determine the cause and give judgment is as complete as upon personal service.</p> <p>And under the code provision (Sec. 84) errors or defects not affecting the substantial rights of the' defendant are disregarded.</p> <p>2. Lis Pendens — Notice■—Judgment Relates to'. Where a notice, technically correct, of the institution of an action to quiet title is filed in the recorder’s office, the judgment in the cause relates back to the date of such filing.</p> <p>3. Names — Idem Sonans. Monson and Munson are idem sonans. Lands were patented to John F. Monson. in an action to quiet an adverse title the defendant was described in the complaint, summons and notice of suit pending as J. Fred Munson. It was in evidence that Monson’s middle name was Fred, and that his surname was commonly pronounced Munson. The adversary party gave no evidence that he had not received actual notice of the identity of the person named in the complaint, summons, and notice, with the person with whom he was negotiating for the land, or that he had examined the record, and was misled by the discrepancy in the names. A judgment by default upon such published service was approved, and tlie notice was held to affect'all those who, after its filing, dealt with Monson for the land. But the court adds that the doctrine of the opinion is not to be extended beyond the facts disclosed by the record.</p>

<p>Appeal.from Phillips District Court. Hon. H. P. Burke, Judge.</p> <p>On rehearing former opinion adhered to and judgment reversed.</p>

<p>1. Evidence — Fraud—Measure of Proof Required. Fraud is established only by clear and convincing evidence.</p> <p>The evidence examined and held insufficient to support the charges of fraud made in the complaint.</p> <p>2. Redemption Fbom Execution Sale — Who May Question, only the purchaser at the execution sale under which redemption is attempted.</p> <p>3. Estoppel — By Conduct. Execution, plaintiff having purchased certain real property under his execution, afterwards accepts a sum of money' paid by another judgment creditor, as and for a redemption from such execution sale. He is estopped to question the legality or effect of the redemption.</p> <p>4. Judgment Lien — In Favor of Several — Effect. A lien upon real property declared by decree in favor of several complainants cannot, by the act or agreement of a portion of such complainants, be displaced as to the others.</p> <p>5. Maxims oe Equity — Equity Folíolos the Law. Courts of equity recognize and enforce liens upon property according to the priorities which the law declares; but they may prevent the retaining of an advantage by one creditor, secured through misrepresentations or unconscientious practice clearly and satisfactorily shown.</p> <p>G. Appeals — Who May Assign Error. Only those who suffer prejudice by the alleged error.</p>

<p>1. Evidence — Sufflcency. Petitioners claiming to be entitled to a certain share of the waters of an irrigating ditch known as the Canon Ditch, produced evidence sufficient, prima facie, of their title to the volume of water claimed.</p> <p>Evidence was produced that at an early period the individual consumers from the ditch had incorporated a company; that in the proceedings for the adjudication of priorities to the use of water in that district the claim filed with the referee was in the name of that corporation, and signed and verified by its president, and that the ditch was designated, in the decree, by the name of that corporation. But there was no evidence of any conveyance to the corporation, and there was definite proof that the corporate organization was abandoned, and no stock ever issued as representing an interest in the ditch, or otherwise. Held not sufficient to dispel the prima facie case made by the petitioners.</p> <p>2. -Judicial Notice. It will be judicially noticed that fifty-six cubic feet of water per second of time is not necessary for the irrigation of less than three hundred acres of land.</p> <p>3. Water Rights — Adjudication of Priorities — Construction of Decree. Prom the statement of claim in the proceeding for the general adjudication of priorities in the water district it appeared that the land under petitioner’s ditch, and intended to be irrigated therefrom, was only two hundred and seventy-five acres.</p> <p>The decree assumed to award to them fifty-six cubic feet per second of time, a volume greatly in excess of what was necessary for the irrigation of such an area. Upon petitioner’s application to change the point of diversion of the whole fifty-six second feet, Held, that the case called for a construction of the original award to petitioner’s ditch, and that, as affecting the interest of appropriators below them, it gave the owners of petitioner’s ditch, only water sufficient to irrigate three hundred acres of land.</p> <p>4. Water Rights — Change of Point of Diversion. Petitioners showed apparent title by the general decree for the district, adjudicating the priorities to the use of water for irrigation, to fifty-six second feet. They applied for leave to change the point of diversion of this volume of water to another ditch much higher up, of greater capacity and length than that in which the water had previously been carried, and to apply the same to a much larger area of lands than that ever previously irrigated. No part of the water thus diverted would return to the stream above the headgates of the appropriators below them, who were 'opposing their application. It appeared that the petitioners and their predecessors in title had never used, in the irrigation of their lands, more than one-tenth of the volume adjudicated to their ditch. All the residue passed down the stream to consumers below them. Held, that only as to the volume of water necessary to properly irrigate the area of lands which had previously been irrigated from petitioner’s ditch should petitioners be allowed the change.</p> <p>5. - Change of Point of Diversion — Rights of Other Appropriators to he Protected. An appropriator is not to be allowed to change the point of diversion of^the water to which he is entitled in such way as to injure other appropriators; and a decree which is susceptible of a construction which will accomplish such result, under any view of the case, should be so modified as to make it clear that this is not its purpose or effect.</p> <p>The other appropriators, so possibly affected to their injury, should not needlessly be left to seek relief- in another proceeding; but their rights should be settled and made clear while all parties are before the court.</p> <p>6. Appeal — Judgment. Where necessary for the protection of any of the parties to the litigation, the court below may be directed to hear additional testimony.</p>

<p>1. Deed oe Teust — Trustee’s Deed — Recitations. A trustee’s deed of lands, ’executed pursuant to a power of sale in the deed of trust, need not recite a request by the holder of the indebtedness, to the trustee, to execute the power, unless such request is required by the deed of trust, as a condition precedent.</p> <p>2. Tax Titees — Void Deed. A treasurer’s deed which shows upon its face that it is founded upon a sale to the county, and an assignment of the certificate by the county clerk, more than three years after the date of the sale, is void.</p> <p>So a deed, based upon a sale to the county, the recitals of which fail to show upon what days the land was offered. The county can become the purchaser only when, after the land has first been offered, it is continuously offered from day to day, until the sale is concluded.</p> <p>And the deed must show by its recitals that every step prescribed by the statute to divest the owner’s title was regularly taken.</p> <p>So a deed not acknowledged is void.</p> <p>3. •-■ Amended Deed — Construction. An.amended tax deed, offered in connection with the original, will be construed therewith. When by the first deed it appears that a certificate of purchase issued to the county, this will be assumed to be' the fact as to the amended deed, where nothing appears to the contrary therein.</p> <p>4. -Deed Construed. A treasurer’s deed recited a tax sale begun on a certain day, and that “the treasurer having passed said real property from time to time until the last day of the sale” * * *, bid off the lands in the name of the county. Held, that it was not made to appear that the first and last days of the sale were not one and the same.</p> <p>5. -Acknowledgment — Construed. A certificate of the clerk of the county court at the foot of a tax deed, set forth that “personally appeared the above named J. W. Cloyd, treasurer of said county, personally known to me to be the treasurer of said county, at the date of the execution of the above conveyance, and to be the identical person who executed the above conveyance. Given under my hand, etc.” Held not to show an acknowledgment of the deed.</p> <p>6. - Void Deed to Be Canceled. Under See. 5733, Revised Stat. 1908, it is the duty of the court, where, in an action of ejectment, a tax deed is relied upon by the defense, and is held void, to cancel it; and this, whether the deed be admitted or excluded. The document does not, by the exclusion of it as a piece of evidence, pass out of the jurisdiction of the court.</p> <p>But a tax deed conveying several tracts is not to be cancelled as to other lands than those demanded in the action.</p> <p>7. Statute oe Limitations — Must Be Pleaded. It is not available under the general denial.</p> <p>8. Appeals — Judgment. The judgment of the court below cancelled and declared utterly void a tax deed which assumed to convey several tracts of land, some of which were not demanded or in controversy in the action. Held that, inasmuch as though without legal effect as to these latter lands, it might occasion embarrassment to the holder of the tax title thereto, it should be so modified as to limit its effect to the lands described in the complaint.</p>

<p>Appeal from Yuma District Court. How. H. P. Btjrke, Judge.</p>

<p>1. Tax Titles — Void Deed. A tax deed from which it appears that the land was struck off to the county on the first day of the sale is void upon' its face.</p> <p>2. Limitation — Continuous Possession — Evidence. Where payment of taxes under color of title is relied upon to defeat the original title the proof must he clear and satisfactory.</p> <p>In an action instituted in 1907 the defendant testified that he “moved some stuff on the land in 1900, and moved with his family in the spring of 1901.” He made no statement that he had resided upon the land continuously from either date. The testimony was held insufficient to support his plea of the statute.</p> <p>3. - Color of Title — Payment of Taxes. Taxes paid prior to the recording of a tax deed are not to be reckoned part of the seven years payment required by the statute.</p> <p>A tax receipt issued to Weisshess is not to be accepted to prove payment by Weishaar, without other evidence that in fact the payment was made by Weishaar.</p> <p>A tax receipt describing no lands is not admissible.</p> <p>Nor tax receipts dated after the institution of an action by the paramount owner.</p> <p>4. Appeals — Judgment. Where in ejectment the defendant wholly fails, a judgment in his favor will be reversed; but no new trial will be awarded. The court below will be directed to vacate the judgment and give judgment for the plaintiff, but upon condition that within a reasonable time, to be fixed by the court, he shall pay into court for the use of defendant the taxes paid by defendant, with the statutory interest and penalties.</p>

<p>1. Municipal Cobpobations — Power to Abate Nuisances. The statute (Rev. Stat., sec. 6525, cl. 45) does not in terms provide for the abatement of nuisances and is not self executing for this purpose. It requires an ordinance to make it effective.</p> <p>2. - Ordinance — Effect. An ordinance prohibiting the sale of intoxicating liquors within the limits of the city, and declaring that “a place kept for such sale, and the business, and the liquors kept” is a nuisance “to be abated as any other nuisance” is conclusive in its effect. The provision that the nuisance shall be abated “as any other nuisance” can be held to mean only as any other nuisance may lawfully be abated.</p> <p>As to nuisances which may at common law be summarily abated, e. g., the obstruction of the public highway, it may be that the municipal authorities may proceed without the aid or adjudication of any court. Otherwise, in the absence of statute, as to other nuisances, or where the existence of the nuisance depends upon proof that the law has been violated.</p> <p>The city authorities are not empowered to enter a place where intoxicating liquors are sold, and seize upon and destroy such liquors. It is their duty to resort to the courts for the punishment of the offending parties; and the presumption must be indulged that such resort will be effective.</p> <p>3. Intoxicating Liquoes — Not per se a Nuisance, but property, for the unlawful conversion or destruction of which damages may be awarded ■ in a civil action.</p> <p>4. Maxims — Ex nirpi Causa Non Oritur Actio. Whether an action arises or can be maintained ex turpi causa is to be determined on demurrer by the consideration whether plaintiff must depend upon and prove, to make out his case, a transaction malum in, se, or prohibited by law.</p> <p>One suing for the destruction of a stock of intoxicating'liquors, alleging nothing but' his title and possession, and the trespass, is not prima facie within the maxim. His cause of action depends not upon any illegal conduct on his own part, but upon the illegal acts of the defendant.</p> <p>5. -In Pari Delicto. The mere fact that the illegal acts of defendant were provoked by. other illegal acts of plaintiff’s, or his predecessors in title, does not place them in pari delicto.</p> <p>The arrest with unnecessary force of one found in possession of a stock of intoxicating liquors, the destruction of the liquors with other legitimate merchandise, all in a disorderly and tumultuous manner, in disturbance of the peace of the Sabbath day, is not justified by an ordinance prohibiting the sale or keeping for sale, of such liquors, and declaring that the sale or keeping for sale of such liquors is a nuisance; nor by a vote or resolution of the city council directing the city marshal to seize and bring before the police magistrate all such liquors, with the persons of those found upon the premises.</p> <p>6. Appeal — Effect as a Supersedeas. Judgment in quo warranto dissolving a corporation; pending a perfected appeal therefrom the corporation may effectually dispose -of its property.</p> <p>7. Replevin — Plaintiff’s Right Pending the- Action, is similar to that of a bailee. His possession is lawful. He may maintain an action for the recovery of the goods, or, if destroyed, for their value.</p> <p>The measure of his damages in such action is the value of the goods.</p> <p>8. Appeals — Harmless Error. Where the plaintiff’s case is established by evidence which is not contradicted, remarks of the trial judge having a natural tendency to prejudice' the jury against the defendant will not be regarded as prejudicial error.</p> <p>9. Damage. — Evidence in Mitigation. Semble that in an action for the destruction - of a stock of intoxicating liquors the defendant may show that they were kept for an illegal purpose, and could not lawfully be sold.</p>

<p>1. Appeals — Findings Upon Conflicting Testimony, are conclusive in the court of review.</p> <p>2. Trials — Without Jury — Functions of the Court. Where the cause is tried without a jury the trial .judge passes upon not only the credibility of the witnesses, and the weight of the evidence, hut upon what inferences are to he drawn from the fasts and circumstances in evidence.</p> <p>3. New Trial — Newly Discovered Evidence. A new trial is not to he awarded for the discovery of evidence merely cumulative, or limited to impeachment.</p>

<p>Appeal from Boulder District Court. Hon. Harry P. Gamble, Judge.</p>

<p>1. Trial — Pleading and Evidence — Variance. Plaintiff complained of an injury received while she was a passenger on defendant’s tramway, which she attributed to defendant’s negligence, alleging injuries to diverse parts and members of her person, “by reason whereof she was permanently injured in her back, spine, and nervous system.” Held, that professional evidence that the condition of the spine at the time of the trial was the result of the injuries received upon the occasion complained of, and that the injury was permanent, was not variant from these allegations.</p> <p>2. Evidence — Cross-Examination of Physician as to Medical Boolcs. A physician who bases an opinion upon medical works which he names may be cross-examined thereupon to show his error and contradict his testimony.</p> <p>Not so when his opinion is formed independently .of such books, and he testifies that he has never read the book named.</p> <p>And it seems to be the general rule that medical authorities are not to be used to contradict a medical expert.</p> <p>3. - Competency — Medical Boohs. By the weight of authority medical books are not admissible in actions for personal injuries, as independent proof of the opinions expressed therein.</p> <p>The rule supported by reasons additional to those set down in the authorities.</p> <p>4. Instructions — Falsifying the Evidence. An instruction which declares, contrary to the fact, that there is no evidence to sustain a particular contention, is properly refused.</p> <p>5. -Refused — But Given in Other Words. The refusal of an instruction substantially given in other words is not error.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Deed oe Teüst — Recitations of Trustee’s Deed, showing a sale under a power contained in a deed of trust are prima facie evidence of the facts recited, even though the deed- of trust does not in terms so provide.</p> <p>2. Tax Title. — Void Deed. A treasurer’s deed showing that several non-contiguous tracts were sold for a gross sum, or that the land was sold to the county on the day it was first offered, is void.</p> <p>3. Limitations — Color of Title — Payment of Taxes. A tax deed is not color of title until recorded. If the paramount owner brings his action to recover the land before the lapse of seven years next succeeding such record, the seven years statute of limitations (Rev. Stat., sec. 4090) has no place.</p> <p>4. -Pleading. The statute of limitations must be pleaded.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, Judge.</p>

<p>Statute oi? Frauds — Goods Sold. Goods are sold, delivered, accepted, and part payment made by the 'buyer. The statute of frauds affords no defense to the seller’s action for the residue of the agreed price.</p>

<p>Appeal from Otero District Court. Hon. O. S. Essex, Judge.</p>

<p>1. Parties — Substitution. Where an action is instituted by a father for personal injuries to an infant daughtei', the child, upon arriving at majority, may be substituted, and permitted to prosecute the action in her own name.</p> <p>2. Contributory Negligence — Of Driver Not Imputed to Passenger. The doctrine of Denver Co. v. Armstrong, 21 Col. Ap. 640, followed.</p>

<p>Appeal from Prowers District Court. Hon. Henry Hunter, Judge.</p>

<p>Appeal from-Mesa District Court. Hon. Spbigg Shaokleeobd, Judge.</p> <p>Motion to have cause re-entered as pending on writ of error, denied.</p>

<p>Appeal from Washington District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Yuma District Court. How. H. P. Burke, . Judge.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Tax Titles — Void Deed. A treasurer’s deed which shows upon its face that it is based upon a sale of the land to the county made on the first day it was offered is void.</p> <p>So, a deed based upon a sale to the county, and an assignment of the certificate by the county clerk more than three years after its date</p> <p>2. Limitations- — Color of Title. A tax deed. Which has not been of record for seven years preceding an action by the original owner for the recovery of the lands does not support a plea of the seven years statute of limitations.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, Judge.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, . Judge.</p>

<p>Appeal from Yuma District Court. Hon. H. P. Burke, Judge.</p>

<p>Error to El Paso District Court. Hon. J. W. Sheafor, Judge.</p>

<p>1. Statute oe Limitations — Extending Limitation. The- statute of limitations affects the remedy only, and the statutory period may be extended, even as to causes of action already existing. And such statute will be construed to apply to existing causes of action, not yet barred, without express words. ''</p> <p>2. Statutes — Construed. The limitation act of 1901 (Rev. Stat., Sec. 3609) held to apply to judgments recovered in 1895.</p> <p>Whether the act of April 18, A. D. 1891 (Laws 1891, 246), or the act of 1901, above cited, applies to judgments of justices of tfie peace, not decided.</p> <p>3. Appeals — Rehearing—Petitioner Not to Change Ground. One applying for a rehearing will not be heard to change from the ground assumed both in the court below, and upon the argument in this court.</p>

<p>1. Master and Servant — Duty of Master as to Place of Work. It is the duty of the master to use diligence to keep his premises in reasonably safe condition, so that the servant may not be exposed to unnecessary risks; and this duty extends to the provision of reasonably safe ways for passing to and from the place of labor.</p> <p>2. - Servant’s 'Assumption of Bisk. An employee assumes all the risks naturally and reasonably incident to the service in which he engages, including those arising from, defects in the thing about which he is employed, which are open and obvious and would have been known to him if he had exercised ordinary care.</p> <p>3. ——■ —— Presumptions. Action for negligence resulting in the death of the husband of plaintiff. Deceased had been employed at the place where he came to his death for seven, months, and was a man of more than ordinary intelligence. All the conditions complained of were permanent and obvious, and had subsisted during all his employment. Held a necessary presumption that deceased knew of these conditions, and appreciated the dangers to which he was thereby exposed.</p> <p>4. - Contributory Negligence of Servant. Deceased was killed while attempting to cross a railway track where a car was continually passing and re-passing. There was a definite and certain passage-way provided, where employees might cross the track. The car was standing at a furnace elevator where it had been discharging its contents and was liable to move at any moment in either direction. It was broad day, and the deceased knew all these conditions. Nevertheless, of his own motion, without any necessity, and without the command of any superior, he attempted' to cross the track at an unusual place, where he could not be seen by the person operating the ear. Held there was no room for substantial doubt that the deceased came to his death by his own negligence.</p> <p>5. Appeal — Judgment. The facts being undisputed and the court being of the confident opinion that no verdict against defendant could be sustained, a judgment for plaintiff was reversed and the court below was directed to dismiss the action.</p>

<p>1. Appeal — Final Judgment — What Is. Parties interested in the estate of a decedent presented in the county court a petition under sec. 7253 of the Revised Statutes, against the administrator and one M., setting forth that a certain promissory note executed hy the administrator, secured hy a recorded deed of trust, and in possession of H., was the property of 'the estate, and. requiring the administrator 'to show cause why he should 'not inventory the same. H. produced the papers and deposited them with the court. The administrator answered denying that the note was any part of the assets of ,th.e estate, and averring that it was given in evidence of a contemplated loan hy the decedent, never consummated. The answer was in the individual capacity and not as administrator. Judgment was given in the county court, “that said petition he sustained,” and requiring the administrator to “file an additional inventory” including the promissory note. Held, that though outside the contemplation of the statute, and heyond the jurisdiction of the court, the judgment was an adjudication of the title, and a final judgment, from which an appeal lay to the district court.</p> <p>Cunningham, P. J., dissented.</p> <p>2. Statute — Construed. The purpose of sec. 7253 of the Revised Statutes is to aid in the discovery of property pertaining to the estate of deceased persons, and incidentally to perpetuate testimony. It has no other purpose. Where, by proceedings under the statute, a certain secured promissory note of the administrator asserted to pertain to the estate had been deposited with the court, it was held that the purpose of the statute was fulfilled; that the administrator should then have been discharged, and some proper person appointed to take charge of the note and securities and institute an action against the administrator to determine the validity thereof, the ownership, and the amount due thereon.</p>

<p>Appeal from Larimer ,District Court. Hon. Harry P. Gamble, Judge.</p>

<p>Error to Ban Miguel District Court. Hon. Sprigg Shackleford, Judge.</p>

<p>1. Motion to Remand — Diligence Required. One proposing to move under sec. 6 of the act creating this court (Laws 1911, c. 107) for the remand to the supreme court of a cause which has been thence transferred to this court, must use reasonable diligence. On October 14th this cause and another involving the same questions were set for hearing on the 11th of the following November, with the tacit understanding between court and counsel that the two causes should be heard at the same time. On that day the other cause was argued and submitted, but to suit the convenience of counsel this cause was continued to November 21st. On the day last named the motion of plaintiffs in error to remand the cause was first brought to the court’s attention, after the cause was called for oral argument upon the merits. In view of the above delays the motion was denied.</p> <p>2. Pleading — Waiver—Answer After Demurrer Overruled, and proceeding for trial on' the merits, waives the questions presented by the demurrer. ' '</p> <p>The rule applies where the ground of demurrer is for' want of capacity to sue, under sec. 50, Mills’ Code (Rev. Code, sec. 56).</p> <p>3. Paeties — Capacity to Sue. A citizen and tax-payer of a municipality may bring an action for his own behalf and that of other citizens similarly situated, to review and set aside an election under the Local Option statute, on the ground of fraud of the election officers, and the reception of ballots of those not electors, in number sufficient to. change the result.</p> <p>4. Local Option Act — Frauds in an Flection. Fraud in an election held under Local Option act, in manipulating the ballots and receiving the ballots of non-electors, in numbers sufficient to change the result, affords an action to a citizen and tax-payer to vacate the election and all licenses granted pursuant thereto.</p>

<p>Error io Jefferson District Court. Hon. Flor Ashbatjgh, Judge.</p>

<p>1. Judgment — Collateral Attack. Assault in an ejectment suit upon a sheriff’s deed executed pursuant to decree of mortgage foreclosure, by an attempt to show that by reason of defect in the service of process no jurisdiction of the person of the defendant in the foreclosure proceeding was acquired, is a collateral attack.</p> <p>2. —,— Recitals of Record — Presumption. The record of a decree of mortgage foreclosure recited due and regular service of summons. The manner of service was not stated. Two writs of summons were produced, each bearing the return of non inventus, as to the mortgagors. The last was returned July 21, A. D. 1893. The decree was entered November 3, A. D. 1893. There was no showing thai personal service was not made after July 21, nor that, on proper affidavit and order, the summons had not been duly published. Held, that in support of the judgment it would be presumed that service, either personal or constructive, had been duly made.</p> <p>3. Parties — Defendant—Necessary Parties. Mortgagor who has parted with his title is not a necessary party, to a bill to foreclose the mortgage.</p> <p>4. Mortgage — Foreclosure—Personal Judgment, against" mortgagor is not necessary.</p> <p>5. Appeals — ’What May Be Assigned for Error. One not claiming under the mortgagor may not assign for error a personal judgment against such mortgagor rendered upon defective service.</p> <p>6. Tax Titles — Void Deed. A deed which upon its face appears to be founded upon a sale of several non-contiguous tracts, not showing that tliey were sold separately, nor the amount for which each tract was sold, but only, the gross amount produced by the sale of the whole, is void.</p>

<p>Appeal from Archuleta District Court. Hon. Charles A. Pike, Judge.</p>

<p>Appeal from Routt District Court. • Hon. John T. Shumate, Judge.</p>

<p>Appeal from Arapahoe District Court. Hon. Charles McCall, Judge.</p>

<p>Appeal from Jefferson District Court. Hon. Charles McCall, Judge.</p>

<p>1. Appeal — Adjustment by Parties — Discontinuance. An appeal will not be dismissed on suggestion of a Settlement of the controversy by the parties, unless it appears that the adjustment included all the parties, and all the matters in issue.</p> <p>2. Corporation — Dealing With Directors. The Board of Directors of a solvent corporation may, acting in good faith, borrow money from one of their own number and evidence the loan by a note of the corporation, and secure the same by mortgage of the corporate properties.</p> <p>If -the' vote of the director making the loan is necessary to constitute a quorum and a majority voting to authorize the loan, the transaction is voidable at the instance of the corporation, or its stockholders; and a court of equity will set it aside, regardless of the question of good faith. But the transaction is valid in law, and a recovery may be had thereon, so long as no objection is made, and no action taken assailing its validity.</p> <p>And if the money was received by, and used for the benefit of the corporation, the director making the loan may recover it.</p> <p>And the corporation or a stockholder assailing the transaction in equity must do equity by an offer to return the money.</p> <p>3. Payment' — What Amounts To. A corporation borrows money from a firm, two of the members of which are directors of the corporation. Collaterals are pledged to secure the loan. The collateral is sold for an amount sufficient to discharge the loan, but the lenders permit the proceeds to be used by the corporation for another purpose, and it is so used. There being no fraud or bad faith in the transaction, it does not amount to a payment.</p> <p>4. Pleadings — Construed. Action by a stockholder to vacate a judgment recovered against the corporation, and set aside a sale of the corporate property had thereunder. The complaint alleged that collaterals had been pledged to secure the note upon which the judgment was recovered; that these collaterals had been sold for an amount sufficient to discharge the note, but through fraud the money had been applied to a different purpose. The answer alleged that the proceeds of the collateral had been used by the corporation for its benefit. Reply, that plaintiff has not sufficient knowledge, etc., upon which to base a relief. Held, a withdrawal of the charge of fraud made in the complaint.</p> <p>5. Fraud — Conspiracy—Evidence. A corporation had executed a note to a firm, two of the members of which were directors of the corporation, and as such had voted to authorize the loan. On the maturity of the note one of the members of the firm wrote to the corporation demanding payment, and threatening a suit if the note were not paid. Another member of the same firm replied for the corporation, refusing payment. Held not sufficient, without more, to establish either fraud or conspiracy.</p> <p>6. -Ratification. The properties of a corporation had been sold under a judgment recovered against it by a firm, two of the members of which were directors of the corporation, and had voted as such to authorize the execution of the note upon which the judgment was recovered. A new board of directors had been elected, meantime, not including any member of the partnership. This new hoard recognized the validity of the judgment, and sent out notices to the stockholders requesting contributions to discharge it. Held a ratification sufficient to validate the voidable character of the original transaction.</p> <p>7. -How to Be Alleged. Whoever would 'rely upon fraud to vacate a completed transaction must allege affirmatively and distinctively the facts upon which the conclusion of fraud is based. No one should be required to respond to the charge of fraud, made, not as a fact, but as a conclusion drawn from irresponsible hearsay.</p>

<p>1. Summons — Publication—Affidavit. An affidavit to secure publication of the summons in a civil action, stating, not that the postoffice address of the defendant, but his residence, is unknown, is not a compliance with the statute (Rev. Code, sec. 45). A judgment by default upon such defective service is void.</p> <p>2. Tax Titles — Void Deed. A treasurer’s deed showing that non-contiguous tracts were sold for a gross sum is void.</p> <p>3. - Tax Sale — Notice. The treasurer’s affidavit stated that for four weeks continuously prior to the sale, “which occurred on,” etc., be “kept posted near the front door of my office a complete printed list of all property offered for sale on that aforesaid day.” There was no statement of what the notice contained as to the date and place of sale. Held, that the notice as described in the affidavit was not a compliance with the statute (Mills’ Stat., secs. 3882, 3883, 3885;. Rev. Stat., secs. 5707, 5708); nor was the affidavit a compliance with the statute as to the place of posting.</p> <p>4. -■-Affidavit. An affidavit of the treasurer, under the sections aforesaid, that he posted a “complete printed list,” containing nothing as to posting a notice, is not sufficient.*</p>

<p>Error to La Plata District Court. How. Charles A. Pike, Judge.</p>

<p>Error to the Denver District Court. Hon. George W. Allen, Judge.</p>

<p>1. Appeals — Finding on Conflicting Evidence. The rule that findings of fact on conflicting evidence will not be reviewed applies in an appeal from a decree authorizing a change in the point of diversion of water.</p> <p>2. Water Rights — Junior Appropriator, has a vested right in the conditions existing upon the stream at the time of and subsequent to his appropriation.</p> <p>3. --- Change of Point of Diversion. Where the right of appropriator of water to change the point of diversion exists, it is an incident of the water right itself; but' it is conditional, and can be exercised only when no injury will be occasioned to other vested rights by the change. And it can be exercised only upon leave granted in judicial proceedings instituted for the purpose.</p> <p>4. -Burden of Proof. One who petitions for leave to change the point of diversion of the water to which he is entitled has the burden of proving that the change will not injuriously affect the vested rights of others.</p> <p>5. —— Substantial Injury to Junior Appropriators. To defeat an application for leave to change the point of diversion of waters it is only necessary that substantial injury to other appropriators be shown.</p> <p>It appearing that petitioners’ ditches and all others between the two points of diversion, had for a long time been supplied, in a large measure, by seepage waters returning to the stream, held that the change proposed to a point above the intake of all these ditches must necessarily injure the protestants.</p> <p>6. —■—. Abandonment by Petitioners of Their Decreed Rights, is not admissible to oppose their petition for leave to change the point of diversion of such waters. Wadsworth v. Brown, 39 Colo., 57, and Lower Latham Go. v. Bijou Company, 41 Colo., 213, followed with reluctance and regret. Legislation to correct the evils engendered by those decisions recommended.</p> <p>7. -Evidence. The size and capacity of the various ditches which may be affected by the proposed change, the volume of water applied to beneficial uses and the time of its use, the place where, and the acreage upon which it was used, the periods of non-user between successive irrigations, excessive user, and the place and the conditions of the use contemplated, after the proposed change is effected, are all admissible as bearing on the effect that may follow the change, notwithstanding they also tend to prove the immaterial issue of abandonment.</p> <p>8. - Character of. Proceeding. The statutes (Rev. átat.,' sec. 3226-3231, 3289), in themselves, and by reference to the statutes regulating irrigation, provide a complete code of procedure for changing the point of diversion. The proceeding is not an ordinary civil action, but a proceeding sui generis, to which the rules governing ordinary civil actions are not always applicable. The proceeding has been likened both to an action in rem, and an action to quiet title.</p> <p>9. -Statutes Sustained. The act of 1903 (Laws 1903, c. 108, Rev. Stat., secs. 3226-3231) and the act of 1905 (Laws 1905, c. 112, Rev. Stat., sec. 3289) sustained as a valid exercise of legislative power.</p> <p>10. -Notice of Hearing — Service. The notice of hearing must be served in the manner prescribed for the service of summons in civil actions, not less than fifteen days prior to the day named for the hearing; and the court may, upon cause shown, require publication and posting of the notice as in original adjudications, unless the petitioner shall elect to proceed undér the statutes in force prior to the act of 1905; and in that case the service must in all respects comply with the provisions of such prior statutes. Certain designated persons whose rights may be affected by the proposed change are indispensable parties, and are entitled to personal service under the showing made. Published notice to them is not sufficient.*</p> <p>11. -- Appearance Vy a Corporation, does not affect the interest of those entitled in severalty to waters conveyed by the ditch of such corporation, and such appearance does not dispense with the service of notice upon those so interested.</p> <p>12. .- The State a Party in Interest. The court must enforce the statute, and sua sponte require all persons who may be affected by the change to be notified.</p>