Volume 48 — Colorado Reports

<p>Nonsuit — Where Proper — A nonsuit is not to be ordered, unless, looking at the evidence in the light most favorable to the party holding the affirmative in which the jury would be at liberty to view it, the court is able to say that there is no evidence to support such affirmative. — (3)</p>

<p>1. Evidence — Admissibility—In an action for personal injuries, complaints of the plaintiff, made months after the injuries received, indicating present pain, are admissible, their value being dependent on the circumstances. — (6, 7)</p> <p>2. Appeals — Harmless Error — Y7here the manager of a street railway testifies that the cars used thereon cannot possibly start with a sudden jerk, to refuse to allow him to testify that he had never known of such an occurrence, is harmless. — (7)</p> <p>The reception of testimony variant from the pleadings will not suffice to reverse where no grave and prejudicial error appears.- — (8, 9)</p> <p>3. Trial — -View—Discretion of Trial Court — Plaintiff complaining of an injury which she attributed to the sudden starting of one of defendant’s cars, upon which she was a passenger, and defendant contending that the car could not possibly make a sudden start, it was held discretionary with the trial court to allow or refuse the application of the defendant that the jury should be sent to view the car. — (9)</p> <p>4. Instructions — Not Based Upon Evidence — The court-is not to instruct upon a theory of the case resting upon mere conjecture. — (10)</p> <p>5. New Trial — Newly Discovered Evidence — Affidavit—The affidavit to support a motion for a new trial upon the ground of newly discovered evidence must be made by the party, or a sufficient excuse for his failure, must be exhibited. — (10,11)</p> <p>The affidavit of the attorney containing only hearsay will not suffice.- — (11)</p> <p>6. Damages — Mental Suffering' — In an action for personal injuries, the plaintiff may be allowed compensation for mental and physical pain endured in the past, or to be suffered in the future, as the proximate result of the injury. — (11, 12)</p> <p>7. Passenger Carrier — Duty to Passenger — The carrier is bound to exercise, for the safety of the passenger, the highest degree of care reasonably to be expected from human vigilance and foresight, in view of the mode and character of the conveyance, and consistent with the practical prosecution of 'the business. — (9)</p>

<p>Appeal from Weld District Court — Hon. James E. Garrigues, Judge.</p>

<p>1. Appeals — Harmless Error — Where the pleadings interposed by the successful party are sufficient to support the judgment, the allowance of an amended pleading is harmless, even if erroneous. — (26)</p> <p>2. Technical Errors will not reverse, where substantial justice has been arrived at. — (26)</p>

John H. Voorhees, Judge. Plaintiff below, plaintiff in error here] brought suit for injury to the person, against the defendant in error here, defendant below, alleging damages in the sum of $10,000.00. Defendant interposed a general demurrer to the complaint, which was sustained, and plaintiff electing to stand by his cause as made, a judgment of dismissal followed. To review that judgment plaintiff brings the case here.

<p>1. Pleadings — Reply—Time of Filing — A reply filed after the commencement of the trial, hut to which no objection was made in the court below, will, upon appeal, be treated as filed in due time. — (31)</p> <p>2. -Reply — Waiver of — Where defendant proceeds to trial and presents evidence in support of his answer, he thereby treats it as controverted, and waives the reply.->-(32)</p> <p>3. Appeal — Objections Not Presented Below to a pleading filed out of time, will be disregarded on appeal. — (31)</p> <p>4. Bailment — Liability of Bailee — A common carrier does not excuse himself from the performance of his contract of carriage by delivery of the goods to another claimant unless such claimant is the true owner; and the carrier has the burden of showing this. — (32)</p> <p>5. Common Carrier — Bill of Lading — Delivery by a Stranger Not Endorsed — The carrier who delivers the freight to a stranger upon mere surrender of the bill of lading, unindorsed, such delivery being without the consent of either consignor or consignee, is liable to the consignor. It is immaterial that the carrier acted in good faith and was imposed upon. — (33, 34)</p> <p>6. Evidence — Bill of Lading — Presumption—The presentation of a bill of lading by a third person, not endorsed by the consignee, does not overcome the presumption that the consignee is the owner of the goods. — (34)</p>

<p>1. Appeal — Where No Appeal Lies, may be dismissed if the appellee fails to enter Ms appearance, and the party''thus lose his right of review. — (35)</p> <p>2. Real Estate Broker — Commissions — A broker employed to sell land must produce a purchaser ready, willing, and financially able to purchase the property, at the price and upon the terms fixed by the contract of employment. — .(40)</p> <p>He must be the efficient. and procuring cause of the sale. —'(40)</p> <p>Negotiations set on foot by him, but abandoned without fault of the land owner, do not entitle the broker to commissions, though the land owner, renewing the treaty, subsequently sells to the same person, without renewed effort of the broker.— (40, 41)</p> <p>3. Trial-Pleading and Evidence — Variance — Plaintiff declaring upon a particular contract, cannot recover upon evidence of a different contract. — (41)</p>

<p>1. Trial — Function of the Jury — Every question of fact in dispute is to be left to the jury, where the issue is tried by the jury; and they, are the exclusive judges of the credibility of the witnesses and the effect of the testimony.— (46)</p> <p>2. Sale — Delivery to Common Carrier — A merchant who, pursuant to. the directions of his customer, delivers the goods to a common. carrier consigned to the customer under no special agreement or directions, may look to the customer for the price, though the goods are lost. The delivery to the carrier is in legal effect a delivery to the purchaser. The effect is the same though the seller pays the freight, not intending to retain the title. — (46)</p> <p>3. Payment — Effect—One who, with full knowledge of all the facts, voluntarily pays a disputed bill, will not be permitted to recover the amount.. — (46, 47)</p>

<p>Error to Washington District Court — Hon. Edward E. Armour, Judge.</p>

<p>Error to La Plata County Court — Hon. Charles A. Pike, Judge.</p>

<p>Appeal from Denver District Court — Hon. Booth M. Malone, Judge.</p>

<p>1. Bill of Exceptions — When Necessary — Ail assignment of error for the insufficiency of the evidence will not be considered where no exception to the judgment was reserved. — (59)</p> <p>2. Instructions — Assuming the Facts — Allegations which are not controverted, or which, upon the trial, are treated as true by the parties, may be assumed to be true in the charge of the court. — (60)</p> <p>Objections to the instructions will- not be considered upon appeal unless the bill of exceptions sets forth all the instructions given. — (60)</p>

<p>Appeal from Weld District Court — Hon. James E. G-arrigues, Judge.</p>

<p>1, Eminent Domain — Evidence — Relevancy — Where it is sought to condemn for public uses a water right appropriated to the irrigation of lands, leaving the land .without water, the condition of the fruit trees growing upon the land, and the quantity and quality of the fruit which they bear, is relevant.— (67)</p> <p>So, though the land owner has a decreed appropriation for a certain volume, it may be shown that the source of supply does not furnish this volume. — (67)</p> <p>So, that the land is rocky, badly washed in places, and inaccessible. — (67)</p> <p>2. ---Where Appeal Lies — When the commissioners have presented their report and the court has approved it, denying a motion to vacate the award of damages, the land-owner is .at once entitled to an appeal, and the court has no authority to enter a conditional judgment. — (69, 70)</p> <p>But the judgment is without effect for good or evil, the appeal being not from the judgment, but from the award of the commissioners approved by the court.- — (70)</p> <p>3. Appeals — Harmless Error — The admission in evidence before commissioners under the eminent domain act of the valuation of the land by the county assessor, was held harmless, it appearing that the commissioners could not have been influenced by it. — (68)</p> <p>The approval of the award of the commissioners is a final determination, and authorizes an appeal. The entry of a conditional judgment authorizing possession to be taken upon payment into court of the damages awarded within a specified time, is without effect, and harmless. — (70)</p>

<p>Error to Denver District Court — Hon. Geobge W. Allen, Judge.</p>

<p>Appeal from Mesa District Court — Hon. Sprigg Shackelford, Judge.</p>

<p>1. Municipal Corporations — Ordinance Void in Part — A municipal ordinance, void only as to a part which can be clearly separated and distinguished, and which, when the vicious part is rejected still remains complete within itself, may be sustained by the rejection of the vicious matter. — (81)</p> <p>2. Appeals — Harmless Error — One convicted of the violation of a municipal ordinance cannot complain of such a construction thereof as relieves him of the alternative of a possible imprisonment and subjects him to no more than a pecuniary fine. — (81)</p>

<p>Appeal from Larimer District Court — Hon. James E. Garrigues, Judge;</p>

<p>Water Rights — What is Subject cf Appropriation — Place of Diversion — Water appropriated for the operation of a mill may be the subject of a subsequent appropriation for irrigation in such sense that the second proprietor will be entitled to the water when not needed or used for the operation of the mill. The second appropriator may as well have made his diversion at a point above the mill as below it. It is not required that the mill owner’s appropriation when not in use by him should run idly through the mill-race into the stream before it can be appropriated by another. — (94, 95)</p>

<p>1. Judgments and Execution — Exemptions—Construction of Statute — The exemption laws are to be liberally construed.— (99)</p> <p>2. Citizenship — Presumed From Residence — One who for a considerable time has resided and been engaged in business within the state, will be presumed to be a citizen of the state, unless the contrary appears. — (99)</p> <p>3. Appeals — Objections Not Taken Below — Objections first presented upon appeal are not regarded with favor. Even though of such character that they may then be presented, they will not suffice to reverse a judgment given upon the verdict of a jury, except in a clear case. — (99)</p> <p>-An objection that a party in appraising certain chattels which were in controversy, when testifying upon the stand, gave a valuation exceeding that made in his pleadings, will not be considered if first presented upon appeal.— (100)</p> <p>4. Exemptions — Personal Property — Return of the Goods— The officer who has wrongfully levied upon exempt goods may return them to the debtor; but to relieve himself of liability he must return them to the place from which th'ey were taken, or to some place which the debtor may reasonably designate. To merely authorize the debtor to take them at a place where they are stored is not a return. — (101, 102)</p> <p>And where all the property originally seized is of the character which the debtor is entitled to exempt, and does not exceed in value what he is entitled to, the return of a portion of the goods will not bar the debtor’s action, but merely relieves the officer pro tanto.— (101)</p> <p>5. -Pleading the Statute — It is not required that the judgment debtor suing for a levy upon exempt goods should specially plead the statute. It is sufficient if facts entitling him to the exemption are set up. — (101)</p> <p>6. -Selection of the Goods — Where all of the debtor’s goods are exempt he is not required to make a selection of particular articles; a claim that they are exempt is sufficient. — (102)</p> <p>7. Practice — Verdict for Triple Value — The statutes allowing three times the value of exempt goods unlawfully levied upon, the jury may return the actual or the statutory damages, as the court may direct. — (103)</p> <p>8. Witnesses — As to Value, Competency — A woman who purchased, and has used, a sewing machine, is competent to testify as to its value. — (99)</p> <p>9. Instructions — Non-Direction, is not error unless the proper instruction was tendered and refused. — (103)</p> <p>10. Householder — Eviction—A householder who is unlawfully expelled from his dwelling is entitled to an action. — (104)</p>

<p>Error to Pueblo District Court — Hon. C. S. Essex, Judge.</p>

<p>Appeal from Denver District Court — Hon. Frank T. Johnson, Judge.</p>

<p>Original Proceeding en banc.</p>

<p>Error to Denver County Court — Hon. "W. Gr. Alexander, Judge.</p>

<p>Appeal — Order for Particular Judgment — Effect—Where the mandate of 'this court directs a specific judgment, the court below must yield implicit obedience thereto. No modification of the judgment ordered will be permitted, nor any provision engrafted, which is not provided for in the mandate. — (130)</p> <p>If by reason of events occurring subsequent to the- judgment of this court, it-becomes inequitable to carry into effect the judgment directed, an original action must be resorted to. The case of People v. Carpenter, 29 Colo., 365, distinguished.— (132)</p>

<p>1. Judgment — Construction—In the construction of a decree establishing priorities to the use of water the statements of claim upon which it is based may be considered, in connection with the record. — (141)</p> <p>So of an agreed statement of facts showing the circumstances under which the decree was entered, and the conditions then existing in the water district. — (141)</p> <p>The whole record must he brought into view. — (141)</p> <p>And where the letter of the decree is susceptible of two meanings, one conformable to law, and the other opposed to it, the former construction must be adopted.— (142)</p> <p>A decree adjudicating priorities to the use of water limited the right to the use of water to “one cubic foot for each 50 acres,” and declared that “nothing herein shall be taken to grant *■ * * water to any greater amount than in said ratio and proportion,” and that “water is only allowed to flow into such ditches, in said ratio and proportion, as the land under said ditches shall he brought under practicable cultivation.” Héld that the decree was conditional; that its only effect was to de-' clare the capacity of the ditches, and the volume of water to which the several claimants would be entitled for the future irrigation of their respective lands, conditioned, however, upon diligence in applying the water to the use for which the appropriation was claimed. All other rights were left inchoate, and only became absolute upon the application of the water to beneficial uses within reasonable time, and that whether a perfected right to the enjoyment of the water had vested, was left to be determined in some future appropriate proceeding. — (144)</p> <p>2. Water Rights — Adjudication of Priorities — The court is without authority to decree to a claimant, unconditionally, a greater volume of water than he has already actually applied to beneficial uses. — (143)</p> <p>3. Water Rights — Appropriation—In a proceeding to adjudicate priorities, under the statute, the defendants were decreed three and two-tenths cubic feet of water per second of time. The • decree limited the volume of water to be used to one cubic foot per second of time for each fifty acres, and provided that the lands under the ditches should be brought under cultivation with reasonable diligence. This decree was entered in 1889. Up to and including the year 1903 the defendants had cultivated in all only 80 acres. The plaintiffs who were awarded junior appropriations to a much larger volume, had, in the meantime enlarged the area of their cultivation to 520 acres. In the autumn of 1903, and the spring of 1904, defendants cleared and broke a large acreage of new land, never before irrigated. In June, 1904, the water commissioner, at the instance of defendants, closed down the plaintiffs headgates, in order to enable defendants to irrigate this newly cleared land. Held, that by reason of their delays, the inchoate' right conditionally granted to defendants by the decree of 1889, had never vested; that they could not be permitted, by action taken after such delay, to revive this imperfect and lapsed right, to the divesture of the rights which plaintiffs had, by their superior diligence, in the meantime acquired under the same decree. — (145)</p> <p>Held, further, that the use of water in excess of the volume allowed by the decree, during the time of high water only, should not be said to establish a use under the decree. — (146)</p> <p>And that a volume in excess of defendant’s rights, obtained by a deceit practiced upon the water commissioner, in no manner impaired the rights of the plaintiffs, nor conferred any right upon the defendants. — (147)</p>

<p>Error to Denver District Court — Hon. Booth M. Malone, Judge.</p>

<p>Quieting Title — Plaintiff’s Possession — Under sec. 255 o£ the Code, plaintiff in a bill to quiet title must, where his possession is denied, give evidence to establish such possession. — (155)</p> <p>The mere recording of a tax deed does not answer the requirements of the statute. — (154,155)</p>

<p>■1. Evidence — Admission of Matter of Law — It is not competent to establish the law by an admission, e. g\, the due publication of a municipal ordinance, which, until published, is without effect. The party making such admission is not concluded thereby. — (158, 159)</p> <p>2. Municipal Ordinance — When in Force — The statute (Mills’ Stats., § 4443,. Rev. Stats., § 6673) that ordinances shall not take effect until the expiration of five days after a publication implies that after the expiration of this period they are in force. — (157)</p> <p>3. Passage — Record of Those Voting — It seems that in order to the effectual passagp of an ordinance the names of those voting must be entered upon the record. — (158)</p> <p>4. -Publication — Under a charter provision requiring the publication of all by-laws of a general nature, and those imposing any fine, etc., and providing that “it shall be a sufficient offense to any prosecution for any such fine that no such publication was made” (Mills’ Stats., § 4443, Rev. Stats., § 6673), a publication before the adoption of the ordinance is without effect. — (159) “</p> <p>5. Statutes Construed — A statute providing for the publication of an ordinance by the city council of the city, before it can be adopted-(Laws 1901, c. 108, Rev. Stats., § 6674) has no application to towns. — (160)</p>

<p>1. Appeals — Second Appeal — Law of the Case — Where, upon appeal, the evidence is held sufficient to establish a fact in issue, this is the law of the case, where, upon a second appeal, the evidence contained in the record is substantially the same as upon the first/ — (162)</p> <p>2. Appeals — Harmless Error — The refusal of an instruction, the doctrine of which is substantially identical with that of an instruction given, is harmless. — (162)</p> <p>3. Principal and Agent — Agent’s Authority — Ratification— An account stated by one’s bookkeeper, general manager, and personal representative in the transaction to which- the account relates, binds the principal. — (162)</p> <p>So, if though without original authority it is afterwards, with full knowledge, ratified by the principal. — (162)</p>

<p>1. Bill of Exceptions — Requisites—Unless all of the testimony heard *in the court below is presented in the bill of exceptions, the findings of the trial court will be accepted as conclusive. — (165)</p> <p>2. Specific Performance — Delays of Purchaser — Failure of the purchaser of lands to comply with the terms of his contract at the day, because of vendor’s failure to tender a marketable title, does not, where time to perfect the title was requested and granted, bar the purchaser’s action for specific performance. — (167, 172)</p> <p>3. Laches — Must Be Pleaded, in order that opportunity for explanation of the delay may be afforded. — (169)</p> <p>4. Appeals — Objections Not Taken Below — The plaintiff had replied to defendant’s cross-complaint. At the trial he objected to the introduction of evidence thereunder, but not on the ground that mere conclusions of law were presented. He had given evidence as to the same matter in respect of which, upon the appeal he suggested defects in the allegations of the cross-complaint. The court refused to entertain the objection. — (170)</p> <p>5. Vendor and Vendee — Contract Construed — Under an agreement to deliver “a good and valid warranty deed,” the purchaser may insist upon a marketable title.— (171)</p> <p>6. Cases Overruled, Explained or Distinguished — Dargin v. Cranson, 12 Col. App. 368, distinguished. — (171)</p> <p>7. Decree — Form — Presumption — That the decree merely finds and declares the allegations of the cross-complaint to be true, and those of the complaint untrue, is not fatal. It is presumed that the court intended to find all the facts essential to the integrity of the decree.— (172)</p> <p>But the court recommended specific findings of fact. — (172)</p> <p>8. Vendor and Vendee — Vendor’s Default — Interest on Purchase Money — Taxes—Time Allowed Vendee to Perform — Where the purchaser has never obtained the possession, and, by the refusal of the vendor to convey, he is compelled to go into equity, the purchase money draws interest only from the date upon when the decree is to be performed by the vendee.— (174,175)</p> <p>And the vendee is not to be charged with the taxes which he would have been required to pay if the vendor had complied with his contract, in point of time. — (177, Í78)</p> <p>The decree must allow the purchaser the same length of time for the payment of the purchase money as allowed hy the contract. — (175)</p> <p>The decree should fix a reasonable time within which the contract shall be performed by the respective partieg. — (178) .</p> <p>9. Specific Performance — Decree Departing From Contract— A clause of the decree which allows payment of the purchase price in full, while the contract provides for only a partial payment, and the residue in installments, at interest, 'is cured by a subsequent clause allowing the vendor to insist upon terms conformable to those of the contract. — (176, 177)</p>

<p>1. Parties — Plaintiffs—A reservoir company having by contract with an irrigating company, acquired the right to conduct the water collected in its reservoir, through the ditch of the latter company, may maintain a bill for an injunction against those who unlawfully divert the water, while in its course through the ditch, without joining the irrigating company. The circumstance that under the contract, the superintendent of the irrigating company is to distribute the waters of the reservoir., does not change the result. — (181, 182)</p> <p>2. Pleadings — Conclusions of Law — In the same case it was held that an averment that the plaintiff had acquired a priority of appropriation from a natural stream, without setting forth the facts showing such appropriation, was sufficient; that the question of priority of appropriation was not involved.— (183)</p> <p>3. Water Rights — Contract Construed — The right, by contract with an irrigating company, to have water from the ditch of that company for 'irrigating lands, confers no right to take and divert the waters of a reservoir which another corporation is entitled to carry through the ditch as a conduit. — -(184, 186)</p> <p>4. Easement in the Use of Water — Prescription—In the same case held that the taking and use of water from the ditch, for a long series of years, without objection from the owners of the reservoir — it not appearing that any'water derived from the reservoir was so taken and used — was held not to confer an easement by prescription, as against the reservoir company, nor convict it of laches, even though the waters accumulated in the reservoir were, when turned into the ditch, so mingled with other waters as to make it impossible to determine what proportion thereof was obtained from the reservoir.— (186)</p> <p>It was the duty of the owner of the canal, in such case to put in measuring weirs so that the water might be properly, distributed, but its failure to perform this duty in no manner diminished the rights of the owner of the reservoir. — (186)</p> <p>5. Pleading — Prescription—Plea of a prescriptive right to divert and take the waters of a reservoir, while being afterwards carried through the canal, must show the taking and enjoyment of the waters of the reservoir. An averment that the defendants had for a long series of years, “diverted water from the canal without let or hindrance, etc.,” not averring that the water so diverted was water from the reservoir, is insufficient. — (186)</p> <p>6. Judgment — Upon Whom Conclusive — A judgment has no effect upon the rights of one not made party to the action, even though he has notice of its pendency. He is not under duty to intervene. — (187)</p> <p>7. Appeals — Failure to Find Immaterial Issues, is not error. —(189, 190)</p>

<p>Resulting Trusts — Fraud—Lands purchased with the funds of the wife were conveyed to herself and husband, she being induced to consent thereto, by the husband’s false representation that this was necessary under the laws of Colorado. She after-wards conveyed her interest therein to him, upon his promise to sell the lands, and follow her to New York, where their relations should be resumed. He refused to either sell the lands or go to New York, and denied the marriage. He was decreed to convey to the wife. — (191)</p>

<p>Tax Deed — Lands Sold to County — Recitations—A tax deed which recites that the treasurer “on the 16th day of December, 1902 ...... * at an adjourned sale, the sale begun and publicly held on 15th day Of December, A. D. 1902, exposed to public sale,” certain deescribed lands, that “no bids were offered or made by any person therefor, and the treasurer having become satisfied that no sale of said property could be had, therefore the said property was by the then treasurer of the said county stricken off to said county,” is void on its face, for failing to show that the land was offered on the day immediately preceding that on which it was sold and this even though the deed literally follows the form prescribed by the statute. — (194)</p> <p>No presumption, in support of the deed is to be indulged in such case. — (194, 195)</p>

<p>Deed of Trust — Notice of Sale — A deed of trust authorized a sale of the lands, after “four weeks public notice of the time and place of such sale by advertisement weekly, in some newspaper of general circulation.” The notice of sale • thereunder, to take place on the 12th of December, was, published on the 10th, 17th and 24th days of November, and the 1st day of December. Held a compliance with the power contained in the deed of trust, and with the statute (Laws 1894, c. 6, sec. 5, 3 Mills’ Stats., sec. 4559.) — (198, 199)</p>

<p>Appeal from Summit District Court •— Hon. Charles Cavender, Judge.</p>

<p>1. Appeals — Judgment Not Involving Freehold — To give an appeal on the ground that the judgment relates to a freehold, the judgment must necessarily take from one party and give to the other a freehold. It is not sufficient that a freehold is collaterally or incidentally called in question. A judgment quieting the title to land as against one merely asserting that they are in ’fact the property of a third person, and that by an attachment against said third person he has acquired a lien, does not involve a freehold, and no appeal lies, by the attaching creditor. — (203-206)</p> <p>2. Appeals — Where >No Appeal Lies — An appeal where no appeal lies must be dismissed unless the appellee appears.— (203)</p>

<p>Water Rights — Appropriation—Plaintiff had commenced and partially constructed a ditch appropriating certain seepage water, and applied it to the irrigation of his land. Later he entered into an agreement to convey to defendant the land and one-half the water right, and to make a certain extension of the ditch. It was stipulated that if defendant should he dissatisfied with the water right, plaintiff would transfer to him, in lieu thereof, a share in a certain ditch. Defendant entered into possession under this contract, and of his own motion enlarged and extended the ditch, securing an increased volume of water. At a later date plaintiff conveyed the land and the ^water right to defendant. Defendant afterwards expressing dissatisfaction with the water right, it was agreed that a specified deduction should he made from the purchase money, and defendant reconveyed the dater right. Held that the work voluntarily performed hy defendant, in enlarging the ditch, while in possession under the contract, should not he regarded an appropriation.— (210, 211)</p>

<p>Appeal from Denver County Court- — lion. Charles McCall, Judge.</p>

<p>1. Evidence — Order of Proof — Evidence incompetent when offered may be made competent by evidence contradictory thereto, subsequently presented by the other party; e. g., evidence sustaining the character of a witness, by witnesses subsequently called to assail it. — (217)</p> <p>2. ---Rape — Corroboration of Prosecutrix, is not indispensable — (219, 220)</p> <p>3. Criminal Law — Assault Upon Female Under Age of Consent — Information—An information under the statute (Laws 1895, c. 68, § 1, Laws 1905, c. 94; Rev. Stats., § 1656), for an assault upon a female child under the age of eighteen, is not made double, as charging both the statutory crime, and the common-law crime of rape, by averring the use of force.— (216)</p> <p>4. -Evidence of Prosecutrix — Where, as the result of the criminal act a child is born, the testimony of the prosecutrix as to the date of conception does not conclude the state. — <221)</p> <p>5. Instructions — Nondirection, is not error unless an instruction sound in law, and justified by the facts, is tendered. Where an instruction bad in part is presented, the court is not under duty to modify it by striking out the vicious matter.— (222)</p> <p>6. -To be Construed as a Whole — A proper instruction as to reasonable doubt concluded as follows: “you are not at liberty to disbelieve as jurors what you believe as men.” Held that the failure to add the words “from the evidence” did not have the effect to relieve the jurors from the obligation of their oaths, nor permit them to find upon their own personal knowledge or beliefs. — (223, 224)</p> <p>But the instruction was not approved. — (225)</p> <p>• 7. —'—Reasonable Doubt — The charge as to reasonable doubt which was approved in Minich’s case, 8 Colo. 454, and. in Van Wyk’s case, 45 Colo. 1, again commended, and the courts advised to adopt it without change. — (225)</p> <p>8. Error — Questions Not Presented Below — A motion to quash an information because charging parts of two separate offenses, will not on error brought, support the contention that both a common law and statutory crime are presented. — (216)</p> <p>9. -Harmless Error — The admission of evidence which cannot have influenced the jury is harmless. — (22Y)</p>

<p>Appeal from Denver District Court — Hon. N. Walter Dixon, Judge.</p>

<p>Appeal from Denver District Court — Hon. Frank T. Johnson, Judge.</p>

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

<p>1. Statutes — No Power in the Courts to Imply Exceptions —The courts have no power to incorporate an exception into an absolute and positive rule, prescribed by statute. — (289)</p> <p>2. Statutes — Implied Repeal — The revision of the entire subject-matter of a statute, evidently intended to prescribe the rule in all cases, is a repeal. — (289)</p> <p>3. Statutes Construed — Sec. 2272, Mills’ Stats., is not repealed by the act of April 6, 1899 (Laws 1899, c. 126). — (289-291)</p> <p>4. Reservoirs — Liability of Owner — The owner of a reservoir is liable for injurie^ occasioned to others by leakage or overflow therefrom, or the breaking of the embankment. No skill, care, or diligence, in construction or maintenance .relieves him. — (289-291) ' ' . . ■ . .</p> <p>The natural hillside or mesa, against which the embankment is constructed, and which aids 'in impounding the water, is part of the reservoir, within the statute. The owner is liable for injuries occasioned by its giving way, though the artificial embankment remain. — (296) •</p> <p>Upon the question whether the fact that the injury occurs by the act of God or the public enemy, no opinion is expressed. —(296)</p>

<p>Error to Denver District Court — Hon. Peteb L. Palmee, Judge.</p>

<p>Error to Denver District Court — Hon. Peter L. Palmer, Judge.</p>

<p>1. Appeals — Findings on Conflicting Evidence — The findings of the trial court on sufficient competent evidence are conclusive. — (341)</p> <p>2. Evidence — Testimony of Deceased Witness in a Different Cause — Testimony given upon the trial of another cause, in a different court, the witness being deceased in the meantime, is admissible only when it is shown that the parties and the matters in issue in the two causes were identical; and this is not to he shown by the mere statements of counsel or the testimony of the official stenographer of the court. — (342)</p> <p>3. Evidence — Practice—Offer of Evidence — The exclusion of evidence incompetent when offered, for want of the proper foundation laid, does not become erroneous by subsequently laying the foundation, without again offering the evidence. — (343)</p>

<p>1. Water Rights — 'Abandonment'—Who May Assert — The officials charged by law with the distribution of water for irrigation will not be heard to allege, in a suit instituted to compel obedience to a decree establishing the several priorities in the district, and in which suit they are the sole defendants, that a right decreed has been lost by abandonment. The question can be litigated only between the parties whose rights are directly involved. — (347)</p> <p>2. Irrigation — Duty of Water Commissioner — It is not within the province or duty of the officials charged with the distribution of water for irrigation to question the decrees establishing the priorities to the use of water in the district, where regular in form, in full force, and unmodified, or to attempt to impeach, nullify, or in any way impair their efficiency. Controversies between the various consumers of water are to be adjusted only in proceedings instituted by those interested therein. The purpose of the owner of a water right to change the place of the application of the water, not changing the point of diversion, affords no ground to the officials to decline to turn off the water according to the decree. To what lands the water shall be applied is a question to be litigated between the consumers affected. — (349)</p> <p>3. Mandatory Injunction — Where the Writ Lies — To compel the officers of the irrigation service to distribute the waters of the district according to the’ decreed priorities of the several consumers. — (349)</p>

<p>1. Trial — General Findings determine all the issues. — (350)</p> <p>2. Appeal — Presumptions—Where there is no hill of exceptions, it will he presumed that there was sufficient material and competent evidence to support the findings. — (350)</p>

<p>Appeal from Bio Grande District Court — Hon. Charles C. Holbrook, Judge.</p>

<p>Appeal from Denver County Court — Hon. Charles McCall, Judge.</p>

<p>1. Appeals — Verdict on Conflicting Evidence, legally sufficient, will not Be disturbed.— (361)</p> <p>2. -Abstract — Objections taken to instructions given will. not be considered, unless the abstract of the record shows that all the instructions so given are set out.— (361)</p> <p>3. -Harmless Error — Error in the instructions as to the measure of plaintiff’s damages is harmless, where the jury finds the issues for the defendant. — (362)</p> <p>4. Negligence — Examples—Defendants having advertised a-balloon race, had afterwards prohibited it. Without further direction from defendants, and without their knowledge, one of the areonauts attempted to make the ascent, and during this attempt an accident occurred to a spectator. The defendants were acquitted.— (.363, 364)</p> <p>5. Contributory Negligence-Examples — A boy, who being at a public resort, voluntarily quits a place of safety, and goes to a place where, as he knows, he is exposed to danger, is guilty of contributory negligence.— (365)</p>

<p>Appeal from Denver County Court — Hob. Charles McCall, Judge.</p>

<p>Appeal from Denver District Court — Hon. Carlton M. Bliss, Judge.</p>

<p>1. Admissions — Negotiations for Compromise — A distinct admission of liability, or of any independent material fact, though made during negotiations for a compromise, is admissible in evidence against the party making it. So of an offer to pay a sum certain, if made with the intent to admit that such amount is in fact due, otherwise, if made merely to purchase peace. — (376)</p> <p>The intent of the party in making the offer is a preliminary question, to he determined by the court, or, under certain circumstances, by the jury. If the finding of the preliminary question is against the evidence this may be assigned for error. — (378)</p> <p>The evidence examined and held to support a finding that the offer to pay a certain sum was intended as an admission that so much was in fact due. — (378-380)</p> <p>2. Instructions — Nondirection, is not error. — (380)</p> <p>3. Interest — Money Due on Account — Under sec. 3162, Rev. Stats., one who has by procuring a lease of lands for another, earned a fixed sum as a commission, is, entitled to interest thereon from the day upon which the commission became due. — (381, 382)</p> <p>4. Words and Phrases — The phrase “Money Due on Account” in the statute regulating interest, includes a stipulated sum earned as a commission for procuring* lease of land. — (382)</p>

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

<p>Appeal from El- Paso County Court — Hon. Robert Kerr, Judge.</p>

<p>Appeal from Denver District Court — Hon. Hubert L. Shattuck, Judge.</p>

<p>1. Principal and Agent — Definition—An agent is one who acts for, or in the place of, another, by authority of such other, or who is entrusted with the business of another. — (407)</p> <p>The evidence examined and held to establish the relation of principal and agent between the parties. — (407-409)</p> <p>2. Deceit — Agent who by false representations as to the price for which particular lands can be purchased, induces the principal, relying upon such representations, to pay therefor a sum greatly in excess of that for which the land was in fact purchased, converting the difference to his own use, is liable for the excess so fraudulently procured. — (409)</p> <p>And where what was so fraudulently obtained was merely the discharge of a previous indebtedness, the understanding of the parties that the indebtedness was discharged, is equal in effect to a formal release. — (410)</p>

<p>Statutes Construed — The statute (Mills’ Stats., sec. 210, Kev. Stats., sec. 244) providing that all sheriffs, jailers, etc., having custody of any prisoner, shall .admit any practicing attorney whom the prisoner may desire to consult, to see and consult with the imprisoned party in private, and, refusing, shall pay a specified sum “to the person aggrieved,” it is the prisoner and not the attorney who is aggrieved. The prisoner alone is entitled to the action.— (413)</p>

<p>1. Eminent Domain — Verdict—Under sec. 1732, Mills’ Stats., (Rev. Stats., 2432), the verdict must affirmatively show that the question of benefits to the lands not taken, was considered and determined; otherwise it was insufficient and must be vacated. —(415)</p> <p>Where the verdict as to this matter was as follows, “That the amount and value of the benefits received by the defendants due to the construction of this ditch, is .......... dollars,” it was held to import that the question of the benefits was considered and passed upon, and that the benefits were nothing. —(415)</p> <p>2. Practice — Verdict—Time of Objection to — One who would object to the form or substance of a verdict must do so at the time of its return, and before the discharge of the jury. — (416)</p> <p>3. -Affidavits of Jurors to Impeach, are to be received only under the conditions prescribed by sec. 217 of the code. —(416)</p>

<p>Appeal from Ouray District Court — Hon. Sprigg Shackelford, Judge.</p>

<p>Exception to Judgment — Necessity For — A judgment of the district court dismissing an appeal from the county court will not be reviewed, unless an exception thereto was reserved at the time, and manifested by a bill of exceptions. — (418)</p> <p>A mere recitation of the exception upon the record of the judgment, is without effect. — (418)</p>

<p>1. Bill of Exceptions — Requisites—Where the bill of exceptions does not purport to contain all the testimony produced at the trial, it will be presumed that the evidence was sufficient to support the judgment. — (421) ■</p> <p>2. Judgments — Presumptions to Support — The judgment of a court of record is supported by a conclusive presumption that jurisdiction was had of all the parties against whom it .was pronounced, unless the contrary affirmatively appears by the record. —(421)</p> <p>3. --Void — Where the record discloses that jurisdiction of the person of the defendants was not obtained, the judgment is void, and may be collaterally attacked by any person, whenever it is brought in question. The recitations of the record as to the service of process are not conclusive, if the entire record affirmatively shows the contrary.— (421)</p> <p>4. --Collateral Attack — Constructive Service — Where the service of a process was by publication, and the record and files of the cause show that the provisions of the code were not complied with, the judgment is open to collateral attack, notwithstanding a false recital that service was had. — (422)</p> <p>The syllabus to the case of Hughes v. Cummings, 7 Colo. 203, is misleading. — (422)</p>

<p>1. Pleadings — Judgment on the Pleadings — Where the plaintiff declared in replevin for live stock, and the answer, in one defense, denied both plaintiff’s ownership and right to possession since a date prior to the institution of the action, held that though in another defense the taking of the animals from the range and the refusal to surrender them on demand, was admitted, plaintiff in order to recover must establish both ownership and the right of possession, at the institution of the action, and that his motion for judgment was properly denied. — (424-426)</p> <p>2. Practice — Judgment of Discontinuance, is properly entered where, plaintiff’s motion for judgment being denied, he stands thereon. — (427)</p>

<p>Error to Cheyenne County Court — Hon. W. S. Morris, Judge.</p>

<p>1. Assignment for Collection — Effect—A written order from the creditor to the debtor, to pay the debt to an attorney, its purpose being merely to authorize the collection of the money, does not invest the attorney with title to the demand, or the proceeds of collection.— (434, 435)</p> <p>2. Intervention — Effect — The intervenor submits all his rights in respect to the matter in controversy, to the judgment of the court in the same action. ■ He will not he heard to complain that they were there determined. — (435)</p>

<p>1. Mandamus — Original Jurisdiction of the Supreme Court— When Assumed — The supreme court will exercise original jurisdiction under sec. 3, art. VI of the constitution, only in case of some peculiar emergency, or where the questions involved are clearly of public interest, and then only when satisfied that the rights of the parties are not likely to be protected and enforced in the lower courts. — (439)</p> <p>The public examiner appointed under the statute, and thereby required to examine the financial affairs of every state and county office and every state or county institution, penal, reformatory, educational or charitable, at least once in each year, and oftener if the auditor of state should deem it necessary, had, on the 31st of March, under direction of the auditor, visited the office of respondent, the county clerk of Huerfano, in order to make such examination, and had been denied access to the books and records of the office. On the 4th of April he applied to the district court for an alternative writ of mandamus to compel the respondent to permit such examination. An alternative writ was awarded, returnable April 20th. Respondent in lieu of answer interposed a motion to quash the writ, assigning as ground thereof the unconstitutionality of the statute. This motion was argued on the 30th of the month and relator’s counsel urged the court to make an immediate ruling; but the court refused to rule at that time and allowed respondent twenty days (after-wards, on ex parte application, extended to thirty days) in which to file a brief. The attorney general on the 23rd of May had telegraphed, and again on the 24th and 27th of May, written, to the district judge requesting an immediate ruling, and advising him that no brief in reply to that of respondent would be filed. On the 14th of June the attorney general was informed by a letter from the clerk of the district court that respondent’s motion had been overruled on the 11th of' that month, and that thirty days had been allowed him to plead. On the 16th of June the relator discontinued the proceeding in the district court and represented his petition in the supreme court, praying the same relief.</p> <p>The court in view of the repeated and protracted delays which had occurred in the district court, the manifest probability that the respondent would continue to contest the constitutionality of the statute, the danger that other public offices might adopt the same obstructive and dilatory course,, and that the executive department of the state would, during the delays incident to litigation in the district courts be hindered and obstructed in the enforcement of the law, thought the case a proper one for the exercise of its original jurisdiction. — (439-442)</p> <p>2. -Issue of Fact — Effect—The general rule is that when the return presents an issue of fact the supreme court will decline jurisdiction; but the only issues of fact presented being upon the respondent’s denial of the refusal of access to his books, alleged against him (which was clearly negatived by the record), and the respondent’s averment that the request for an examination of the books of his office was not made in good faith, and that the examination, if allowed, would be made by irresponsible persons who would not report faithfully (which the court held mere trifling and an averment that ought not to have been made), the general rule was held not to apply. — (4'43)</p> <p>3. Order of Dismissal — Effect—An order of the relator in mandamus, to dismiss the proceedings, accompanied by payment of the costs, is under Code, sec. 166, a discontinuance. — (444)</p> <p>4. Constitutional Law — Legislative Power to Create Offices —The legislature has power to create public offices in addition to those provided for in the constitution. The act creating the office of public examiner, Laws 1909, c. 192, is a constitutional enactment.- — (444)</p> <p>5. -Title of Act — The title “An act to create the office of public examiner and to establish a uniform system of public accounting, auditing and reporting under- the administration of the auditor of state, to provide penalties for the violation hereof,” and repeal a prior enactment specified, is not obnoxious to sec. 21 of art. V of the constitution, as containing more than'one subject.— (445)</p>

<p>Error to Denver District Court■ — -Hon. Carlton M. Bliss, Judge.</p>

<p>1. Custom — Effect—Presumption — A traveler taking quarters at a hotel is entitled to assume, until notified to the contrary, that the authority of all there employed is that prevailing generally in hotels of the same class, and in a controversy involving the authority of'one of such employees, he is entitled to prove the custom. — (483, 484)</p> <p>2. -Particular — The proprietor of a hotel sought to he charged with the act of his employee is not to be permitted to defend upon proof of his own custom, or the limited authority of the employee, not brought to the notice of the guest, and which is opposed to a general custom. — (483)</p> <p>Evidence of such limitation of the employee’s authority, not brought to the attention of the guest, is not admissible. — (483)</p> <p>3. Innkeeper — Liability for Goods of Guest — A guest delivers his baggage checks to an innkeeper or his servant, e. g., a bellboy. The innkeeper is thereby in constructive possession of the baggage, and liable therefor. — (481)</p>

<p>Error to Fremont District Court — Hon. Morton S. Bailey, Judge.</p>

<p>Appeal from Boulder County Court — Hon. Junius Henderson, Judge.</p>

<p>Appeal from Boulder District Court — Hon. James E. Garrigues, Judge.</p>

<p>1. Equity — Cancellation of Writings — Evidence. — Unequivocal testimony that the writing was procured by false representations as to its effect, may, tbougb contradicted, suffice to- warrant its cancellation by a court of equity. — (499, 500)</p> <p>2. Negligence, When a Bar to Relief — Confidence reposed by the maker of a document in tke one at whose instance it is executed may excuse the neglect to read it or submit it to counsel. Negligence of the defrauded party will not avail the one guilty of the fraud inducing suck negligence. — (501)</p>

<p>Error to Garfield District Court — Hon. John T. Shumate, Judge. '</p>

<p>1. Equity Pleading — Laches—One who applies to a court of equity after an unreasonable lapse of time succeeding the accrual of his right, must set forth in his bill with particularity the impediments to an earlier application. — (508)</p> <p>2. Evidence — Parol — Admissible, to show a deed absolute of lands to be a mortgage (Code § 261)-; but the evidence must exclude all reasonable doubt. — (509) .</p> <p>The evidence examined and held insufficient to meet the requirements of the rule. — (517)</p> <p>3. Conveyance of Land, with Contemporaneous Bond to Re-convey, is sometimes accepted as strong evidence that a mortgage is intended; but where it appears that an absolute transfer was the purpose of the parties, this intention ’prevails. — (516)</p> <p>4. Contracts — Construction—Conduct of Parties — The construction placed upon a contract by the parties thereto in the performance thereof, before controversy has arisen, is one of the best evidences of the intent of' the contract. — (518)</p> <p>5. Appeals — Finding on Insufficient Evidence — A decree entirely unsupported by the proofs will be reversed. — (520)</p>

<p>Appeal — Conflicting Evidence — A decree sustained by the evidence affirmed.</p>

<p>1. Equity — Bona Fide Purchase — Who May Plead — Only one having a legal as well as an equitable title can assert this character. Plaintiff dealing ostensibly for Webster purchased lands from Yeager. The title was conveyed to- Webster. Before receiving the conveyance of Webster, plaintiff acquired notice of a proper conveyance by Yeager. Held, he was not a bona fide purchaser. — (526)</p> <p>Even Webster was not a bona fide purchaser, because he had paid nothing.. — (529)</p> <p>That plaintiff in his. purchase falsely assumed to act for another, and delayed in taking the conveyance from his trustee, in order to create an appearance of good faith, was thought by the court an additional reason to deny his claim. — (528, 529)</p> <p>But, the other party conceding it, he was allowed what he had paid. — (529, 530)</p> <p>2. Appeal' — Finding on. Conflicting Evidence, will not be disturbed. — (530)</p>

<p>Appeal from Mesa District Court — Hon. Sprigg Shackelford, Judge.</p>

<p>1. Statutes — Parol Evidence to Construe — Where a statute is plain and unequivocal, parol evidence as to the meaning of the -words thereof, leading only to absurdity, is not to he accepted. —(538)</p> <p>2. Criminal Law — 'Derailing Train — Under the Act of April 8, 1895 (Laws 1895, c. Ill, 3 Mills’ Stat. § 1420, Rev. Stat. § 1884), the willful displacement of a switch in any manner, with intent to derail a train or any part of it, is a felony. — (538)</p> <p>3. Writ of Error by the People — Judgment—Hpon writ of error brought by the People under the statute (Laws 1907, c. 162, Rev. Stat. § 1997), error being found, the judgment of acquittal is not reversed, but the ruling of the court below is merely declared erroneous. — (538)</p>

<p>1. Prohibition — When the Writ Will Be Awarded — 'The writ will not be allowed where no objection has been made in the court whose proceeding is sought to be stayed. — (540)</p> <p>2. Judgment on Error — Where the record shows that the writ ought not to. have been allowed, and that the defect is not amendable, the judgment awarding the writ will be reversed with directions, to dismiss the petition. — (541)</p>

<p>Appeal from Routt County C°urt — Hon. Charles A. Morning, Judge.</p>

<p>1.. Bill of Exceptions — Extension of Time to Tender— Under the code provision (Code § 385) an order extending the time for tender of a bill of exceptions, entered after the lapse of the term at which the exception was taken, is without effect. —(552)</p> <p>2. Mandamus — Where the Writ Lies — Not to compel a sheriff or constable to surrender goods seized upon a search warrant, in excess of what is described therein, while the proceedings under the search warrant are still pending. — (552)</p> <p>3. Replevin — Where the Action Lies, against sheriff for goods seized under a search warrant which are not described therein. — (553)</p> <p>4. Search Warrant — Disposition of Goods, is controlled by the statute. Mills’ Stat. § 1492, Rev. Stat. § 1937. — (552)</p> <p>5. Pleadings — Presumptions—Pacts not alleged or adverted to in the complaint are not to be presumed in order to sustain a judgment for the plaintiff. — (553)</p> <p>6. Relief — The complaint prayed the writ of mandamus to compel restitution of goods seized by the officer at plaintiff’s premises, under a search warrant. Judgment was given accordingly. On appeal it was sought to sustain the proceeding as, in effect, an action of replevin. But there being no allegation of property in the plaintiff, or damages suffered by reason of the detention of the goods, and the judgment not being for a return of the goods, or in default the value, the contention was repelled. — (553)</p>

<p>Error to Denver District Coxirt — Hon. Peter L. Palmer, Judge.</p>

<p>Appeal from Mesa District Court — Hon. Theron Stevens, Judge.</p>

<p>1. Mining Location — Grantee of Alien Locator — In an action ■brought to support an adverse claim, to an application in the United States Land Office, for patent to a mining claim, the plaintiff must affirmatively prove that the original locator was at the date of the location a citizen of the United States, or, if alien born, had declared his intention to- become such citizen. Thomas v. Chisholm, 13 Colo. 105, followed; McKinley Creek Co. v. Alaska Co., 183 U. S. 563, and Manuel v. Wulff, 152 U. S. 505, distinguished. — (573-575)</p> <p>2. -Application for Patent — Adverse Suit — Evidence— In a suit to sustain an adverse claim the plaintiff must prove a location conforming to the statute, and including the territory described in his adverse'claim as filed in the Land Office. — (577)</p> <p>3. -Evidence — Plat—A plat of what is alleged to be the plaintiff’s location, but which was made upon assumption merely, without any reference to the location certificate, or the workings or monuments • upon the ground, but in disregard of them, should not be received. — (579)</p> <p>4. Lode Claim — Location Certificate — Certainty in Calls— Notwithstanding the provisions of sec. 3154 Mills’ Stat. (Rev. Stat. sec. 4199), the location certificate must correctly describe the open cut, shafts, or adit, to which it refers. — (583)</p> <p>5. Mining Claim — Annual Labor — Evidence — One claiming an unpatented mining claim, must, where the annual labor required by statute was not performed upon such claim, show that work done elsewhere was, at the time thereof, intended as the annual labor upon the particular claim, and was- of the character and amount satisfying the statute. — -(585)</p> <p>Where the plaintiff asserts that work done in a tunnel, at a distance from his claim, was intended to develop such claim, and as- the annual labor thereon, the defendant is entitled to a full and fair cross-examination upon the question of plaintiff’s intention, and to show, if he can, that the work done in the tunnel was really intended for the development of a group, including many other lodes than that in controversy, and was not sufficient in amount to meet the requirements of the statute. — (585, 586)</p> <p>6. Mining Claims — Adverse- Suit — Pleading—Forfeiture— In a suit to support an adverse claim, the defendant, under a general denial or its equivalent, may show non-performance hy the plaintiff of the annual labor required by statute, upon his claim, and the consequent forfeiture. — (587)</p>