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(185 P.)

ants have control of four shares of stock in | an incident to such right, an easement across the Agriculturai ditch, and are entitled to the defendants' land for the purpose of con160 inches of water therefrom; and that veying such water to his own lands. Susthey have control of 5,300 shares in the taining the allegation of the complaint, the Ward ditch. The answer specifically admits evidence shows that the only manner in such allegations. The theory of the defend- which water was withdrawn from Ward resants now is that the answer is not an admis- ervoir No. 1, by the plaintiff and his grantor, sion that the amount of shares named in the was through a ditch running across the decomplaint is the "only" amount which they fendants' land. This ditch connects Ward possess, and is not an admission that they do reservoir No. 1 with reservoir No. 5, mentionnot own or control a "greater" amount. This ed in the decree, which also lies upon the theory is not tenable. The allegations in the land of the defendants, one mile east and becomplaint naming the amount of the defend-low Ward reservoir No. 1. ants' stock have the same effect and should be construed to mean the same as if the amount named was described as the exact and only amount. Such was the evident intent of the plunder. The admissions in the answer are stated without qualification, and must be given the same scope as the allegations admitted. No other part of the answer places the admissions in any different light. The contention must therefore be overruled.

In our opinion, the decree conforms to the pleadings, and the contention in question is therefore overruled.

The judgment and decree is affirmed.
Affirmed.

GARRIGUES, C. J., and BAILEY, J., con

cur.

(67 Colo. 34)

KOEN et al. v. FT. BENT DITCH CO. (No. 9441.)

The last and remaining contention of the plaintiffs in error is, in effect, that certain relief is granted by the decree which does not conform to the case made out by the pleadings. This contention relates to that part of the decree which, after fixing the storage (Supreme Court of Colorado. Dec. 1, 1919.) rights of the parties in Ward reservoir No. 1, provides:

"That the plaintiff herein, his heirs, representatives or assigns, be permitted to draw therefrom at such times as they may desire, through the estate controlled by said defendants as executors, down to said reservoir No. 5, through the ditches as at present constructed, any and all said storage waters so belonging to the plaintiff, without let or hindrance from defendants."

1. WATERS AND WATER COURSES 247(1) CONSTRUCTION OF DECREE AS TO IRRIGATION

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2. WATERS AND WATER COURSES
JUDGMENT NOT IMPAIRMENT OF PREFEREN-

TIAL RIGHTS.

The complaint alleges that plaintiff and his grantor "have at all times heretofore," In view of Rev. St. 1908, § 3256, requiring covering a period of 33 years, "been allowed the owner of irrigating ditches to appoint a to draw" their waters from Ward reservoir superintendent to measure water into laterals, No. 1. The relief prayed for includes the a decree in favor of an irrigation company right "to draw said waters from said reser- against defendants, who had in a previous provoir (Ward reservoir No. 1) in the future, as ceeding been adjudged to have priority, which has heretofore been the custom in the past." construed their rights, and provided that the [6] Everything which by fair and reason-superintendent of the irrigating company should regulate the diversion into their laterals, is not able intendment may be inferred from the objectionable as depriving defendants of their averments of the complaint will be presumed preferential rights. by the appellate court, especially where, as in the instant case, the sufficiency of the complaint was not tested in any manner. 4 C. J. 745, § 2677.

[7] While the complaint does not allege how the water was withdrawn from Ward reservoir No. 1, it sufficiently shows that it could not be withdrawn otherwise than across the lands of the defendants. At any rate, the complaint was so regarded by both parties. It was assumed that, in case the plaintiff established his right to store water in Ward reservoir No. 1, he would have, as

3. JUDGMENT 518-CONSTRUCTION OF DE

CREE NOT COLLATERAL ATTACK.

Where defendants had been adjudged water priorities, the court entering such decree may thereafter construe its own decree and interpret the same, and a proceeding for such inthe court as an attack on the original decree. terpretation is not without the jurisdiction of 4. APPEAL AND ERROR

ERRORS.

1078(1)-WAIVER OF

Questions raised but not argued will not be considered on appeal.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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per second of time, it having been conceded that the award of 27.77 cubic feet to the ditch was based upon a finding that the need of each 80-acre tract was for 1.44 cubic feet per second of time.

the ditch company was adjudged entitled to Judgment was rendered accordingly, and

the control of the water in the ditch for its orderly distribution; the defendants being enjoined from interfering with such control.

Numerous errors are assigned, most of which, in the view we take of the case, need plaintiffs in error are stated as follows: That not be considered. The principal contentions of the plaintiff has neither pleaded nor proved a right in itself injured, or to be injured, by any act of the defendants; that the complaint does not state a cause of action; that the suit is a collateral attack on the McLure judgment; that the finding and decree are not supported by the evidence; that the decree operates to reverse the decision of this court in the McLure Case, and is contrary to the law of the case as established by that decision (the judgment in the McLure Case was affirmed by this court in 25 Colo. 284, 53 Pac. 1058); that the court below had no jurisdiction to enter the decree; and that the statement of the trial court that the only issue to he determined was as to whether or not the right of the defendants should and could be limited to 2.88 cubic feet of water per second of time, and the decree made upon other is

TELLER, J. Defendant in error, a mutual ditch company, owns a ditch through which water is furnished to the plaintiffs in error for the irrigation of their lands. The ditch company brought suit against the plaintiffs in error to settle a controversy concerning control of the headgates to the laterals through which water was supplied to their lands, and to have determined definitely the quantity of water which defendants were en-sues deprives the defendants of their property titled to receive.

The undisputed facts are that one of the defendants had judgment, in the year 1896, against one McLure, who then owned said ditch as successor in interest to the Kansas & Colorado Canal Company, by which judgment he was adjudged to be the owner of a right to sufficient water to irrigate a quarter section of land described in the decree, such right having been adjudicated to him, as a part of a priority of 27.77 cubic feet per second of time, by a general adjudication decree entered in the year 1895. The McLure suit was begun before the adjudication decree was entered.

and rights without due process of law, contrary to the provisions of section 25, article 2, of the Constitution of the state of Colorado, and contrary to the Fourteenth Amendment to the Constitution of the United States.

[1, 2] It is insisted that this decree takes from the defendants their preferential property rights in the decree for 27.77 cubic feet of water, and makes them subject to the whim and caprice of the superintendent or other officers of the plaintiff corporation. We do not think the decree is open to that objection. This court has many times held that every decree for a water right must be read with the understood provision that only so much water may be used as is reasonably necessary, and that every owner of a portion of an adjudged priority holds his right subject to the rights of the other holders.

The judgment perpetually enjoined McLure, his agents, etc., from in any way interfering with the full flow of water from the canal upon the lands of said Koen, "or in the application of such water to beneficial purposes and uses upon the said lands, except only so far as is necessary to regulate the flow of water in the lateral or laterals leading to the said lands in the distribution and prorating of water in the Colorado and Kansas canal among the various consumers of water therefrom holding or owning right to the use of water therefrom, at the time of the institution of this action, to wit, May 4, 1895." Section 3256, R. S. 1908, requires the ownIn this case the court found that defend-er of irrigation ditches "to appoint a superant was entitled to 2.88 cubic feet of water intendent, whose duty it shall be to measure

The record shows that counsel agreed that the adjudication decree was based upon the finding that each 80 required 1.44 cubic feet of water for its irrigation. And counsel further admitted that that quantity was proper to be named if the quantity should be definitely fixed at all.

(185 P.)

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of the use thereof.

We find no basis for the contention that this decree deprived the defendants of any part of their interest in priority No. 6 for the 27.77 cubic feet. The complaint sets up that the defendants are part owners of that priority, and nowhere in the record do we find an intimation that the ditch company denies that the owners of said priority No. 6 have rights to water superior to the later priorities adjudged to the ditch. The decree must be read in the light of the issues made and determined. So read it leaves these defendants, as far as their right to water is concerned, in the same position as they were at the beginning of the action. The purpose of the suit was to secure to the plaintiff company relief from the meddling by defendants with the headgates, and the prevention of any undue and unnecessary use of water by them.

The decree takes away no rights from the defendants, and grants no new right to the plaintiff. It is not therefore open to the objection named.

[3, 4] No ground is shown for the attack upon the jurisdiction of the court. It is the court in which the original adjudication decree was entered, and there can be no doubt of its right to interpret its own decree and to provide for its enforcement. That is all that was done in this case. It is not an attack on the McLure decree; it interprets, not reverses it, and provides for its enforcement. Nor is it unsupported by evidence. The only fact involved and upon which the decree may be said to be based is as to the duty of water, and that was agreed upon by the parties on the trial. The constitutional question raised is not argued, and hence need not be considered.

[5] Cross-errors are assigned on the sustaining of demurrers to five separate causes of action. They cover demands for annual assessments during the five years preceding the bringing of the action.

It appears that up to 1911 this ditch had changed ownership several times; that in

1911 a mutual ditch company was formed, which, in the same year, was consolidated with another mutual company, thus forming the present company, which succeeded to all the rights of the old company. The McLure decree contained the following provision:

"Provided, further, however, that the rights of the plaintiff or those claiming under him to

the use of the water aforesaid shall at all times in the future be subject to the payment by him or them to the defendant Charles D. McLure, or his representatives or assigns, of such annual assessments for maintenance of the canal which may be imposed upon consumthereto accrued prior to the acquisition of any ers of water from the said canal, whose rights title to the said canal by the said defendant McLure, which said assessment is limited, as appears by the testimony offered for the defense herein, and is found and decreed by the court to a sum not exceeding $24 per annum for each 160 acres of land."

The plaintiff in this suit sought by the several causes of action dismissed by the court to recover a greater sum than the $24 per year named in the McLure decree. The defendants contend that that decree fixed their obligation to McLure as to the annual assessments, and that all claiming under him are bound by the decree. We do not think that this contention is well founded. It appears that evidence was taken in the McLure Case as to the proper amount to be charged for the use of the canal, and the finding was that $24 a year was sufficient. It will be observed that the decree itself recites that the assessment is limited,"as appears by the testimony offered for the defense herein," etc. The finding then was that $24 was, at that time, a reasonable assessment. There is nothing in the relation of the parties which should make a judgment upon that finding perpetually controlling as to the amount of the assessment. The purpose of the finding was to make a just charge as between the parties. It would manifestly be unjust to the other consumers taking water from the ditch thus to relieve one consumer of the obligation to pay his proportion of the cost of maintaining and operating the ditch.

We are of the opinion, therefore, that the court erred in sustaining the demurrers to the five separate causes of action and in dismissing the same.

The judgment is accordingly affirmed as to so much of it as fixes the quantity of water to be delivered to plaintiff in error, and as to the injunction against him, and is reversed as to the dismissal of the five separate causes of action. The cause is remanded for further proceedings in harmony with the views herein expressed.

Affirmed in part; reversed in part.

(67 Colo. 179) MIDLAND CASUALTY CO. v. FRAME, (No. 9487.)

(Supreme Court of Colorado. Dec. 1, 1919.)

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1. INSURANCE 622(2) - ACCIDENT POLICY NOT "LIFE INSURANCE" WITHIN LAW AS TO

RIGHT OF INSURER TO LIMIT TIME OF BRINGING SUIT.

The definition of the term "life insurance" in Laws 1907, p. 483, § 73, controls the meaning of that term in section 37 of the same act, and the provision in the latter section to the effect that no life insurance company shall limit the time within which any action at law or in equity may be commenced to less than five years after the cause of action shall accrue, does not apply to an accident policy containing a provision for an indemnity in case of the death of the insured through accidental means, especially in view of Laws 1913, pp. 358, 369, §§ 60, 75.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Life Insurance.]

the insured. She had a verdict and judgment for $2,000, the full amount of the policy.

The policy was what is commonly known as an "accident policy," or "policy of accident insurance," in the usual form of such contracts, with a provision for an indemnity to the plaintiff of $2,000 in case of the death of the insured "solely through accidental means," and contained the following:

"1B. * * Legal proceedings for the recovery hereunder shall not be brought before the expiration of three months from the date of filing final proofs at the company's home office, nor brought at all unless begun within one year from the date specified herein for final proofs. If any limitation set forth herein is in conflict with the statutes of the state in which the insured resides, the said limitation is hereby amended to agree with the minimum period of limitation permitted by such

statutes."

The plaintiff did not begin her suit within one year from the date specified in the policy for final proofs. The company claims that

2. INSURANCE 1-COMPANIES PERMITTED TO it is therefore barred by the limitation of the

WRITE LIFE INSURANCE.

Laws 1907, p. 485, § 73, subd. 9, providing that it shall be unlawful for any person, copartnership, association, organization, society, order, or fraternity, except life insurance companies or bona fide fraternal, religious, or benevolent societies, to make or issue life insurance contracts, refers to both assessment and old-line companies.

3. INSURANCE 4-STATUTE DEFINING LIFE

INSURANCE NOT REPEALED.

Laws 1907, p. 483, § 73, defining life insurance, and prohibiting certain persons or organizations from issuing such contracts, was not impliedly repealed by Laws 1911, p. 422,

4. INSURANCE 4-MEANING OF TERMS NOT CHANGED BY OMISSION OF DEFINING STATUTE IN RE-ENACTMENT.

The omission of section 73 of Laws 1907, p. 453, from Laws 1913, c. 99, which re-enacted section 37 of Laws 1907, p. 456, did not change the meaning of subdivision 2 of such section 37, as to the meaning to be given the term "life insurance," although such section 73 determined the meaning of such term in section 37 of the act of 1907.

Department 2.

policy. The plaintiff answers that the policy is a "life insurance" policy, and that the limitation is void under the Colorado statute, which is as follows (S. L. 1907, p. 456, § 37):

"Sec. 37. (Prohibiting Certain Provisions in Life Insurance Policies.) On and after January 1, 1908, it shall be unlawful for any for. eign or domestic life insurance company to issue or deliver in this state any life insurance policy if it contains any of the following pro

visions:

"(2) A provision limiting the time within which any action at law or in equity may be commenced to less than five years after the cause of action shall accrue."

The company replies that the policy is an "accident policy," and not included in the term "life insurance," within the meaning of the act, and cites subsection 9 of section 73 of the same act, as follows:

"(9) Every contract whereby a cash or other benefit is to accrue to a person, or to persons, named or designated therein, upon the death of a person from cause not accidental, shall be deemed a contract of life insurance; and it shall be unlawful for any person, copartnership, association, organization, society,

Error to District Court, Chaffee County; order, or fraternity, except life insurance James L. Cooper, Judge.

Action by Jane Frame against the Midland Casualty Company. Judgment for plaintiff, and defendant brings error. Reversed, with directions to dismiss.

companies or bona fide fraternal, religious or benevolent societies, as defined by this act, to make or issue such contracts of insurance."

[1] This definition of the term "life insurance" must be regarded as controlling the meaning of that term in the other section of the same act. It follows that the limitation in the policy is not forbidden by subsecG. K. Hartenstein, of Buena Vista, for de- tion 2 of section 37. It must therefore be fendant in error.

Andrew H. Wood, of Denver (Orlaf Anderson, of Milwaukee, Wis., of counsel), for plaintiff in error.

DENISON, J. This was an action on an accident policy, so called, by the widow of

enforced.

[2] Plaintiff claims that section 73 applies only to "assessment companies," and not to a company insuring for a fixed premium. We

(185 P.)

think otherwise. That section is clearly in- [in that the body of the act shows positively that tended to refer to either sort of life insurance it is intended for the protection of girls under company. If an "old-line" company should 18, while the title limits the application specifviolate its provisions, it would be subject to ically to girls 18 years old. its penalties.

[3] Plaintiff also claims that section 73 was impliedly repealed by chapter 139, S. L. 1911. We do not think so; but, if it was that could not change the meaning of section 37.

[4] The defendant in error points out that section 73 has been repealed by the act of 1913 (S. L. 1913, c. 99), which contains a reenactment of section 37, but not of 73, and claims that, therefore, the latter can no longer be regarded as regulating the definition of "life insurance." We do not think the omission of section 73 changes the meaning of section 37. Section 75 of the act of 1907 determines the meaning of section 37 in that act. Section 37, being re-enacted in 1913, is considered as having been the law all along. Callahan v. Jennings, 16 Colo. 471, 476, 477, 27 Pac. 1055; People v. Board of Eq., 20 Colo. 220, 231, 37 Pac. 964.

It seems reasonable to presume that, if the Legislature had intended it to have a meaning in the later act different from that which it had in the earlier, they would have said so definitely. We must therefore hold that "life insurance," in the act of 1913 and 1907, means the same thing. We are confirmed in this opinion by the fact that the act of 1913 regards insurance against death by accident as not life insurance. See sections 60 and 75, pp. 358 and 369. These sections were also contained in the act of 1907. Sections 56, 71. Since this conclusion precludes recovery by plaintiff, it is unnecessary to notice the other points in the briefs.

4. STATUTES 109-SUBJECTS AND TITLES.
It is not sufficient that a general idea of the
legislative intent may be gathered from the
body of the act.

5. STATUTES 141(2) — EXTENDING PROVISIONS BY REFERENCE TO TITLE.

Sess. Laws 1911, p. 298, is unconstitutional,
in that it attempts to extend the provisions
of Rev. St. 1908, §§ 586, 598, by merely allud-
ing to them as acts "defining delinquency or
concerning contributory delinquency," instead
of re-enacting so much as it purports to ex-
tend, as required by Const. art. 5, § 24.
6. CRIMINAL LAW 1134(3) VALIDITY OF

STATUTE DETERMINED THOUGH LOWER COURT
COULD NOT PASS ON QUESTION.

The question of the validity of Sess. Laws 1911, p. 298, as to juvenile delinquency being fairly before the Supreme Court, it will determine the question, though the trial court may not have had authority to reach and declare even a correct conclusion on the ques

tion.

En Banc.

Error to Juvenile Court, City and County of Denver; Royal R. Graham, Judge.

Philip P. Friederich, Allan Barth, and John Joslin were charged with contributing to juvenile delinquency. Motion to quash the informations was granted, and the judgments rendered are now before the Supreme Court on writ of error sued out on behalf of the People. Judgments affirmed.

William E. Foley, Dist. Atty., and T. E.

The judgment should be reversed, with McIntyre, Asst. Dist. Atty., both of Denver, directions to dismiss the case.

(67 Colo. 69)

PEOPLE v. FRIEDERICH. SAME v.
BARTH. SAME v. JOSLIN.

(Nos. 9265-9267.)

for the People.

Edwin H. Park, of Denver, for defendant in error Barth.

Dana, Blount & Silverstein, of Denver, for defendant in error Friederich.

BAILEY, J. The defendants were charged with contributing to juvenile delinquency.

(Supreme Court of Colorado. Dec. 1, 1919.) They moved to quash the informations, which

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motion was granted, upon the ground that the Act upon which the prosecutions were based is unconstitutional. These judgments are now here for review on writs of error sued out upon behalf of the People.

The Act on which the prosecutions are bas

2. STATUTES 109-TITLE A CONTROLLING ed is found at page 298, Session Laws 1911.

INDEX.

The purpose of a statute must be ascertained and determined by its title, and the title is presumed to be the controlling and conclusive index of the legislative intent. 8. STATUTES

118(1)-TITLE OF DELINQUEN

CY STATUTE INSUFFICIENT.

Sess. Laws 1911, p. 298, as to juvenile delinquency, is obnoxious to Const. art. 5, § 21,

The title of the Act is as follows:

"An Act for the protection of girls 18 years of age who are, or may become delinquent concerning persons who contribute to their delinquency."

The body of the Act is in these words:
"Be it enacted by the General Assembly of
the State of Colorado:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
185 P.-42

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