Volume 35 — Colorado Reports

Samuel L. Carpenter, Jiodge. In 1889 plaintiff’s testator brought an action in the district court of Arapahoe county against The Bank of Leadville, a domestic corporation doing a banking business in the city of Leadville, to recover the ampunt of various deposits made in and wrongfully withheld by the bank.

Charles C. Holbrook, Judge. Action, by appellant (as. plaintiff), owner of the Jessie Mac and Keystone lode mining claims, in support of an adverse against the application of appellee (as defendant) for patent to the Cripple Creek lode mining claim. Judgment for defendant. Plaintiff appeals.

<p>1. Water Rights — Pleading—Contracts.</p> <p>A complaint which, alleged that defendant water company was the owner and in control of a ditch in which were three classes of water rights; that plaintiff was the owner of a third class right, which entitled him to the use of water only after the first and second class' rights were satisfied; that the stock of the company was issued to the holders of second class rights under contracts now in force, which provide that each right should only be used on 'specified lands for irrigation; that defendant F. is the owner of a water right under said contract and that said defendant F. with the consent of the defendant company was taking water from the ditch to irrigate lands other than those described in his contract as well as those described, and that he was diverting more water than was necessary to irrigate the land described in his contract and was depriving plaintiff of water to which he was entitled, stated facts sufficient to entitle plaintiff to relief, and it was error to sustain a demurrer thereto.</p> <p>2. Pleading — Demurrer.</p> <p>Objection's that do not appear upon the face of a complaint cannot he raised by demurrer.</p>

Booth M. Malone, Judge. Action by appellee (as plaintiff) in Ms capacity as administrator of the estate o£ William H. Emanuel, deceased, to recover from the defendant on an accident insurance policy. From a judgment for plaintiff the defendant appeals.

Jesse G. Northcutt, ,Judge. James M. Rice made his last will and testament, ■wherein, after providing for the payment of his funeral expenses and debts, he devised to each of his six nephews and to his niece Mary the sum of $500. The will then provides that, after deducting the above named bequests, the balance of all his property shall be divided into- four equal shares, for the benefit of his three sisters, Joanna E. Wallace, Sarah B. French and Eleanor I).

<p>Burglary — Information—Evidence—Variance.</p> <p>An information charging burglary by breaking and entering the banking house of a bank cannot be sustained by evidence which shows that the room used for banking purposes was not entered, but that the breaking and entry was into another room of the same building occupied as a law office, although the entire building was known as the bank building and was owned and controlled by the bank.</p>

<p>1. Trespass — Pleading—Evidence—Variance.</p> <p>In an action for damages for trespass, where plaintiff in his complaint based his right of action solely upon the ground of ownership and possession of the land upon which the trespass was alleged to have been committed, evidence was not admissible of the assignment to plaintiff by a lessee of the premises of all of said lessee’s interest in the damages caused by the trespass.</p> <p>2. Trespass — Animals—Liability of Owner — Bailee.</p> <p>Where the owner of cattle contracted with a tenant in possession of a ranch to pasture his cattle and said, tenant turned the cattle upon land of the ranch, the owner of the cattle, was not liable to the owner of the ranch for trespass of the cattle upon his land, but the liability, if any, was alone that of the tenant in possession of the .cattle as bailee.</p>

<p>1. Fire Insurance — Negligence—Subrogation.</p> <p>Where property covered by fire insurance was destroyed by fire resulting from the negligence of a railroad company and the policy contained no express covenant requiring the insured to assign to the insurance company any claim he might have against any one whose negligence should cause loss the right of the insurance company to be subrogated to the rights of the insured in his claim against the railroad company would not accrue until the insurance company had made full payment of its obligation to the insured.</p> <p>2. Same.</p> <p>Where’property part only of which was covered by fire insurance was destroyed by fire through the negligence of a railroad "company and the insurance; policy contained no^ covenant requiring the insured to assign to the insurer any claim he might have against any one whose negligence might cause loss, the insured may settle with and release the railroad company as to damage not covered by insurance without affecting his remedy against the insurer, but if he recover from the railroad company for the whole loss he cannot afterwards sue the insurer.</p>

<p>Opinion Followed.</p> <p>This case is affirmed on the opinion in ‘ the case of The Farmers’ Alliance Mut. Fire Ins. Co. v. Vallie, ante, p. 72.</p>

<p>1. Appellate Practice — Parties—Objections in Trial Court.</p> <p>Objections to answers of parties defendant on the ground that the parties filing the answers had not complied with the statut.es or code in making themselves parties will not be considered on appeal where no such objections were made in the trial court.</p> <p>2. Appellate Practice — Findings—Presumptions.</p> <p>In the absence of specific findings of fact to the contrary the appellate court will presume that the trial court intended to find those facts which are responsive to the issues made by the pleadings and essential to the judgment rendered.</p>

<p>Practice in Criminal Cases — Larceny as Bailee — Informations— Evidence — Several Offenses in One Count.</p> <p>In a prosecution for larceny as bailee where the information charged in one count the bailment of several articles and the larceny of all of said articles as of one act, and the evidence showed that the 'several articles were delivered to defendant at different times under distinct and separate bailments for different purposes and that as many separate and distinct conversions with intent to steal were committed by defendant, it was error to deny a motion to quash said information made at the close of the evidence for the prosecution when it appeared from the evidence that several offenses had been charged in one count.</p>

<p> Appeal from the District Court of Boulder County: </p> <p> Eon. James E. Garrigues, Judge. </p>

<p>Conveyances — Action to Set Aside — Fraud—Appellate Practice.</p> <p>A judgment of the trial court setting aside a deed as Raving been procured through fraud and undue influence will not be reversed where the findings of the trial court were made upon ’conflicting evidence and where there is sufficient evidence to support the findings.</p>

A. B. Ruby, Judge. Proceedings under the eminent domain act. The La Jara river is a natural stream situated in water district No. 21 of this state, of which Hot creek is a tributary. Peter Hansen, the petitioner and defendant in error here, is an appropriator of water direct from the river for irrigating his agricultural lands.

<p> Appeal from the District Court of Conejos County: </p> <p>Hon. Charles C. Holbrook, Judge.</p>

<p>1. Water Rights — Conveyances.</p> <p>Where a party owned a half interest in a certain irrigating ditch and the water decreed to such ditch, which he used to irrigate certain land, and also owned twenty inches of water decreed to another ditch which by consent of the parties interested he diverted through the former ditch and used in irrigating the same land, a deed conveying said land together with one-half interest in the 'ditch and “one-half interest in the water belonging to said ditch, or that is entitled to run through the same either by decree, appropriation or ownership,” conveyed the twenty inches of water.</p> <p>2. Water Rights — Quieting Title — Decree—Change of Place of Diversion.</p> <p>In an action to quiet title to a water right the court has not power to adjudge and decree a change in the point of diversion of such water right from one ditch to another although such change had been recognized and consented to by the immediate parties and the owners of the two ditches.</p>

<p>1. Tax Titles — Limitation—Grantees.</p> <p>An action by the owner to recover land sold for taxes cannot be maintained after the expiration of five years from the execution and delivery of the tax deed, and a grantee of the original owner acquired no greater rights than his grantor had.</p> <p>2. Tax Titles — Void Deed — Color of Title — Limitation.</p> <p>A void tax deed taken in good faith constitutes sufficient color of title under our statute of limitations.</p> <p>3. Same — Subsequent Tax Sale.</p> <p>Where vacant unoccupied land was sold for taxes and a tax deed regular on- its face was executed and delivered to the purchaser, and the purchaser failed to pay subsequent taxes and the land was again sold and the purchaser recorded his tax deed before the expiration of five years from the execution, of the first tax deed, and the original owner took no steps within five years after the execution of the first tax deed to recover the land, the holder of the first tax deed could after the expiration of five years from the execution and delivery of his deed and before the expiration of five years from, the execution and delivery of the second tax deed maintain an action against the 'second purchaser for -possession of the land and to cancel the second tax deed, although both tax deeds were void in law because of irregularities in the sales, and a quitclaim deed from4 the original owner to the second purchaser made after the commencement of the action was no defense.</p> <p>4. Tax Titles — Limitation,—Unoccupied Land — Constructive Possession — Subsequent Tax Déed.</p> <p>A tax deed to unoccupied land carries with it constructive possession and will start running the statute of limitations in favor of the purchaser, and ‘the recording of a subsequent tax deed to the same land within five years from the date- of the execution and delivery of the former tax deed Would not interrupt the running of the statute in favor of the first purchaser so as to prevent the perfection of his title as against the original owner, and after the perfection of his title and within five years from the execution and delivery of the second tax deed he could maintain an action against the second purchaser for possession and to cancel the second tax deed.</p>

<p>1. Appellate Practice — Parties—Joint Appeal.</p> <p>Where a judgment or decree is rendered against two or more persons either one may take an appeal from or sue out a writ of error to such judgment and may use the names of all of said parties, but where a joint appeal is prayed for it must be prosecuted by all the parties against whom the judgment was rendered.</p> <p>2. Same — Appeal Bond.</p> <p>Where a judgment was rendered against two parties and a joint appeal was prayed, but one of the parties executed an appeal bond for himself only and prosecuted the appeal in his own behalf without using the name of the other judgment debtor, such appeal will be dismissed and cannot be redocketed on error.</p>

<p> Appeal from the District Court of Boulder County: </p> <p> lion. Christian A. Bennett, Judge. </p>

<p>1. Appellate Practice — Praying Appeal — Time'—Dismissal—Re-docketing on Error.</p> <p>An appeal must be prayed for within five days after the judgment is rendered, and an appeal which' was not prayed for until after five days from the time the judgment was rendered will be dismissed, but where the court would have jurisdiction of such cause if brought up by writ of error the cause will be redocketed on error.</p> <p>2. Appellate Practice' — Pleading—Order Striking Out — Uncertainty.</p> <p>Where an order of court striking out portions of a pleading is so indefinite that it is not clear what portion of the pleading was eliminated, an assignment of error based on such order may for such uncertainty be disregarded.</p> <p>3. Foreign Corporations — Doing Business in State.</p> <p>A single act of business does not bring a foreign corporation within the meaning of the statute prohibiting such corporations from doing business in the state until they have complied with the provisions thereof, and in an action by a foreign building and loan .association to foreclose a mortgage a defense that plaintiff is a foreign corporation doing business in the state without having complied with the requirements of the statutes cannot be maintained where the transaction sued on is the only business shown to have been done in the state.</p>

<p>1. Appeal Bonds — Liability of Sureties.</p> <p>An appeal bond Is but an additional security of tbe judgment appealed from, and where the judgment creditor cannot enforce his judgment against the principal of the bond he cannot maintain an action on the appeal bond. A suspension of the enforcement of the judgment suspends action on the appeal bond, and a final reversal or extinguishment of the judgment is a bar to an action on the bond.</p> <p>2. Same.</p> <p>Where an appeal was taken from a judgment of the county court to the district court which was dismissed and a writ of error was sued out from the supreme court to the judgment of the county court which was made a supersedeas, action upon the appeal bond from the county to the district court was suspended pending the review of the judgment in the 'supreme court, and where said judgment was finally reversed action upon said appeal bond was barred and liability thereon was extinguished.</p>

<p>Trespass — Lawful Fence — Statutory Construction.</p> <p>Session Laws 1885, page 220, defining a lawful fence and providing that no person shall be allowed to recover damages for any injury to crops or grass or other vegetable products by trespassing animals unless the same at the time of the trespass are inclosed by a legal and sufficient fence, does not exempt from liability one who willfully drove and herded his sheep upon the land of another against the owner’s protest.</p>

<p>1. Bills and Notes — Bank Checks — -Acceptance—Liability of Drawee.</p> <p>Under the negotiable instrument law (Session Laws 1897, page 210) a bank check need not he presented for acceptance in order to render the parties thereto liable, but the drawee bank is not liable to an action upon such check unless and until it has been accepted or certified in writing by the drawee, and an action cannot he maintained- against the drawee based upon a parol promise to pay.</p> <p>2. Same.</p> <p>Where a check drawn upon one. bank was presented for payment at another bank and the bank to whom it was presented telephoned the drawee hank and asked if the check was good and was informed that it was, whereupon the check was paid, but before it was presented to the drawee for payment the drawer notified the drawee not to pay it, an action would not lie against the drawee hank in favor of the hank that paid the check in the absence of fraud or false information by the drawee hank.</p>

<p>Jurisdiction — Appeal—Divorce and Alimony.</p> <p>Where a nonresident defendant in a divorce suit appealed from a judgment for temporary alimony the appellate court acquired jurisdiction over appellant with respect to all matters which could he properly determined on his appeal, and a motion by appellee to require appellant to pay a reasonable sum each month for her support pendente lite and for attorney’s fees need not be personally served upon appellant, but service upon his counsel is sufficient to invest the court with authority to act on the motion.</p>

<p>Appellate Practice — Scandalous Briefs — Striking Out.</p> <p>The fact that a brief contains improper remarks with respect to the trial judge does not necessarily justify the' appellate court in striking such 'brief from the files.</p>

Calvin P. Butler, Judge. The purpose of this action, commenced by appellant as plaintiff in the court below, is to subject certain life insurance policies issued upon the lives of debtors of the plaintiff to' the payment of a judgment in favor of the plaintiff and against such debtors.

<p>1. Habeas Corpus — Practice in Supreme Court — Custody of Prisoner.</p> <p>Authority of the supreme court to issue the writ of habeas corpus is derived from the constitution and not from the statutes, and in the exercise of its original jurisdiction in issuing the writ its practice is governed by the rules of court and not by the statute. Upon the return of the writ the original custody terminates and the prisoner is then in the custody of the court, and, pending the hearing, the court tnay admit him to bail or remand him to the custody of the officer who had him in charge or make such order in the case as shall be deemed proper.</p> <p>2. Habeas Corpus — Temporary Bail — Jurisdiction.</p> <p>Upon an application for a writ of habeas corpus, where the return sets up that the prisoner is held by order of the governor as commander-in-chief of the militia and as a military necessity, that the prisoner is a leader of a band of lawless persons engaged in an insurrection and has aided and abetted such persons in defiance of the law and that peace cannot be speedily restored unless the prisoner remains in the custody of the military, and questions’ the jurisdiction of the court to discharge the prisoner, pending the hearing of the application and the determination of the question of jurisdiction, the prisoner should not be admitted to bail but should be left in the custody of the military.</p>

<p>1. Habeas Corpus — Pleading.</p> <p>The return to a writ of habeas corpus is a response to the writ itself and not an answer to the petition for the writ. The respondent should by his return seek to relieve himself of the imputation of having imprisoned petitioner without lawful authority by statements from which the legality of the imprison-, ment may be determined without regard to the statements of the petition for the writ. He is not required to deny any averment of the petition or make any issue thereon, but to answer the writ.</p> <p>2. Insurrection — Calling out Militia — Judgment of Governor not Controvertible.</p> <p>It is the duty of the governor to determine as a fact when such conditions exist in any locality as to constitute an insurrection and to demand that in the discharge of his duties as chief executive of the state he shall call out the 'militia to suppress it, and his determination of that fact cannot be controverted.</p> <p>3. Insurrection — Authority of Militia to Arrest and Detain Insurrectionist.</p> <p>Where the governor has declared an insurrection to exist in any locality of the state and has called out the militia to suppress such insurrection, the militia has authority to arrest and imprison any person participating in or aiding and abetting such insurrection and to detain such person in custody until the insurrection is suppressed.</p> <p>4. Same.</p> <p>Where the militia, being called out by the governor to suppress an insurrection in a county, arrested a person for participating in or aiding and abetting such insurrection, the military authorities were not required to turn over such arrested person to the civil authorities during the continuance of the insurrection, but could detain such prisoner in custody until the insurrection be suppressed, when he should be turned over to the civil authorities to be tried for such offense against the law as he may have committed.</p> <p>5. Same — Habeas Corpus.</p> <p>Where the militia engaged in suppressing an insurrection in a county, arrested and imprisoned a person for aiding and abetting such insurrection, his arrest was legal and his detention in custody of the military authorities until the insurrection is suppressed is also legal, and the courts will not interfere to release such person on writ of habeas corpus.</p>

Original Proceeding. Tbe purpose of this proceeding, instituted by the people of the state of Colorado on the relation of the attorney general and others, petitioners, is to obtain such relief- as will secure an honest election in certain precincts of the city and county of Denver, by preventing frauds which, it is said, certain of the respondents will commit at the general election to be held on the 8th day of November, 1904, and which, in a measure, will be consummated by…

<p>1. Contempt — Pending Cause — Petition for Rehearing.</p> <p>A cause pending before the supreme court upon a petition for rehearing is a pending cause within the meaning of the law of contempt.</p> <p>2. Supreme Court — Constitutional Court — Cdmmon-law Powers.</p> <p>The common law of England having been adopted by the territorial legislature of Colorado and being in force when the constitution was adopted creating the supreme court, the supreme court became and is a constitutional court with common-law powers, except where the constitution otherwise provides.</p> <p>3. Contempt — Criminal Contempt — Statutory and Common Law. Chapter 30, Mills’ Anp. Code, Revised Ed., page 597, entitled</p> <p>“Of contempts and their punishments,” contains substantially all the statutory law on contempts. Said code provisions are not applicable to criminal contempts, but proceedings for criminal contempts are governed by the common law.</p> <p>4. Contempts — Criminal Constructive Contempt. •</p> <p>The doctrine of criminal constructive contempt as to pending causes obtains in this jurisdiction as at common law.</p> <p>5. Same — Constitution.</p> <p>. The constitution ‘of Colorado does not change the status of contempts as to pending causes, but leaves it as it was at common law as to what constitutes contempts, the procedure and defenses.</p> <p>6. Contempts — Information—Verification.</p> <p>In a. proceeding for criminal constructive contempt based upon an information by the attorney general, it is not essential that the information be verified by affidavit.</p> <p>7. Contempts — Newspaper Publications.</p> <p>Articles published in a newspaper of general circulation charging the supreme court and certain of its judges with having been influenced by corrupt motives in their rulings theretofore made in pending causes, and that they would be so influenced in the final disposition of the same, constitute criminal constructive contempt.</p> <p>8. Contempts — Newspaper Publication — Truth of Publication — ■ Intent.</p> <p>In a proceeding for contempt against the publisher of a newspaper for publishing articles charging a court or the judges thereof with being influenced by corrupt motives in their actions with reference to a pending cause, the’ truth of the publication is no defense. Neither is it a defense to show that there was no intent to commit a contempt. Nor to show that the court was not affected by the contemptuous language.</p> <p>9. Contempts — Supreme Court — Power to Punish.</p> <p>The power to punish for criminal constructive contempt is inherent in the supreme court.</p>

Hon. Frank T. Johnson, Judge. The amended complaint, inter alia, avers: ‘ ‘ That The Denver Consolidated Tramway Company, predecessor of the defendant, was possessed of certain cars moved and propelled by means of an electric current conveyed thereto by wire stretched over the railway.

<p> Appeal from the District Court of Weld County. </p> <p> Son. Christian A. Bennett, Judge. </p>

<p>Appellate Practice — Judgments—Eminent Domain.</p> <p>In a proceeding to condemn a right of way for a railroad, where a judgment was entered upon the verdict of a jury from which an appeal was taken, and the judgment was subsequently vacated, there was no final judgment from which an appeal would lie.</p>

<p>1. Sales — Evidence—Book Accounts.</p> <p>Evidence that at the same time a hill of sale was made to a stock of goods and fixtures and immediately after its execution and as part of the same transaction and supported by the same consideration an assignment of the book accounts of the seller was made in writing upon the books, was sufficient to sustain the transfer of the book accounts as a part of the same transaction witnessed by the bill of sale.</p> <p>2. Appellate Practice — Evidence.</p> <p>Error committed in the admission of evidence is not prejudicial where, if all the evidence objected to were eliminated, there would remain sufficient evidence to sustain the finding thereon.</p> <p>3. Appellate Practice — Evidence.</p> <p>Where upon a retrial of a case it was stipulated that the evidence set forth in the bill of exceptions of a former record including depositions should be considered, and upon a subsequent appeal such evidence and depositions were not made a part of the record, questions raised as to the sufficiency of the evidence to sustain the findings will not be considered.</p>

<p>Deeds of Trust — Substitute Trustee — Certainty.</p> <p>Where the grantor and trustee in a deed of trust were described as residents of the same county, and the land conveyed was situated in the same county, and the authority to sell directed that the sale be made at the court-house door of the same county, a clause in the deed providing that in case of failure of the trustee to act, the “acting sheriff” should become successor in trust, was sufficiently certain to designate the acting sheriff of the county in which the land was situated and was. to be sold as the substitute trustee, although the instrument did not expressly describe the successor as the acting sheriff of such county. *</p>

<p>Taxes and Taxation — Cities and Towns — Public Improvements —Illegal Assessment — Recovery of Taxes Paid.</p> <p>Where an illegal assessment against property for the construction of a storm sewer was paid by the owner to prevent the property from being sold for the non-payment of such assessment which appeared to be a valid lien against the property, or to redeem the property from such sale, or was paid under protest and with notice to the treasurer that it was paid solely to redeem the property from the apparent lien and with the intention to recover the amount in the event the assessment should subsequently be declared illegal, after such assessment was adjudged illegal and set aside, the money so paid was held by the city for the use of the party so paying it, and could be recovered by an action against the city for that purpose.</p>

<p>1. Divorce — Evidence—Verdict—Appellate Practice.</p> <p>In. an action for divorce the verdict of the jury upon conflicting evidence is conclusive upon the appellate court where there was sufficient evidence to sustain the verdict.</p> <p>2. Divorce — Alimony.</p> <p>It is not the law that alimony must be given to the wife in all cases of divorce, but only in those cases where, from all the circumstances, it is equitable to do so.</p> <p>3. Same.</p> <p>Where a wife left her husband in a few months after their marriage and refused to return although importuned to do so, and in an action by her for divorce the jury found that her charges were unfounded and that her conduct entitled the husband to a divorce upon his cross-complaint, she was not entitled to a divorce.</p> <p>4. Same — Evidence—Practice.</p> <p>It was not error for the court to refuse to Jiear evidence upon an application for permanent alimony where all the evidence sought to be introduced upon the application had been heard by the court in the trial for divorce.</p>

<p>1. Negligence — Railroads—Animals—Evidence.</p> <p>In an action against a railroad company for the value of a horse alleged to have been killed by the negligence of defendant in running its train, where the uncontradicted evidence shows that the engineer in charge of the train discovered the animal on the track as soon as it was possible for him to see it and that he did everything that he could to stop thfe train and to scare the animal off the track and that it was impossible to have stopped the train in time to avoid running over the animal, a verdict and judgment for plaintiff will be reversed.</p> <p>2. Same.</p> <p>In an action against a railroad company for the value of a horse alleged to have been negligently killed by defendant’s train, the fact that the body of the animal was found by the side of the track at a point where the track could have been seen by the engineer in time to have stopped the train and several hundred yards distant from the point on the track where the engineer testified that it was struck, was not sufficient to warrant the inference by the jury that the animal was killed at the point where its body was found, against the positive testimony of the engineer that it was struck at a different point.</p> <p>3. Same.</p> <p>In an action against a railroad company for the value of an animal alleged to have been negligently killed by defendant’s train, where plaintiff called the engineer of the train as a witness he vouched for his credibility, and while he might be permitted to contradict his statements by other competent witnesses, he would not be permitted to impeach his credibility or otherwise discredit his testimony.</p>

<p>1. Statutes — Constitutional Law — Title—Board of County Commissioners.</p> <p>The provision of section 821 Mills’ Ann. Stats., which confers upon a taxpayer the right to maintain an action in the name of the board of county commissioners against members of the board for misappropriation of the county funds, is germane to and within the scope of the subject-matter as expressed in the title of the act which is, “An act to require county commissioners of the several counties- in this state to give bonds for the faithful discharge of the duties of their office, and to prescribe penalties for refusing to give the required bonds.”</p> <p>2. Pleading — Paragraphs—Separate Cause of Action.</p> <p>Where, a complaint, after alleging necessary matters of inducement in an action on official bonds, alleged two items as constituting breaches of the conditions of the bonds in two separate paragraphs, the two paragraphs should be considered, together with the introductory part of the complaint, as one cause of action, although the pleader had mistakenly designated the two paragraphs as first and second causes of action.</p> <p>3. Appellate Practice — Instructions—Evidence.</p> <p>Assignments of error based upon instructions given or refused will not be considered where the evidence was not preserved in the record by bill of exceptions.</p>

<p> Error to the County Court of El Paso County. </p> <p> Hon. James A. Orr, Judge. </p>

<p> Appeal from the District Court of El Paso County. </p> <p> Hon. Louis W. Cunningham, Judge. </p>

Hon. Theron Stevens, Judge. This is a special proceeding instituted in the district court of Mesa county under the irrigation district law of 1901, found in Session Laws of that year at page 198. Its object, in the language of the statute, is to obtain a judicial examination, approval and confirmation of the proceedings of the irrigation district and its board of directors 'providing for and authorizing the issue and sale of its bonds.

<p> Appeal from the District Cou/rt of Arapahoe County. </p> <p> Eon. John I. Mullins, Judge. </p>

<p> Appeal from the District Court of El Paso County. </p> <p>Hon. Louis W. Cunningham, Judge.</p>

<p> Error to the District Court of Pueblo County. </p> <p> Eon. John E. Voorhees, Judge. </p>

<p>1. Wills — Testamentary Capacity — Evidence.</p> <p>The testamentary capacity of a testator at the time of malting a will can only be ascertained by taking into consideration the direct proof and all collateral and relative facts and surrounding circumstances that tend to throw light upon the mental capacity of the testator at that time, and from which inferences might be drawn and presumptions raised as to whether or not he was mentally capable of making a will, and whether the disposition made of his property was consistent with his situation and in accordance with his privately expressed wishes and intentions, and such as he would naturally make under the circumstances, or adopt or acquiesce in, if not wholly deprived of consciousness.</p> <p>2. Same — Reading of Will — Presumption.</p> <p>Where a will was prepared at the testator’s express request, and left with him several hours before it was alleged to have been executed, and he 'signed it in the presence of attesting witnesses who were present at his request for that purpose, in the absence of any showing to the contrary it will be presumed that he had read it or that its contents had in some way been made known to him, and the onus of proving the contrary is thrown upon him who alleges it.</p> <p>-3. Same — Witnesses Signing before Testator.</p> <p>The fact that subscribing witnesses signed the will before the testator signed it does not invalidate the will.</p> <p>4. Same — Signature of Witnesses — Presumption.</p> <p>Witnesses attesting a will in the presence of the testator impliedly state that the testator is of sound mind and competent to make a will.</p> <p>5. Same — Probate—Testamentary Capacity — Adverse Testimony by Attesting Witness.</p> <p>Where, on application for the probate of a will, one of the attesting witnesses testifies that he believed the testator was not conscious of what he was doing when he made the will, such testimony does not impair the efficacy of the witness’ attestation.</p> <p>6. Same — Due Execution — Subscribing Witnesses — Contradictory Evidence.</p> <p>It is not incumbent upon the proponent to prove all the facts constituting due execution of a will by the concurring testimony of two subscribing witnesses, for, while both of these witnesses must be examined, the will may be established even in opposition to the testimony of both.</p> <p>7. Statutes — Adopted from Another State — Previous Construction.</p> <p>The rule is well settled that, in adopting the statute of another state, we adopt the construction given it by the courts of that state.</p> <p>8. Witnesses — Competency—When Adverse Party' is Executor or Administrator — Parties to Will Contest.</p> <p>Parties to a will contest are not competent witnesses to testify, under 2 Mills’ Ann. Stats., section 4816, providing that no party to any civil action or person directly interested in the event thereof shall testify when any adverse party sues or defends as executor or administrator.</p> <p>9. Witnesses — Privileged Communications — Attorneys and Physicians.</p> <p>The purpose of Mills’ Ann. Stats., section 4824, subdivisions 2 and 4, in regard to privileged communications made to an attorney or physician is to protect the client or patient, and, although, while the latter are living, the former could not testify to such matters without their consent, the rule is otherwise after their death in regard to matters in dispute arising in probate between devisees and heirs.</p> <p>10. Wills — Witnesses—Beneficiary—Competency.</p> <p>Where a will provided compensation for legal services rendered and reimbursement for expenses of an attorney in administering a trust as executor, he is not such a beneficiary under the will as will render him incompetent to testify on the application to probate the will.</p> <p>11. Same — Contest—Witnesses—Competency—Executors.</p> <p>The executor of a will is a party to a will contest, and, therefore, not a competent witness, under 2 Mills’ Ann. Stats., section 4816, providing that no party to any civil action or person directly interested in the event thereof shall testify when any adverse party sues or defends as executor or administrator.</p>

<p>1. Appellate Practice — Findings—Conclusiveness.</p> <p>On appeal, the court is concluded by a finding of the trial court on conflicting evidence.</p> <p>2. Water Rights — Changing Point of Diversion — Vested Rights.</p> <p>On an application by a ditch company to change the point of diversion of a water priority, the company has the right to apply 'such diversion to a larger or smaller acreage as it may see fit, the only limitation being that it shall not divert a larger quantity of water, measured either by volume or time, than the priority entitles.</p> <p>3. Same — Changing Point of Diversion — Application of Water.</p> <p>On an application by a ditch company to change the point of diversion of a water priority, the mere fact that it is the intention of the company to apply the water diverted from its original headgate into the new headgate and new ditch upon a larger acreage, does not even presumptively establish that more water, measured either in time or quantity, will be used than was diverted through the original headgate, nor will it presumptively establish injury to the vested rights of others.</p> <p>4. Appellate Practice — Action of Referee — Presumptions.</p> <p>Where a referee refuses to reopen a case and allow additional testimony to be introduced, in the absence of a showing of an abuse of discretion, it will be presumed that 'such action was proper.</p>

<p>1. Eminent Domain — Public Use — Agencies Created by the State.</p> <p>The authority to exercise the right of eminent domain for public uses, is based upon the theory that property is granted the subject upon condition that it may be retaken to serve the necessities of the sovereign power; to this end agencies created by the state, the purpose of which is to serve the public, may exercise this right; and the vital question is, whether or not the use of the property sought to he condemned will be public in its nature.</p> <p>2. Same — Legislative Action Entitled to Great Weight.</p> <p>While the action of the legislature, in conferring the power of eminent domain for certain purposes, is not conclusive on the courts as to the question of public use, still it is entitled to great weight.</p> <p>3. Eminent Domain — Mining Tunnel — Public Use.</p> <p>Where a mining tunnel is to be used for draining mines and for the transportation of waste and ore for such proprietors as desire to avail themselves thereof, a condemnation for the fight of way therefor under 3 Mills (Rev.), section 616, authorizing any corporation formed for the purpose of constructing a tunnel to acquire any necessary real estate under the eminent domain act, is a condemnation for a public use.</p>