Volume 56 — Colorado Reports

<p>1. Constitutional Law — Article XX, is a grant of power to the inhabitants of the city and county of Denver to do what it specifically states they may do, and what is necessarily implied from such express grant.</p> <p>2. Denver — Amendment of the Charter — Under secs. 4, 5, of art. XX of the constitution the inhabitants of the city and county of Denver are given the exclusive power to amend their charter, and are entitled to demand the submission of anything which falls within the definition of an amendment. A charter must be complete in itself, and a proposition for the amendment of twenty sections out of three hundred and sixty, for the repeal of twenty sections, and the addition of twenty sections, leaving approximately three hundred sections untouched; which is germane to the subject of municipal government; which fails to provide for the appointment or election of many officers and employes required in the existing charter, or their duties or salaries; which makes no provisions as to the civil service, the fire and police department, the management of municipal finance, public utilities, and the control thereof, the public health, franchises and public improvements, must be regarded as amendatory to the charter, and not as a new charter.</p> <p>3. -Marnier of Submission of Amendments — At the same election were submitted (1) propositions for a commission form of government, in lieu of that before existing, and (2) a separate proposition for the election of commissioners to exercise the powers and discharge the duties prescribed by the first. The first proposition declared, as its final proposition, that it should not go into effect until an amendment to the charter should be adopted “providing for commissioners to assume the duties herein provided for, and designating the time when they should take office.” Held that the circumstance that the adoption of the commission form of government was contingent upon the election of commissioners did not invalidate the measure.</p> <p>The proposition for a commission form of government provided regulations concerning the legislative functions of the commissioners; declared that certain acts and certain omissions should be sufficient cause to declare a vacancy in the office of the commissioner; prohibited the exercise of the veto by the mayor; provided for a reduction in the number of certain other officials. The other proposition provided for a change in the time of municipal elections; prohibited political parties from naming candidates; and increased the tei'm of office of the election commissioners provided for in the existing charter. Held that these sevei’al provisions were only parts of and incidents to the general scheme proposed by the amendments, necessary to a complete government under the commission form, and germane thex’eto, and although the existing charter provided that whenever any separate or alternative proposition for the amendment of the charter were to be submitted the ballot should be so framed as to enable the voter to expx-ess his intention in regard to each proposition, it was held that the substance of this provision was complied with, though the ballot was so framed that the voter was afforded opportxxnity to vote only for or against each of the two propositions as a whole, and not for or against any of the several distinct provisions thereof.</p> <p>Though the official ballot was so fx'amed as to disclose a strong partiality for the commission form of government, and to be in some sort ixx the nature of a campaign document, yet inasmuch as nothing appeared to show that any voter was misled by it, it was approved.</p> <p>4. --Publication of Notice of Election Upon Charter Amendments— The ordinance submitting to a vote of the people eex-tain amendments to the charter was signed by the mayor and council January 24th, and was published January 25th. The text of the amendments, and a call for the election was published January 24th, January 31st and February 7th, as required by the charter. It was contended that the first publication of the call for the election was a nullity, because the ordinance which fixed the date of the election was without effect, under the charter, until published.' But the election being a special one and no provision being made, either by the constitution or the charter, that such an election must be called by ordinance (art. XX, sec. 5; charter, sec. 179), the call for the election, though contained in an ordinance, was held properly and effectually published in advance of the publication of the ordinance.</p> <p>5. Maxims — Surplusage Does not Vitiate — When a thing is done in compliance with the mandate of the constitution, other things done at the same time in excess of the requirements of the constitution may be rejected.</p> <p>6. Evidence — Judicial Notice, taken that the commission form of government for municipalities has of late years been adopted in many cities of the United States.</p> <p>7. Commission Form oe Government — Municipal Corporations, analyzed and its differences from the form heretofore commonly adopted set forth.</p>

<p>1. Appeals — Stipulation of Council as to the Laio, will not be accepted as binding the court.</p> <p>2. -Former Judgment not Appealed — What is declared as the law by the district court, in a former judgment in the same cause from which no appeal was prosecuted, will, with the stipulation of counsel to the same effect, be accepted in the court of review, as conclusive.</p> <p>3. Equitable Assignment — Trust Fund — No particular form of words is required to create.</p> <p>4. Contbacts — Construed—A contract by an irrigation district with a firm of contractors, for the construction of an irrigating ditch, provided (see. 2) That the work should be1 commenced within a certain time and prosecuted uninterruptedly, with a force sufficient to insure its completion by a day named, and that the contractors should pay a stipulated sum, as liquidated damages, for each day’s delay. (Sec. 12) That if the contractors should fail to comply with the provisions of see. 2, or should fail in other specified particulars, the district board might require them to discontinue work; that the contractors should immediately comply with this notice, and should forfeit the contract; that the board might then advertise and let a contract for the completion of the work, and charge the cost thereof to the contractors. (Sec. 16) That the contractors should be subject to the statute regarding liens for labor and materials, and indemnify the board against all legal claims or liens upon the work, for labor or materials furnished to the contractors; and the board should charge the same to the contractor as so much paid on the contract. (Sec. 20) That monthly payments should be made on the 15th of each month of eighty-five per cent of the amount due up to and including the last day of the preceding month. (Sec. 21) That when the work was completed and accepted, the board should cause a final estimate to be made of the amount and value of the work; that there should be deducted all previous payments, all damages and other proper charges not before charged to the contractors, the balance to be paid to the contractors at the expiration of sixty days from the completion of the work. Held that under sec. 12 the district board in case of the contractors’ default were entitled to charge against them, not merely the cost of advertising and letting a new contract, but the cost of the work performed under such new contract, of which the advertisement and letting were a mere incident; that the district were .entitled to recover from the contractors all damages proximately resulting from their default; that the fifteen per cent of the contract price retained under see. 20 was not to be regarded as a fund contemp-lated and provided for under see. 16; that though the contract failed to specify for what purpose the fifteen per cent was retained, it was clearly not retained for the sole purpose of protecting the district against creditors of the contractors; that, read in connection with see. 21, it was apparent that the intention of the parties was that the contractors should receive only so much of the fund so retained as they should have earned, after deducting all damages suffered by the district by reason of any breach of the contract on their part.</p> <p>4. Ceeditoe’s Bills — Will Not Lie, to reach assets of the debtor which he cannot recover in his own name.</p> <p>5. Statutes — Construed—The statute requiring an irrigation district to exact a bond with sureties from those to whom contracts are awarded for the construction of canals and the like does not exclude the district from other measures of protection e. g. retention of part of monthly estimates, or the like. (Rev. Stat. § 3462.)</p>

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

<p>Action commenced before a justice of the peace. Both in that court and upon appeal to the county court judgment went for the plaintiff. The abstract of the record being imperfect, and the testimony appearing to be in equilibrio, the court refused to disturb the result.</p>

<p>Error to Larimer District Court. — Hon. Jas. E. Garrigues, Judge.</p>

<p>1. Appeal from Justice — Issues—Uoio Ascertained — In an action originating before a justice of the peace, there being no written pleadings, the plaintiff’s theory of his case is ascertained from the proceedings upon the trial.</p> <p>Action for the value of a colt alleged to have been killed by one of defendant’s trains. On appeal to the county court there was a verdict and judgment for plaintiff, for an amount, which, as contended by plaintiff’s counsel, included interest on the value of the animal. But only under the act of March 14, 1902, (Laws 1902 c. 1, Rev. Stat. secs. 5480-5496) was plaintiff entitled to interest. Held therefore, that the action must be regarded as one founded upon the statute in question, and that statute having been declared unconstitutional, the judgment was reversed.</p> <p>2. Appeal — Admissions of Counsel — Effeet—The contention of counsel as to the manner in which the jury arrived at their verdict, accepted, and the judgment founded thereon.</p> <p>3. Interest — When Allowed — In an action against a railway company for the negligent killing of live stock the plaintiff is not, in the absence of statute, entitled to interest.</p>

<p>1. Parties — Defendants—Public Trustee — The public trustee may be made a defendant to a bill to vacate and set aside, on equitable grounds, a deed of trust in which he is named as a trustee.</p> <p>2. -Defendants Improperly Joined, the plaintiff is entitled to dismiss.</p> <p>3. Pleading — Complaint—Cause of Actio» — Deed of lands to the public trustee expressed to be for securing to one Lawrence a promissory note for the principal sum of $1,800.00. The grantor therein alleged that the loan was made for the erection of a dwelling on the premises; that though he had completed the house he had received but a portion of the loan; that the creditor was nevertheless insisting upon the deed of trust as entitling her to the full amount named therein. Prayer that, the creditor surrender the note and cause the deed to be cancelled, on payment of the amount received, or pay the residue of the promised loan. Held to state a cause of action, and but one cause of action.</p> <p>4. -Demurrer Sustained — Effect. Demurrer sustained for misjoinder of defendants does not terminate the cause as to those defendants who are proper parties. The plaintiff may discontinue as to those improperly joined, and thus relieve the complaint of all objection.</p> <p>5. Deed of Trust — Relief Against — Defendant held a deed of trust upon lands of plaintiff expressed to be for securing the payment of a certain sum with interest, at a certain date. In fact the loan was made with an agreement that the amount named should be advanced for the erection of a dwelling on the premises described, in installments as the work proceeded, and that the whole sum named should be paid when the dwelling was completed. Having advanced only a part of the stipulated loan, the creditor, though the building was completed, claimed that the deed of trust was a valid security for the whole sum named therein. Held that plaintiff was entitled to relief; that defendant might be required to cause the deed of trust to be released, upon a payment of the amount advanced, with interest, or to complete the loan to the stipulated amount.</p>

<p>Insubance — Insurer’s Right of Subrogation — The insurer who indemnifies the assured with full knowledge of an antecedent adjustment between the assured and the party causing the injury, cannot recover from the insured under.the subrogation clause of the policy.</p>

<p>1. Teial, — Pleading and Evidence — Doubts as to whether the evidence for the plaintiff varies from the material allegations of the complaint are to be resolved in favor of the sufficiency of the pleading.</p> <p>2. Appeals — Substantial Justice Accomplished — The complaint alleged that plaintiff was the owner of certain hogs, of the value etc.; that one H. sold them to the defendant, and the two eonvei’ted them, praying judgment for the value. Plaintiff’s testimony tended to. show that he himself sold the hogs to H., acting as agent for defendant. Verdict and judgment for plaintiff. On appeal it was objected that the complaint sounded in tort, and that plaintiff had been permitted to recover upon an alleged contract. Considering that the complaint demanded only the value, asking nothing for the alleged tort, that the defenses pleaded by defendant were available to him, whatever might be the frame of the action, and that defendant was not misled by the allegation of a wrongful conversion, defendant’s contention was held without merit.</p> <p>3. Pbincipai, and Agent — Duty of Those Dealing with Agent to Inquire as to His Authority — One dealing for the first time with the agent of another, acting within the apparent scope of his authority is not affected by the secret instructions of the principal, nor is he bound to make inquiry as to the terms of the agency or the extent of the agent’s authority.</p>

<p>1. Beokee — Right to Commissions — If the broker, employed to ñnd.a purchaser for his client’s property, produces one ready, able and willing to purchase upon terms accepted by the client, he is entitled to his commission, even though, through the fault of the client, no sale is effected.</p> <p>2. Tbial — Pleading and Evidence — Variance—Defendant who goes through the trial of the cause without suggesting a variance between the complaint and the evidence offered to sustain it, will not be heard to make the objection as the ground of a motion for a new trial.</p> <p>3. Appeals — E armless Error — Where the result must have been the same whether the cause were tried upon the plaintiff’s theory of the pleadings, or a different theory afterwards urged by defendant, a variance alleged between the pleadings and the evidence is immaterial.</p>

<p>1. Corporations — Contract with Director — Validity—Wood and two others were the directors of the defendant corporation, which had been organized for the purpose of constructing and operating a system of reservoirs and canals for the' irrigation of lands. Wood had initiated proceedings for securing water rights, reservoir sites, and ditches, for the irrigation of certain public lands, afterwards acquired by those interested in the corporation. A contract between Wood of one part, and the corporation of the other (only the other directors voting thereon), by which Wood was to assign to the corporation his interest in such water rights, reservoirs and ditches in consideration of certain shares in its capital stock, Wood at the same time agreeing to purchase other shares at par, to be paid for as called by the directors, no call to exceed a certain percentage in any one month. Held, as between the corporation and Wood, and between creditors and Wood, an enforcible contract; and that, the shares being charged to him on the books of the company, and certificates issued therefor, Wood was entitled to vote these shares, though the certificate was retained by the company as collateral security for the performance of his engagements; and that Wood’s assignees of such shares succeeded to his right.</p> <p>2. -Stockholders — Bight to Vote — Under Rev. Stat. secs. 850, 873, a stockholder in a corporation is entitled to vote upon the shares held by him, at all meetings of the stockholders, even though the stock is not full paid, and though the corporation retains the certificates to secure payment.</p> <p>3. -By-Laws — It is not within the power of a corporation to declare, through a by-law, that only such stock as has been full paid shall be represented and allowed to vote at stockholders’ meetings, because in conflict with statutory provisions.</p> <p>4. -Amendment of Articles — Stock Vote Bequired — Where an amendment proposed to the articles of association of a corporation fails to receive the vote of two-thirds of the stock then in good faith outstanding it is not lawfully adopted and is without effect. (Rev. Stat. § 882.)</p> <p>5. Estoppel — By Conduct — A corporation which accepts a proposal to purchase its stock, treats it for years as a valid subscription, and receives large benefits thereunder is estopped to deny its validity.</p> <p>6. EQUITY' — Jurisdiction—A court of equity may annul and set aside an attempted amendment of the articles of association of a corporation, which the corporate authorities have declared adopted, where in fact such amendment failed to receive the vote of the number of shares required by statutes. Rev. Stat. sec. 885.</p>

<p>District Court — Appeal from County Court — Trial de Novo — In an appeal from the county court to the district court the trial is in all respects de novo. The findings of the county court are not controlling.</p>

<p>1. Water Eight — Abandonment—Abandonment consists of two elements, act and intention.</p> <p>2. -Evidence — Burden of Proof. Whoever asserts the abandonment of a water right has the burden of proof. Mere non-use, for a period less than the statute of limitations, of water to which one has an adjudicated priority, is not sufficient to establish an abandonment. Non-use for a considerable time, with acts tending to show an intention not to resume it, may constitute abandonment.</p> <p>The evidence examined and held to show that the right in question had been abandoned.</p> <p>3. -An Adjudicated Priority for the Use of Water, may be lost by abandonment.</p> <p>4. Injunction — When Allowed, to restrain the assertion of an abandoned water right or the diversion of water thereunder,</p>

<p>1. Conveyance — Reference to Plat — Construction—Conveyance of lands by reference to a plat is to be construed in connection with the plat, for the purpose of identifying the premises conveyed.</p> <p>Other evidence may be received not inconsistent with the plat.</p> <p>Where a declaratory statement of the subdivision of lands differs from a plat filed therewith, the plat governs.</p> <p>The proprietor of - eighty acres of land sub-divided it into five acre tracts, causing a statement or certificate of the subdivision to be filed in the office of the recorder of the county, accompanied by a plat. The plat showed a street four rods in width running from north to south through the center of the tract, the lots being upon each side thereof. The certificate described the lots as “twenty rods, fronting on said street, by forty rods deep east and west, said measurements running from the center of the street; but the above described roadway being reserved for the use of the public forever.” A conveyance of the west half of one of the lots, lying on the east side of the street was held to carry no part of the street; but this resolution was expressly declared to be with the understanding that no part of the east half of the lot had been dedicated for or used as a public highway.</p> <p>2. -Boundary Upon Public Highway — The rule that a grant of lands bounded by a public highway extends to the middle thereof is qualified by the exception that where the title to the highway is in the state, or a municipality, title passes only to the line, and not the center of the street.</p> <p>So when the grantor, being a public corporation, holding a street for public purposes disposes of the adjacent lots for private use.</p> <p>The possible reversion provided by statute (Laws 1909 e. 212, Mills Stat. 1912, See. 7221) in ease of the vacation of the highway, is a mere contingency which may never vest and does not affect the question.</p>

<p>1. Venue — Change of Venue — Action in Pueblo District Court against The American Smelting & Refining Company. On defendant’s motion, under Rev. Code See. 18, Price was substituted as defendant. The action was for the value of ores extracted by Price from mining premises situated in La Plata County, and adversely claimed by plaintiff. Price lived in Da Plata and was never served with process in Pueblo County. He appeared only to demur, at the same time demanding a change of venue to Da Plata. Held, he was entitled thereto as of right.</p> <p>2. Pleading — Demurrer, is not a waiver of the right to a change of the venue.</p>

<p>Cbiminal Law — Malicious Mischief — In a prosecution under Eev. Stat. Sec. 1874, for injury occasioned to a public bridge, there can be no conviction, unless malice or an evil intention on the part of the accused appears. The statute has not the effect to make the mere intentional doing of an unlawful act a ci’ime, independent of any evil purpose. The act of 1903 (Eev. Stat. Secs. 5831, 5832), has no part in such prosecution.</p>

<p>1. Alimony — Jurisdiction of the County Court — In view of the provisions of section 23 of article VI of the constitution, and sections 1527, 2113 Rev. Stat., the county court .is without jurisdiction to award alimony in excess of $2,000. The decree directing the payment of alimony in monthly installments, when these installments have been discharged to the amount of $2,000, the court should enter satisfaction of the decree.</p> <p>2. Precedents — Dissenting Opinion — Remarks in a dissenting opinion concurred in by the majority of the court accepted as a precedent.</p>

<p>1. Life Insueance — Change of Beneficiary — The general rule is that there can be no change in the beneficiary without a provision to that effect in the policy. Where the policy allows such change the beneficiary named therein has an interest which is liable to be defeated, but only in the manner prescribed by the policy, the charter or by-laws of the insurer, or by statute.</p> <p>In Colorado there is no difference in this respect between policies in ordinary life companies, and those held in fraternal or mutual companies.</p> <p>2. -Notice to Insurer — Where notice to the insurer is required, a change attempted by the insured without giving such notice is ineffectual as against the beneficiary named in the policy.</p> <p>3. -Notice Excused — If the assured has fully complied with what is required of him, to protect the change of beneficiary, and by reason of circumstances beyond his control the change is not entirely consummated at the time of his death, equity will sometimes treat the substitution as complete. But an allegation that the assured resided fifty miles from the local office of the insurer, that he made one journey to such office but found it closed, and was unable to find the agmt, that he was ignorant of what was required, was a laboring man, a poor person, and unable to either read or write in English with facility, and by reason of these circumstances and the expense incident to a second journey, he failed to cause the change to be perfected, in the manner required, was held entirely insufficient.</p> <p>4. -Pm-ol Assignment of Policy — The policy named as the beneficiary, the mother of the assured, but provided for its assignment. His widow, suing thereon, alleged that the insured in his life time delivered the policy to her, as a gift, in order to provide for her maintenance, and that of their infant child; that thereafter the policy remained in her possession until the death of her husband; and that after such delivery she assisted in paying the premium accruing thereon. These facts were held insufficient to defeat the right of the mother. Gabbert J. and Scott J. dissenting.</p>

<p>. 1. Public Roads — By User, over private lands, under Rev. Stat. sec. 5787, clause 3, exist only where the user has been under claim of right, and the line of the road reasonably definite and certain. Lieher v. People, 33 Colo. 493, 81 Pac. 270, followed.</p> <p>2. Ceiminal Law — Malicious Mischief — The pulling up of one or more posts of a fence in process of erection, warrants a conviction under Rev. Stat. sec. 1874.</p>

<p>The judgment below not being supported by the testimony reversed.</p>

<p>1. Statutes — Construction—The fundamental rule for the construction of a statute is to ascertain the intention of the legislature, and to this end to give effect, if possible, to every word thereof, and as far as possible reconcile the terms employed so as to render it consistent and harmonious.</p> <p>2. -Construed — The statute, (Rev. Stat. § 5619) requires every person operating a producing mine to return to the assessor, within specified days in each year, a statement showing, among other things, the gross value of the ore extracted during the preceding year, the cost of extraction, cost of transportation to the place of reduction or sale, the cost of reduction or sale, and, “the net proceeds after deducting the above expenses;” and provides (§ 5620) that the assessor shall determine the gross proceeds of the mine for the preceding year, as well as the net proceeds, and value the mine at “one-fourth of the gross proceeds for the preceding year.” Held that in ascertaining the gross proceeds for the purpose of the valuation the assessor should deduct from the gross value of the ores produced, both the cost of transportation to the place of reduction or sale, and the cost of reduction or sale.</p>

<p>Judgment — Fraud—Relief m Equity — One appointed administratrix with the will annexed of a non-resident testatrix advises the legatees named in the will that she has no claim against the estate and will present none.</p> <p>Later, without notifying them of her change of purpose, she presents a claim and procures its allowance. The legatees, acting with diligence, are entitled to a decree vacating the order of allowance, and directing a new trial of the claim.</p>

<p>1. Irrigating Company — Carrying Water for Others, is a quasi public carrier, as well as a private enterprise. Where it has water subject to its control tona fide applicants are entitled to it, upon making tender of the lawful rate, and complying with the reasonable rules of the carrier.</p> <p>2. -Consumer — Eis Right — The right of one who is supplied with water pursuant to contract, from a ditch owned and operated by a carrier 1 company, is limited by his contract, so far as valid, and by tlie conditions" which the law imposes. He does not occupy the exact status of an independent appropriator directly from the stream. Where his contract entitles him to a specific volume of water for a particular year, without any valid limitation as to future use, and under such contract he has received the specified volume, and applied it to beneficial uses, he is entitled to the same volume annually thereafter, upon tender of the rate which the irrigating company may lawfully exact, and compliance with its reasonable regulations.</p> <p>If, after the expiration of his contract, he makes no such tender, nor any legal demand for the water, he is ill the same position as though he had never received water from the ditch. His future rights, if any, date from the time when he again contracts with the carrier, or makes a lawful demand to be supplied with water.</p> <p>And where the contract limits the consumer to a specified volume of water he is bound by this limitation. If by collusion with the employes of the irrigating company he receives a volume in excess of what is specified in the contract, making no payment for such excess, he acquires no right to such excessive volume, in subsequent years.</p> <p>But where the consumer, by the annual use of the water in a particular volume, has acquired the right to continue in the enjoyment of the same volume, a condition limiting his right, imposed upon him without his consent, and against his protest, is invalid; e. g. where a municipal corporation having acquired the control of the works of an irrigation company, requires even those who are entitled to be supplied therefrom, by reason of such former user, to enter into contracts “subject to the needs and requirements of the city” such contracts, executed under protest, are without effect to limit the right of the consumer to the volume of water before rightfully enjoyed; otherwise as to any volume in excess thereof.</p> <p>3. -Consumer Leasing His Right — Effect—A municipal corporation beneficially entitled to an irrigating ditch, and having present occasion for only part of the volume diverted, leases the excess to other consumers. Its rights are preserved, as if it had actually applied the water to beneficial uses.</p> <p>4. -Contract Entitling Consumer to a Specified Volume if Applied for by a Specified Date imposes no obligation upon the consumer. It, in effect, provides for a continuous series of annual transactions, which the consumer may enter into or not at his pleasure. To protect himself as against others applying to the company for, securing, and beneficially using the water, he must exercise the option each year at the appointed time.</p> <p>One who, having such an optional contract, disposes of his land and afterwards applies for the water when he can make no beneficial use of it, is not entitled to receive the water. To comply with the demand would be mere waste, and the demand is properly denied.</p> <p>5. Conveyance oe Land — TWhether the Right to Water Used for the Irrigation Thereof Passes depends upon the intention of the grantor, to be gathered from the terms of the conveyance; or, when this is silent, from the circumstances attending the transaction.</p> <p>6. Irrigation — Definedr—The application of water to the growing of trees upon the streets of a 'city, or trees, shrubs, grasses and the like, in public parks, is as much irrigation as the application of water to the growth of crops upon farm lands. Neither the farmer nor the municipality, using, or seeking to use water from the same source, has any right superior to the other.</p> <p>7. Different Priorities Awarded to the Same Ditch — Bights of Consumers — The general rule is that all consumers are entitled to be supplied from all the different priorities awarded to the ditch from which they are served. Where the first appropriation was for some special purpose or enterprise, and later priorities were awarded to supply a diffei'ent class, the latter would be as distinct as if the volumes of the later priorities were conveyed through different canals.</p> <p>8. Practice in Supreme Court — Judgment—Controversy between various persons claiming to be entitled to water from an irrigating canal. Decree reversed, with directions to the trial court to determine the case without further pleadings or evidence, except testimony to establish the relative rights in the different priorities awarded to the ditch, and to provide in’the decree for the payment of lawful rates of carriage.</p>

<p>1. Criminal Law — Confidence Game — Defined—The offense of obtaining money by a confidence game, denounced by Rev. Stat. sec. 1783 cannot well be so defined as to cover all possible fraudulent devices. Generally speaking, it is^a swindling operation, advantage being taken of the confidence reposed by the victim in the swindler. It includes all swindles perpetrated by any false and deceitful practice gaining the confidence of the one defrauded, e. g. maintaining an office furnished in a manner to convey the idea that a prosperous and profitable business is there carried on, and by false representations to the same effect inducing the payment of money for an interest in the supposed business, which in fact has no existence.</p> <p>2. -Evidence — Other Dike Crimes — Where the intent of the act charged is material, other transactions of a similar nature, so connected as to time, and so similar in other relations, that the same motive may reasonably be imputed to all, may be shown.</p> <p>A transaction subsequent in time to that in question may be shown, where the-other conditions essential to its admissibility exists.</p> <p>3. -Instructions, to which the accused made no timely objection cannot be assigned for error.</p> <p>4. -Harmless Error — The denial of a continuance applied for on account of the absence of material witnesses, is harmless, where upon the trial the accused calls other witnesses who depose to, substantially, the same facts proposed to be shown by the absent witness.</p> <p>So, the improper admission of evidence which in no manner reflects upon the integrity of the accused.</p>

<p>Error to Jefferson District Court. — Hon. Charles McCall, Judge.</p>

<p>1. Cbiminal Law — Instructions—Insanity—Information for burglary and larceny. Defense insanity. The jury were charged that if any of the evidence raised in their minds a reasonable doubt as to the sanity of the prisoner they should give him the benefit of the doubt; and in defining insanity the court said that if the accused, at the time of the commission of the crime, was incapable of understanding that it was a violation of “the law of God and society” he should be acquitted.</p> <p>Held that the allusion to the law of God, while unnecessary, was not prejudicial.</p> <p>2. -Instructions — Repetition—The court in charging the jury is not under duty to repeat itself. An instruction substantially identical with one already given is properly rejected.</p> <p>3. Evidence — Insanity—Burden of Proof — Strictly speaking the burden of proving the sanity of the accused never shifts, but remains upon the people throughout the trial. •</p>

<p>Appeal from Denver District Court. — Hon. Harry O. Riddle, Judge.</p>

<p>1. Evidence — Relevancy—Lode Location. Action to support an adverse claim. It was contended for plaintiff that defendant’s discovery shaft failed to disclose a well defined vein, or any vein at all, at the date of the record of the certificate of location. Evidence tending to show the extension upon the property, of a vein claimed to be the same disclosed in the discovery shaft, and evidence of assays from such vein, was held properly admitted.</p> <p>2. New. Trial — Newly Discovered Evidence — Must be of such character as will'probably change the result if the motion is granted.</p> <p>Ordinarily evidence to impeach a witness will not suffice.</p> <p>Where the newly discovered evidence relates to statements alleged to have been made by a witness who testified for the successful party, contradictory to his testimony, and such statements are denied both by the witness himself and another who was present when the statements are alleged to have been made, there is no abuse of discretion in denying the motion.</p> <p>3. Practice in Supreme Court — Finding on Conflicting Evidence will not be disturbed where there is sufficient in the record to sustain it.</p>

<p>Error to El Paso County Court. — Hon. John E. Little, Judge.</p>

<p>Error to Cheyenne District Court. — Hon. J. W. Sheafor, Judge.</p>

<p>Attorney — Misconduct—An attorney shown to have extorted money from a client by false misrepresentations, disbarred.</p> <p>In such case it was immaterial that the matter in respect to which the representations were made was pending in the land office of the United States.</p> <p>An attorney is held to the rule of honorable conduct even in matters having no relation to the practice of his profession.</p> <p>The request of the complaining party that the proceeding might be discontinued, “inasmuch as his differences with the attorney had been composed” was disregarded.</p>

<p>Error to Denver District Court. — Hon. Harry O. Riddle, Judge.</p>

<p>1. Master and Servant — Duty of Master to Warn Servant, of any fact or condition within his knowledge which may imperil the servant, and of which the servant is ignorant. Servant is injured by a latent defect in the master’s appliances, of which, the master having notice, fails to inform him. The master is liable.</p> <p>2. Evidence — Competency—The question being whether certain holes in a “goose-neck” had been enlarged, a “stiff-leg,” to which it had been attached, in use, the holes in which were of the size of the enlargement, was offered for plaintiff, with the contention or suggestion- that the two could not have been attached, and used in this manner, unless the holes in the goose-neck corresponded with those in the stiff-leg. It was objected that, since the accident which was in question, the stiff-leg had been exposed to the weather for four years, and that by shrinkage the holes therein would be enlarged, and that for this reason, and because after the injury the stiff-leg had been used, it was error to permit the stiff-leg to be shown to the jury. The evidence as to the effect of the exposure being conflicting, and there being evidence that the use of the stiff-leg had not changed its condition, held there was no error in allowing the stiff-leg to be exhibited to the jury.</p> <p>3. Practice in the Supreme Court — Verdict Supported, by Sufficient Evidence, though conflicting, will not be disturbed. The credibility of witnesses will not be determined in the court of review.</p> <p>4. -What May be Assigned for Error — -Excluding a question already substantially, answered by the same witness, is harmless, even if error.</p> <p>5. New Trial — Misconduct of Counsel — Intemperate remarks of counsel, in a wrangle with his-adversary, not of a character to influence the jury, are no grounds for a new trial.</p>

<p>Coepoeatioiís — Foreign—Annual Report — Liability of Directors — A corporation organized under the laws of another state and doing business in Colorado is under duty to file the annual report required by Rev. Stat. sec. 911 even though it has failed to file any copies of its charter, or any certificate of its principal place of business and the name of an agent upon whom process may be served, as required by sections 916, 917.</p> <p>The limitation of one year prescribed in section 911, begins with the expiration of the period of sixty days next succeeding the first day of January, allowed for presenting the report.</p> <p>The directors are liable for all debts contracted by the corporation during the year next preceding that date.</p> <p>Whether the secretary of state may refuse to receive the annual report of a foreign corporation which has assumed to do business here without compliance with Rev. Stat. § 916, 917, Quaere.</p>

<p>1. Mechanics’ Liens — Statement of Lien — Time of Filing — Under Rev. Stat. see. 4033, no lien can be allowed for material furnished or labor performed towards the erection or completion of the structure unless the statement required by that section is filed before the expiration of two months from the completion of the building or structure.</p> <p>2. -When Is the Structure Complete — The addition to a smelter, after it is put in operation, of conveniences which are not a necessary part of the plant, and without which it can be operated e. g. trackage facilities for handling ore, buckets and screw conveyors, or a refinery, does not extend the period within which the statement must be filed.</p>

<p>1. Criminal Law — Evidence—Competency—In a prosecution under Rev. Stat. sec. 1646, for using anv instrument for the purpose of procuring an abortion, it is error to permit the woman to testify that before she resorted to defendant, a third person had told her that the accused was a doctor who would help her out of her trouble. Gabbert J. dissenting.</p> <p>A card upon which defendant’s name was written by such third person and delivered to the woman, was held admissible, in explanation of how the woman came to go to defendant’s office. So a request left by the woman with defendant’s wife to have him call her up.</p> <p>2. -Instructions — An instruction which, without calling the attention of the jury to the evidence, informs them that they are “not at liberty to disbelieve as jurors, if they believe as men,” is error. Garrigues, Hill and Scott, JJ.</p> <p>3. -Information — An information under Rev. Stat. sec. 1646, for using an instrument to procure an abortion, -which contains no allegation as to the manner of using the instrument, and no charge that it was used upon any person, but only that it was used with intent to procure the abortion of a, woman named, is bad. Garrigues, Hill and Scott, JJ.</p>

<p>1. Contributory Negligence — Effect—One cannot heedlessly rush into a known danger, and then hold another, though negligent in causing the danger, responsible for the consequences.</p> <p>2. -Example — Plaintiff in going to her home on a dark night was injured in attempting to jump over a ditch in one of the public ways of the city. She knew of the ditch and its location. There were several safe ways by which she might have reached her home without crossing the ditch. There was no emergency requiring her to proceed with haste, or to incur any danger. Eeld, she was guilty of contributory negligence barring her action against the city.</p>

<p>1. Criminal Law — Information—Verification—Waiver—Where an accused person goes to trial, making no objection to the information, he waives any defect in the verification thereof. Objection first made in a motion for a new trial is too late.</p> <p>2. -Attempt to Murder — Statute Construed — In a prosecution under Eev. Stat. sec. 1658 it is not required that, in order to sustain a conviction, an attempt to commit murder in the first degree should be shown. The statute applies to murder in either of the degrees.</p>

<p>1. Constitutional Law — Poioer of the Legislature — The power of the legislature to prescribe the procedure for raising the public revenues is plenary, except as limited by the federal and state constitutions. No act will be declared invalid, unless its repugnance to the fundamental law is clear beyond a reasonable doubt.</p> <p>The general assembly may not destroy the office of county assessor, but may prescribe that the work of the assessor may be corrected, supplemented, or revised, e. g. by a central body, with power to bring the taxable property in each county to its full cash value, for the purpose of taxation.</p> <p>They may not relieve either the state or county board of equalization of the duties which the constitution imposes upon these bodies respectively, or delegate those duties to others.</p> <p>A valuation, however low, which is equal and uniform, is a just valuation, and meets the constitutional requirement; but under sec. 2 of art. X of the constitution the general assembly may provide a .plan by which all property shall be assessed at its full value.</p> <p>2. State Boaed op Equalization — Powers—The primary valuations of property in the several counties ascertained and reported by the agencies appointed by law for that purpose, must, by the state board of equalization, be considered and dealt with as entireties.</p> <p>After the state tax commission has completed its labors, the state board of equalization meets at the time and place designated by the statute, for the purpose of equalizing the valuation of property among the several counties. In this matter it is supreme, save that it may not change the aggregate of the total valuation of all the counties. It may decrease the valuation in one or more counties, but only by a corresponding increase in others, merely correcting inequalities.</p> <p>In order to authorize an increase in the valuations made by local authority, actual notice to the individual tax-payer is not required. The statute fixing the time and place of the meeting of the board is, of itself, notice.</p> <p>3. State Tax Commission — Constitutionality—-Nothing in the constitution prohibits the legislature, either directly or by necessary implication, from investing such a body with the general supervision of the assessment and collection of taxes, with power to revise the action of county assessors and other officials.</p> <p>4. -Powers — The statute (Laws 1911 e. 216) as amended by the act of 1913 (Laws 1913 c. 125) invests the state tax commission with authority to cause all property to be assessed at its actual and full cash value, and to that end confers upon that body general supervision over the administration and enforcement of the laws for the assessment, levy and collection of taxes; and like supervision over all county offices and boards.</p> <p>Two methods are prescribed by which the board may act; one by subdivision 6 of sec. 13 of the act of 1911 and the other by see. 31.</p> <p>By the first provision the board is authorized to reappraise classes of property, increase or decrease the valuations made by the assessors, and require omitted properties to be placed upon the rolls.</p> <p>By the latter provision the commission may deal with the aggregate values in the several counties, as fixed by the assessors, or equalized by the county boards of equalization.</p> <p>The power conferred by the first provision can be exercised only prior to the action of the county boards of equalization. As to the latter, it seems immaterial whether the tax commission act before or after the county board.</p> <p>The wisdom, policy, and necessity of the statute vindicated.</p> <p>5. -Notice to Taxpayer — The notice to the taxpayer required by sub-division 7 of sec. 13 is to be given only when the tax commission is proceeding under subdivision 6; the statutory provision in question has no application when a horizontal increase of the properties in the county is proposed, or an amount to be added.</p> <p>To such increase it is not required that the individual tax payer shall have notice. Sections 9, 15, 30, 31, of the act, sufficiently pi'escribe the time and place of the meeting of the board for the purpose of the increase, and this is a sufficient notice. Gale v. Btatler, 47 Colo. 72, distinguished.</p> <p>Otherwise, when it is proposed to increase the valuation of the property of an individual taxpayer. In such case he must have actual notice.</p> <p>6. Statutes — Legislative Construction — The amendment to the constitution proposed by the act of June 5, 1911, (Laws 1911 c. 110) and rejected by the people, is not to be interpreted as a legislative condemnation of their own work in the statute in question.</p> <p>7. Evidence — Official Admissions as to the Law — The functions of government invested by law in a particular board are not to be interpreted, or their interpretation affected, by the theory upon which the ques-’' tion is presented by the officers of the law.</p>

<p> Original proceeding. </p>

<p>1. Estoppel — By Record — In order that a judgment shall he a har to a second action it must appear that the action in which the judgment was given was between the same parties, or their privies, and, by the record, or extraneous evidence that the question in issue in the second action was presented and determined by such judgment.</p> <p>Former Judgment Pleaded. The pleadings examined and held that the identity of the matter in issue in the two actions did not appear.</p> <p>2.. Pleadings — Judgment on the Pleadings, is not to be granted unless from the facts established by the pleadings a judgment upon the merits can be pronounced.</p> <p>3. Judgment — Record Construed — Where it appears by the record that the cause was heard and determined on defendant’s motion for judgment on the pleadings, the contention, on appeal, that the court heard and considered evidence aliunde the pleadings rejected.</p>

<p>Judgment reversed on tlie authority of Fehringer v. Martin Drug Co,, ante.</p>

<p>Death- — Actior For — Parties—Under Rev. Stat.,- Seo. 2056, the brothers and sisters of one who comes to his death by the negligence of a public carrier have no action.</p> <p>The phrase “heir or heirs,” in the second clause of the section, import the children of the deceased. — Hindry v. Holt, 24 Colo. 464, followed.</p>

<p>1. Criminal Law — Instructions—Reasonable Doubt — Prosecution for larceny. The jury were properly instructed as to the presumption of innocence, and as to the measure of proof required to overcome it; and that a reasonable doubt is one “naturally arising from a fair and impartial consideration of all the evidence.” In another part of the charge they were told that they were not to “resort to trivial or fanciful suppositions or theories, or remote conjectures of possible states of fact differing from that .established by the evidence,” nor “to disbelieve as jurors if you believe as men.” Held, that the charge must be considered as a whole, and that thus construed the jury could not have been misled by the clause last quoted. But this clause disapproved, and attention again called to the instruction given in Minich v. People, 8 Colo. 454.</p> <p>2. -Alibi — The defense being an alibi the jury were told that if they entertained a reasonable doubt upon this question they should acquit. Then followed a passage by which they were told that to entitle this defense tó consideration, it “must be such as to show that at the very time of the commission of the crime the accused was at another place,” and the proof “must cover the whole time of the transaction, so as to render it impos§ible” that the defendant could have committed it. The contention that by the words quoted a reasonable doubt as to the alibi was excluded, was overruled. — Wisdom v. People, 11 Colo. 170, distinguished. Hill, J., dissented.</p> <p>3. -Recent Possession of Stolen Goods — An instruction to the effect that one found in possession of property recently stolen is called upon to explain such possession, is not improper, even where, the accused offers evidence of previous good character and an alibi.</p> <p>4. -Credit to be Accorded to Accused Testifying in Sis Own Behalf — Instruction—The accused having given testimony in his own behalf, the jury were told that, in determining the credit to be accorded to him, they might consider his demeanor upon the stand, and his interest in the result of the prosecution. It was contended that to thus single out the accused, and direct attention to his interest in the result, was error; but this contention was overruled, in view of the fact that no suggestion was given as to the weight to be accorded to the prisoner’s testimony, and no intimation that his credibility should be tested by a different standard than that applied to other witnesses (Rev. Stat., see. 1984).</p> <p>5. New Trial — Misconduct of Counsel — Improper remarks of counsel in his address to the jury will not be considered, on error brought, unless objected to at the time, with a request to the court to instruct the jury to disregard them; nor unless such request is refused.</p> <p>6. Practice in Supreme Court — Verdict Upon Conflicting Evidence, will not be disturbed where there is in the record substantial testimony sufficient to support it. The credibility of the witnesses is exclusively for the jury, and will not be retried in the court of review.</p>

<p>1. Railroab Company — Duty at Public Crossing — It is the unquestionable duty of those operating a locomotive to keep a lookout in passing the streets of a village or town, or other place where, with the acquiescence of the railway company the public have for a long time been accustomed to cross its tracks. If a person, being upon the track, at such a place is injured or killed by the train, by reason of a neglect to keep such outlook, and so discover him in time to avoid the accident, the railway company is not exonerated by the exercise of all diligence on the part of the engineer and fireman, after the person is seen.</p> <p>Even though the person injured or killed is upon the track by reason of his intoxication, the company is still liable, if, by due diligence, his presence might have been discovered in time to have stopped the train and removed him.</p> <p>And this, even though such person was a mere trespasser, and where he had no right to be.</p> <p>2. Negligence — Question for the Jury — Where upon the testimony different minds may honestly draw different conclusions, the question of negligence, or contributory negligence, is for the jury.</p> <p>The evidence examined, and held that the court below erred in directing the verdict.</p> <p>3. -Pleading — The acts or omissions constituting the negligence complained of must be stated, but it is not important that any conclusion that the matter so alleged should be stated; nor that the complaint should assume to state the degree of the negligence charged.</p> <p>4. Contributory Negligence — Plaintiff Recovers Notwithstanding, when defendant knows of his peril, or by due diligence would have known of it, in time to avoid doing him injury.</p> <p>5. Teial — Pleading and Evidence — Variance—Specific omissions constituting simple negligence being charged, they- were characterized, in the complaint as “wilful and wanton.” Held, that these epithets being the expression of a mere conclusion should be disregarded, and that upon proof of simple negligence plaintiff was entitled to recover.</p>

<p>1. Criminal Law — Several Defendants — Separate Trials — Where two are indicted jointly, and there is evidence not relating to the reputation, admissible as against one of them, hut inadmissible as against the other, the one against whom such evidence is inadmissible is entitled to a separate trial, as of right (Rev. Stat. sec. 1981).</p> <p>But the separation must be requested by the party against whom such evidence is inadmissible. Moore v. People, 31 Colo. 345, explained and distinguished.</p> <p>2. -Motion for Severance — Sufficiency—Waiver—Two were indicted jointly for murder. One moved for a separate trial. The motion stated “there is evidence not relating to the reputation of this defendant, which would be material and admissible as to this defendant if tried jointly with the said S., but * * * immaterial and inadmissible as to this defendant if tried alone,” not in any manner giving even the substance of the evidence in question. The form of the motion was not approved, but no objection to its sufficiency being made below, and the truth of the allegations thereof appearing by the record, the denial of the motion was held fatal error. Gabbert, J., and Bailey, J., dissented.</p> <p>3. -Evidence — Confession of one of Several Tried Jointly, is admissible as against him, but not, as to a co-defendant who has not expressly or impliedly admitted its truth.</p> <p>4. -Admissions — Silence—Whether . silence gives consent to the ■ statements of anotlier depends upon the attending circumstances. If it appears that the party did not intend to commit himself no inference of assent is to be drawn from his silence.</p> <p>5. -Inadmissible Evidence Received Over Defendant’s Objection, is error. It is not necessary that the accused should present an instruction as to the matter, in order to avail himself of this error. Gabbert, J., and Bailey, J., dissented.</p> <p>6. -Bill of Exceptions Construed — Cook and Seiwald were jointly indicted for wilful murder. They employed separate counsel, and each sought to exonerate himself by accusing the other. They quarreled throughout the trial. The bill of exceptions alleged that Seiwald was “sworn and examined on behalf of the defendants.” He was examined in chief by his own counsel. Held, that the bill of exceptions must be construed in the light of the whole record, and thus construed it must be held that Seiwald was called for himself and not for Cook.</p>

<p>1. Mandamus — Default—A default entered in mandamus proceedings, and judgment thereon declaring the alternative writ peremptory, without hearing testimony is in direct conflict with see. 344, Code of Civil Procedure, R. S. 1908. Sec. 350 of the code has not the effect to do away with the necessity for a hearing, and testimony.</p> <p>2. -Damages, are not to be awarded where there is no allegation of damages.</p>

<p>Error to Morgan District Court. — Hon. H. P. Burke, Judge.</p>

<p>1. Ejectment — Complaint—A complaint in ejectment alleging ownership in fee and the wrongful detainer of the lands, is sufficient, though it omits the allegation of ouster. (Mills’ Code sec. 267, Rev. Code sec. 286.)</p> <p>2. Evidence — Presumptions—Town site entered under the act of congress. The mayor executed a deed of a lot in the townsite to a person of the same name. The presumption is that the officer performed his duty.</p> <p>An entry in pencil is found in the tax list, describing a lot not mentioned in the assessment roll. No increase in the valuation, or tax, or other change from what appeared in the assessment roll being made. It will not be presumed that the entry in pencil was made by the treasurer, as a listing and valuation, pursuant to Rev. Stat. sec.'5706.</p> <p>3. Townsite — Entered Under Act of Congress — Mayor’s Deed, to himself, conveying a lot in the townsite is voidable and not void. It is impeachable, for the reason assigned, only in a direct proceeding, by a beneficiary in the trust.</p> <p>4. Taxation — Necessity for Assessment — An assessment of property is indispensable to the validity of a tax levied thereon.</p> <p>5. -Alteration of Tax List-^Pencil Interlineation — The tax list as originally prepared described “E 25 feet of Lot 8,” in a certain block. There appeared, in pencil, next before the figure “8” in this description, the characters “7 There was no increase, in the tax list, of the</p> <p>valuation set down in the assessment roll. Every entry in ink in the tax list agreed with the assessment roll. The court declined to accept the pencil insertion in the tax list as a listing and valuation by the treasurer under Rev. Stat. sec. 5700.</p> <p>6. Tax Titles — Void Deed — A treasurer’s deed assuming to convey lands, a part of which it appears were never assessed is void.</p>

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

<p>1. Constitutional Law — Particular Statutes — The last proviso to section 3460 of the Revised Statutes providing that the county treasurer shall receive for the collection of irrigation district taxes such amount as the directors of the district may allow, not less than $25, nor more than $100, it was contended that the effect of this was (1) to commit the determination of the officer’s fee, not to the general assembly, as required by sec. 15 of article XIV of the constitution, but to the directors of the district; and (2) to place the burden of a service rendered to particular individuals, and beneficial to them alone, upon the entire county, in violation of see. 14, of art. II. But it was held that the constitution does not require that a fee shall be charged for every official act; that the statute fixes the maximum and minimum of the fee, not leaving it entirely to the discretion of the district; that the general assembly may have been of the opinion that by reason of the operations of the irrigation district, and the watering of the lands therein, there would be an advance in the amount and value of taxable property within its limits, and the total valuation of the county so much enlarged that any extra expense occasioned by the increase of labor imposed upon the ti'easurer would be more than met, without any increase in the levy, and that in this way those x'esiding without the district would in reality pay nothing on account of such extra service of the treasurer; and the facts upon which the unconstitutionality of the statute was so asserted being shrouded in doubt, and no other contention against its constitutionality being made, the contention was overruled.</p> <p>2. Statutes — Construed—Commissions Collected by County Officers— The fees and commissions prescribed by Rev. Stat. sec. 2537 are collected by the ti’easurer, not as his compensation for the particular sei’vice, in any case, but for the creation of a fund out of which his salary is to be paid.</p> <p>3. -Irrigation District Taxes — Under Rev. Stat. sec. 2537 the county treasurer was required to chai’ge and collect commissions upon moneys x’eceived by him for irrigation distl’ict taxes, under Laws 1901, e. 87, secs. 19-20. The statute makes no distinction in this respect between these and other taxes. After the act of May 3rd, 1905, took- effect (Laws 1905 c. 113) and until the amendment of 1907 (Rev. Stat. sec. 3460), no commission was chargeable. Since the act of 1907 commissions are to be collected upon irrigation district taxes, according to the rate prescribed by Rev. Stat. sec. 2537, and go into the fee fund and pass thence to the treasurer on account of his salary.</p> <p>4. Irrigation District — Proceeds of Bonds — Commissions—The proceeds of the sale of the bonds of an irrigation district come into the hands of the treasui’er of the county in which the office of the district is located, not as county treasurer, but as ex-officio treasurer of the district. No commissions are to be charged thei’eon.</p>

<p>Constitutional Law — Particular Statutes — The last proviso to sec, 3460 Eev. Stat., is not in contravention of sec. 14 of art. II or sec. 15, art. XIV of the constitution. If the general assembly have by the last section authority to establish the fees of county officers for their services, the amount and form of the award is in the legislative discretion.</p>

<p>1. Estoppel — By Conduct — Land owner conveyed to another a right of way over his lands, for a ditch, the conveyance not prescribing the width of the way. The ditch was constructed under the land owner’s eye, and with frequent suggestions from him. Held that the land owner must be regarded as having consented to the width and depth of the ditch, and the ground occupied thereby.</p> <p>2. Easement — Implied Incidents — Every grant carries with it, by implication, whatever is necessary to the enjoyment of the thing granted. One entitled to maintain an irrigating canal over the lands of another is also entitled, as of right, to enter upon such lands for the repair and maintenance of the canal, but only at the time and to the extent necessary for the purpose, and without occasioning unnecessary inconveniences to the land owner.</p> <p>The right is limited by the necessity which creates it. Plaintiff was entitled by grant of defendant to a way sixteen feet in width for a ditch over defendant’s land. A decree permitting the absolute use by plaintiff of twenty feet of ground on either side of this way, and enjoining defendant from interfering with the use of the same by plaintiff, was reversed, because such enlargement of the way was unnecessary, and a manifest interference with the right of the land owner.</p>

<p>1. Statutes — Construed—A statute (Gen. Stat. 1883, sec. 2988) prohibited the obstruction of a public highway, without providing any penalty. An amendment (Rev. Stat., sec. 5826) imposed a penalty, and in addition provided that the offending party should be “liable to any person * * * 'in a civil action for damages resulting.” Held, that a person injured by the obstruction ■ of a highway, preventing access to his hotel, or rendering access to his other premises less convenient was entitled to recover the damages so occasioned.</p> <p>Sec. 2477 of the Revised Statutes of the United States is an express dedication of a right of way for public roads , over lands of- the public domain not reserved for public uses. The acceptance of the grant may be effected by public use. Such use, confined to a reasonably definite and certain line, creates an easement affecting all subsequent entry-men and claimants.</p> <p>2. Public Highway — By User — The use by the public of a certain and definite way for more than thirty years, begun while the lands traversed are part of the public domain, and continued afterwards, without objection from the entryman, is sufficient to show an acceptance by the public of the grant made by the act of Congress (Rev. Stat. U. S., sec. 2477).</p> <p>3. Injunction — Obstruction of Public Highway, preventing access to a public house, and interfering with the resort of the guests of such hotel to places of interest in the neighborhood, the wrong-doer threatening the continuance of the obstruction, affords ground for an injunction.</p> <p>4. -Decree — Certainty—A decree enjoining the obstruction of a public highway must define such highway with reasonable certainty.</p> <p>The decree affirmed save as to the description of the road, and the cause remanded with directions to take further testimony, if necessary, in order to definitely describe the highway, and to amend the decree accordingly. Costs divided one-fifth taxed to defendant in error and the residue to the plaintiff in error.</p>

<p>Irrigation — Adjudication of Priorities — Decrees in Different Districts —Effect—Under Rev. Stat., secs. 3313, 3314, a decree adjudicating the priorities to the use of water for irrigation in, one water district, not appealed from, nor in any manner assailed, becomes, after the lapse of four years, conclusive as to all the ditches in the different districts of the same irrigation division. Fort Lyon Canal Co. v. Arkansas Valley Co., 39 Colo. 332, followed.</p> <p>Defendant by decree entered December 10, 1883, in water district No. 8, was awarded a priority from January, 1879. Plaintiff, by a decree entered October 18th, 1889, in water district No. 23 was awarded a priority from May 10th, 1879. Water district No. 23 is above water district No. 8, upon the same stream, and in the same irrigation division. After the lapse'of more than four years from the entry of the decree in district No. 8 plaintiff brought an action to restrain the officials of the irrigation division and water district No. 23 from closing the headgate of his ditch, so as to permit the water of the stream to flow down to the headgate of defendant. Held, that his action was barred by the statute.</p>

<p>1. Statutes — Construction—Substantive Provisions Conflicting With Those Regulating Procedure, prevail, even though first in place or time?</p> <p>A conflict between different statutes, or different sections of the same statute cannot be raised by implication.</p> <p>2. -Constmied — Rev. Stat., see. 7095 applies only to objections which appear on the face of the will.</p> <p>3. Wills — Husband and Wife — Bight of Election — Under Rev. Stat., sec. 7070 the widow is clothed with the absolute right to one-half part of the estate of the husband at .his death, unless she consents in writing to a different provision made by his will.</p> <p>And there is no limit of time within which she is required to manifest this consent.</p> <p>4. -Probate — Effect—And the widow’s consent to the probate of the husband’s will, implied from her failure to object thereto, in no manner impairs her right under the statute.</p> <p>5. -Jurisdiction of the Court of Probate — When there is presented for probate the will of husband or wife assuming to deprive the surviving spouse of his or her moiety of the estate, and the consent of the surviving spouse has not been given in writing, the county court is without jurisdiction to admit the will to probate, save subject to the right of election of such survivor; and this,'no matter what may be the cause or occasion of the absence of such consent.</p> <p>Where the survivor’s consent is not given, he or she is deemed to elect to take under the statute.</p> <p>6. -Impediments to Election — Where the will of the husband, after specific legacies to others, makes the wife residuary legatee she is not -in position to elect whether to take under the statute, or under the will, until in the orderly administration of the estate, all properties pertaining thereto have been discovered, inventoried, and appraised, and all legal claims against it adjusted.</p> <p>7. -Implied Election — In order to constitute an election implied from the conduct of the party, it must appear (1) that the person sought to be charged with such election was aware of the nature and extent of his or her right, and (2) that with such knowledge he or she intended to elect.</p> <p>An election by the widow is not implied from her acceptance of an allowance, to which she is entitled both under the statute and under the will; nor from her exhibition of a bill for the construction of the will, which is of uncertain terms, expressly reserving her right to elect, and this even though it should he conceded, that, not claiming under the will, she was not entitled to ask its construction.</p>

<p>Supreme Court — Jurisdiction—Franchise or Free Hold — A decree of the court of appeals upon an application to change the point of diversion of water for irrigation does not relate to a franchise or free-hold. No writ of error 'lies to review such decree.</p>

<p>1. Evidence — Admission in Pleading — Effect—Matters of fact knowingly and intentionally admitted in the pleadings cannot be afterwards contradicted in the same ease. The admission concludes the party, even though the jury find contrary to what is so confessed.</p> <p>2. Pleadings — Tender—Payment into Court — Offer of Judgment— Answer admitting the sum claimed by plaintiff, and averring a readiness at all times to pay the same “upon delivery to defendant of a receipt, etc., and to keep said tender good, defendant has deposited in this court,” the amount admitted “payable to the order of plaintiff upon delivery by plaintiff of said receipt.” Held, neither a tender nor an offer of judgment under section 312 of the code.</p> <p>3. Interest — When Allowed — The pleadings showed a balance agreed upon as due from defendant to plaintiff, upon a written contract which had been fully performed by the plaintiff on March 7, A. D. 1902. No tender of payment had ever been made, though defendant pleaded a deposit of the amount in court, “payable to the order of the plaintiff on delivery of receipt.” Held, that under Rev. Stat., sec. 3162, plaintiff was entitled to interest from March 7th, 1902.</p>

<p>1. Statutes — Construed—Tlie phrase “Credible Witnesses,” as used in Rev. Stat., see. 7071, means witnesses competent in law to establish the will.</p> <p>2. Will — Attestation—Who Competent Witnesses — The competency of the attesting witnesses to a will is not controlled by the common law, but by our statutes. Under Rev. Stat., sec. 7074, a legatee is competent as an attesting witness; but unless sufficiently attested by other competent witnesses, the will is void as to his legacy.</p> <p>The wife of a legatee is a competent attesting witness, (Rev. Stat., sec. 7267) when examined for and with his consent, she. is not disqualified by Rev. Stat., sec. 7274.</p> <p>3. Husband and Wife- — Distinct Persons in Law as Respects Property Rights — Under Rev. Stat., c. 90, the husband and wife are distinct persons, and may have individual property rights. The wife has no beneficial interest in a legacy to her husband.</p>

<p>1. Contracts — Consideration—Defendant’s husband had been in the absolute control of a bank, had absorbed its funds, and caused its failure. The wife was possessed of real estate which the husband had acquired by using his own funds with those of the bank, and conveyed to her without consideration. After the failure of the bank the wife conveyed this real property to a trustee, to secure the depositors of the bank, reciting that she was desirous to do all in her power to liquidate the indebtedness of the bank. Held, that the deed was not to be vacated, or set aside, for lack of consideration.</p> <p>2. -Construed — The deed in question recited that “the assistance of the late officers of the bank is required to assist in the realization of its assets,” and the wish and desire of the grantor that such officers “shall not be hampered or delayed by trivial or other persecutions or prosecutions, and therefore this conveyance is upon the condition that their time and attention be left for such assistance.” The deed was accepted by the trustee after consultation with the receiver of the bank. Held, the recitations of the deed do not import an agreement that the husband shall not be criminally prosecuted. Held, further that the condition expressed in the deed was a condition subsequent, and by reason of its indefiniteness as to the character, time, or duration of the services to be rendered by the officers of.the bank, and that, if given the effect to relieve them of prosecution, was illegal, was to be rejected.</p> <p>3. Deeds — Conditions Subsequent, are not favored by tbe law, and are strictly construed because they tend to destroy estates.</p>