ried; while as to the Clark ditch there was no testimony. It appears to have been established by the evidence, and practically conceded, that appellants were the first to appropriate and apply the water of the stream. The finding of the court as to the facts, under the well-settled rule of this court, will not be reviewed. It appears to have been fully warranted by the evidence. The only question is whether, under the constitution, statutes, and state decisions, the court properly applied the law to the facts as found.

Appellants commenced construction at a point too far down stream to get the necessary fall. The ground was flat, and, by its loose, open, and rocky character, unfit to carry water. A small quantity was carried through it. For the first 1,200 feet the ditch was small and inadequate. From that point down it was dug larger, and by reason of greater fall was capable of carrying a large quantity, if not the entire volume claimed. Early in the spring of 1886 water was taken through the ditch; about 20 acres, under it, planted in crops, and irrigated. Work was done upon the ditch in the summer and fall and perhaps winter of 1886. In the spring of 1887 the head of the ditch was moved up the stream about 400 feet, to obtain necessary fall; a new ditch dug, about 1,200 or 1,400 feet long, intersecting and discharging into the original ditch. During the year 1887 three of the owners used water from the ditch, irrigating land variously estimated by different witnesses from 45 to 47 acres. In the interim, and before the change was made in the head and alignment of the ditch, the water rights of the Clark ditch (September 5, 1885), the Smith ditch (November 20, 1886), and Smith & Neve ditch (February 26, 1887) attached. In determining the amount of water appropriated by appellants we are not aided, but confused, by the declaration of the parties. It was not executed and verified until March 2, 1888, and is so at variance with the testimony of the same party, and the facts as established, that it is worse than none. It is said: The date of the appropriation of water by the original construction of said ditch is the 28th day of July, 1885, and the amount of water claimed by and under such construction is 30 cubic feet per second of time. The date of appropriation by enlargement of said ditch is of March, 1887, and the amount of water claimed by and under such enlargement is 20 cubic feet per second of time, and the capacity of the ditch at that date (1888) was stated to be 30 cubic feet per second, making the first appropriation and priority 1,800 cubic feet of water per minute, and by enlargement 1,200 cubic feet per minute, aggregating 3,000 cubic feet, when all that was attempted in proof was, from July 28, 1885, to March 3, 1887, 90 cubic feet per minute, with no ditch capacity for carrying it, and, after the last date, 510 cubic feet per minute. Upon the trial much

testimony was taken in regard to the intention of the parties at the time of the first appropriation. Such intention, unless established by notice or in some other public manner, could in no way be known to or control others wishing to take water from the same stream, and such intention could only be inferred or deduced (1) from the capacity of the ditch at its head and perhaps (2) the amount of irrigable land of the ditch proprietors upon which it could reasonably be supposed that they intended to apply it. By the testimony it was shown that at the time of the alleged appropriation in July, 1885, the only parties in interest and who had land to be covered by the ditch were George W. Taughenbaugh, John F. Taughenbaugh, and House. In the fall of that year W. A. Taughenbaugh located a claim. In the spring of 1886 F. M. Taughenbaugh located a claim. Alrod bought the claim of W. A. Taughenbaugh in the fall of 1887. At what time F. M. Taughenbaugh located his claim is not stated, but presumably in 1886, as we first hear of him as working on the ditch in that year. George W. Taughenbaugh testified: "Elrod bought in the ditch in the fall of 1887. He bought of W. A. Taughenbaugh, who came in, like my father, by enlargement right." He also testified that J. A. Taughenbaugh, House, and himself were the original owners; consequently the original appropriation could only have been for the irrigable land of those three, as it is expressly stated that the others came in under the enlargement, which was not made until the spring of 1887. Taking these facts, the intention of these parties at the time of the first appropriation and application cannot be extended so as to include parties who had neither interests in the ditch nor land upon which to apply water. That the later parties did not consider themselves entitled to any rights under the original appropriation, and also realized the inadequacy of the ap propriation and the ditch as designed and excavated, is evidenced by the fact of the change and enlargement of the ditch in the spring of 1887. The court was warranted, under the law, in finding the original appropriation to have been only for the three claims, and the amount of water applied, previous to the spring of 1887, quite limited, both by the faulty construction of the ditch and the small number of acres upon which water was to be applied; and that it could not have exceeded, if it equaled, the claim of 90 feet per minute. The court was also warranted in finding that respondents' rights by appropriation antedated the appropriation of the later claimants, and that their rights had attached before an effort was made to enlarge the ditch and take the water.

The inequitable character of the claim that all present owners in the ditch should be decreed to have rights relating back to the date of the first appropriation and cutting

out intervening appropriators, becomes apparent. I shall not attempt to determine the question whether the undertaking by the three original proprietors was prosecuted with diligence, and completed within a reasonable time. All authorities agree that both are conditions precedent to the right to the use of water. "Appropriation is the intent to take, accompanied by some open, physical, demonstration of the intent, and for some valuable use." Larimer Co. R. Co. v. People, 8 Colo. 616, 9 Pac. 794; Thomas v. Guirand, 6 Colo. 533; Reservoir Co. v. Southworth, 13 Colo. 114, 21 Pac. 1028; McDonald v. Mining Co., 13 Cal. 220. "To constitute a legal appropriation, the water must be applied within a reasonable time to some beneficial use; that is, the diversion ripens into a valid appropriation only when the water is utilized by the consumer." Platte Water Co. v. Northern Colorado Irrigation Co., 12 Colo. 531, 21 Pac. 711; Reservoir Co. v. Southworth, 13 Colo. 115, 21 Pac. 1028. It was wisely and humanely said in Sieber v. Frink, 7 Colo. 154, 2 Pac. 901: "What shall constitute such reasonable time is a question of fact depending upon the circumstances connected with each particular case." Men of limited means, pioneers in a new territory, who have not only to "grub" and clear land, but erect houses, and provide means of living while making a home, should not be held to the same rule with those more favored, and having abundant capital. As long as the settler in the desert does not abandon, but continues in good faith to prosecute his construction of a ditch, and the application of water to his land, as rapidly as his means and circumstances will permit, he should be held to be within the limit of a "reasonable time." Nor should his incipient construction and application of water be held as the extent of the appropriation, when land requires clearing and grubbing to prepare it for cultivation. The law should not and does not require a man to apply water to 100 acres where he can only cultivate 10 acres. Hence the wisdom of statutory provisions requiring a claimant of water to file a plat and statement as public notice of intention and the extent of the right claimed. The diligent and enterprising pioneer who attempts to wrest a home from the arid desert should secure water rights adequate to his wants. In this instance no plat or declaration of intention appears to have been filed as a notice to others, but, as no question is raised in regard to it, it must be considered as waived.

Cross errors were filed by appellees, but the questions presented were those of fact, and seem to have been properly disposed of by the court. It cannot be said that the original allotment of 90 cubic feet of water to the three original claimants was excessive in quantity, or insufficient for the three farms. If the appropriation of the other ditches was excessive, the court very prop

erly reduced them. If the water in appellants' ditch was not sufficient for all owners, the three original proprietors are entitled to priority in the distribution of the water, and the later comers must take as of the date of their appropriation, and suffer the consequences of delay as in all other cases where there is not an adequate supply of water. By reducing the volume of water allowed respondents' ditches, the ditch of appellants will practically get all the water to which it is entitled. The decree appears to have been just and equitable, and will be affirmed. Affirmed.

(6 Colo. App. 187)

NORTON v. YOUNG. (Court of Appeals of Colorado. April 8, 1895.) APPEAL TO DISTRICT COURT-WAIVER OF IRREGULARITIES-ACTION FOR TRESPASS-BREAK

ING DOWN FENCE.

1. Where a defendant, upon the overruling of his motion for the dismissal of an appeal from a judgment of nonsuit, taken without a motion made to set aside the nonsuit, as required by Sess. Laws 1885, p. 158. takes no exception to the ruling, and proceeds with his defense, without renewing his objection or standing on his motion, he waives the want of jurisdiction caused by failure to comply with the statute.

2. Where, in an action of trespass, the complaint alleges a title sufficient to sustain the action, and no issue is taken on it in the answer, plaintiff can recover without proof of title.

3. The fact that a fence inclosing land is not of the kind prescribed by statute will not defeat recovery by the owner against one who willfully breaks down the fence and injures the land. Appeal from district court, Arapahoe county.

Action of trespass by S. P. Norton against Dewert E. Young. From a judgment for defendant, plaintiff appeals. Reversed.

Charles M. Garwood, for appellant. Coe & Carpenter, for appellee.

BISSELL, J. This is an extraordinary judgment, for which no reason can be found in the record. In the late spring and summer of 1892 the appellant, Norton, was in possession of a section of land in Arapahoe county. During his occupancy the appellee owned a lot of sheep, which were either running in the vicinity, on unoccupied land, or were being moved between two different points. The land was inclosed with a fence made of three barbed wires of sufficient size and strength to turn sheep. The flock was in charge of a herder. The sheep were turned onto the land occupied by Norton, ate up the pasturage, and Norton sued for the damage. The case was first tried in the county court, where the plaintiff was nonsuited, and, without making a motion to set aside the nonsuit, according to the provisions of the act of 1885 (Sess. Laws 1885, p. 158), he took an appeal to the district court. The defendant there moved to dismiss it, and the court denied the motion. The record shows no exception taken to this action, but afterwards

the defendant went on with the regular prosecution of his defense, without renewing his objection or standing upon his motion. He introduced witnesses, made a motion for a nonsuit, and regularly appeared, as though there were no irregularities in the proceedings which brought him there. While the testimony was being introduced, the defendant objected to Norton's evidence of title to the land, although no issue respecting it was raised by the pleadings. It appeareȧ that Norton was in possession, and there by virtue of some leasehold right given to him by the owners of the property. When Norton tried to prove the sheep were on the land and consumed the grass, the defendant objected, because the evidence disclosed the fence to be not a statutory or lawful fence as prescribed by the law. The court sustained this objection, and Norton then offered, while the witness was on the stand, to prove in such a form that the record fairly presents the matter for our consideration that the sheep did not break through, but that the fence was cut and torn down by the defendant and his herder, and the sheep turned onto the land deliberately for the purpose of pasturage. The court refused to hear the testimony, holding the proof inadmissible, because the fence which was destroyed was not a statutory fence. This statement practically decides the case, and the expression of the legal reasons on which our judgment is based is almost a matter of supererogation. The appellee asserts a lack of jurisdiction in the district court to hear and try the case, because it was brought there in disregard of the act of 1885. Under some circumstances this contention might be well based, and the party who took the case to the district court under such circumstances might be precluded from trying it in that forum. However this may be, no such case is presented by the present record, because it is clearly brought within the doctrine of waiver of this jurisdictional matter by the acts of the defendant in the district court. This is a court of general jurisdiction, and it acquired jurisdiction of the defendant by the procedure. Railroad Co. v. Caldwell, 11 Colo. 545, 19 Pac. 542; Schoolfield v. Brunton (Colo. Sup.) 36 Pac. 1103; Canal Co. v. Fosdick (Colo. Sup.) 39 Pac. 332. The other positions taken by the appellee are equally without merit. The weakness of the plaintiff's proof respecting his title may be disregarded for two reasons: First, the title was sufficiently alleged in his complaint, and there was no issue taken on it in the answer. It must thus be true that the plaintiff had a right to recover, if he alleged a title which would sustain trespass. This he had done. A better reason is, trespass may be maintained by one who is in the occupancy of property as against a wrongdoer who has no better right. 2 Wat. Tresp. c. 5.

The only remaining matter urged upon our

attention is the anomalous defense that a party has a right to occupy another's land with his stock, cutting down his fences for the purpose, providing they are not lawful fences according to the statute. It is impossible to concede that the existence of a lawful fence is necessary to protect one's property against a willful trespasser, who breaks into an inclosure, and destroys his property. Fugate v.. Smith, 4 Colo. App. 201, 35 Pac. 283. If Norton was able to prove that the defendant or his herder, or both of them, tore down the fence and turned in the sheep, he was entitled to recover for whatever damages he was able to prove he had sustained from the trespass. The judgment will be reversed, and the case remanded for a new trial. Reversed.

(6 Colo. App. 246)

BURLINGTON & M. R. R. CO. v.
SHELTER.

(Court of Appeals of Colorado. April 8, 1895.) ACTION AGAINST RAILROAD COMPANY INJURIES TO STOCK-TIME OF TAKING EFFECT OF ACT.

In an action brought in May, 1893, to recover of a railroad company for stock killed in June, 1892, a charge submitting the case to the jury, under the provisions of an act which did not go into effect until July, 1893, making the killing of stock prima facie evidence of negligence, was error.

Appeal from Arapahoe county court.

Action by L. S. Shelter against the Burlington & Missouri River Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Wolcott & Vaile and William W. Field, for appellant.

THOMSON, J. On the 21st day of June, 1892, a locomotive engine of the railroad company defendant, while being driven and propelled along its right of way within the corporate limits of the city of Denver, struck and killed a mule belonging to the plaintiff, which had strayed upon its track. This action was commenced on the 4th day of May, 1893. The evidence of negligence on the part of the defendant is unsatisfactory and doubtful, but the instructions given render an inquiry into its sufficiency unnecessary. The court gave the following, among other, instructions to the jury: "This is an action brought for the killing of stock. The law of this state is in the following words: "The killing or injury of any animals by a railway company or corporation shall be prima facie evidence of the negligence of said railway company or corporation, and every railway company or corporation in this state, and every assignee or lessee thereof, shall be liable to pay to the owner the schedule value of all schedule stock killed, and the full value of each and every animal killed not scheduled, and all damages to each and every animal damaged by the engine or cars of such railway company or corporation in this state and every as

signee and lessee thereof, unless the railway company or corporation or assignee or lessee thereof shall, by competent evidence, affirmatively show that such killing and wounding was not caused by the negligence of such railway company or corporation or assignee or lessee thereof.' The negligence of a railway company is presumed, or, in other words, the killing of the animal is prima facie evidence of negligence. It is necessary to show on its part the use of such ordinary skill and care in the operating of its road as would be employed by ordinarily careful and prudent men in the conduct of their own private business affairs." The jury returned a verdict for the plaintiff, upon which judgment was entered. The law quoted is section 2 of an act of the legislature approved April 8, 1893 (Sess. Laws 1893, p. 406). The act did not go into effect, and therefore was not the law, until July 7, 1893,-90 days after its passage. The animal was killed before the passage of the act, and the suit commenced before it went into effect. The action was therefore not brought under this act, and, there being no other statute in force which applied to it, the rights of the parties were governed by the rules of the common law. These cast upon the plaintiff the burden of proving that the killing of the animal was in consequence of the defendant's negligence, and, if there was any proof in that direction, the jury should have been so instructed. The instruction quoted reversed the rule applicable to the case, and was erroneous. The judgment will be reversed. Reversed.

1. Const. art. 1, § 17, providing that in all civil cases the right of trial by jury shall remain inviolate, guaranties such right only in cases in which it was demandable at common law.

2. Hill's Ann. Laws, § 396, providing that whenever, in an equity case, it becomes necessary or proper to inquire of any fact by the verdict of a jury, the court may direct a statement thereof, and a jury may be formed to inquire of the same, is merely declaratory of the commonlaw equitable procedure, and in such an action the submission of a question of fact to a jury is within the sound discretion of the court.

3. The question whether a person is precluded from equitable relief by the staleness of his demand is for the court, and not for a jury.

4. Where the trustee disavows his trust, and the cestui que trust has notice thereof, limitations begin to run, as against the cestui que trust, unless he is under statutory disability, or under influences superinduced by the trustee.

5. Under Hill's Ann. Laws, $382, providing that a suit for the determination of "any right or claim to or interest in land" shall be deemed within the limitation provided for actions for the recovery of land, which is 10 years, a suit to hold a grantee taking with notice that his grantor is merely a mortgagee, though the conveyance to him was absolute, as a trustee mala tide, is barred in 10 years after a clear disavowal by

the grantee of the trust relation, and an adverse holding of the land.

6. Plaintiff deeded land absolutely, as security for a loan. Thirteen years later the grantee conveyed the land to the grantor's daughter, with notice of the trust. She and her grantees retained possession of the land, making valuable improvements thereon, for 19 years. Plaintiff. though he lived in the neighborhood.-part of the time with his daughter, and part of the time on public charity,-never asserted his title to the land. Neither the original grantee, nor those claiming under him, ever practiced any fraud to prevent plaintiff from asserting his claim. Held, that plaintiff was barred by his laches from seeking to have the original conveyance declared a mortgage.

7. One claiming under a bargain and sale deed, with covenant of warranty against all persons claiming under the grantor merely, is not precluded from claiming as a bona fide purchas

er.

8. The fact that a person contemplating the purchase of certain land was told by a third person that if he did so he would have trouble with certain persons, and that the person from whom he intended to purchase the land had stolen it, does not affect his rights as a bona fide purchaser, since such remarks afford no tangible clew by which the purchaser could discover prior equities: he having paid full value for the land, and employed counsel to investigate the title.

9. Hill's Ann. Laws, § 776, subd. 12, providing that a person is presumed to be the owner of land from exercising acts of ownership over it, or from "common reputation," does not render common reputation as to the ownership of land constructive notice of the reputed owner's title, as against a purchaser who was living in a town five miles distant from the land.

Appeal from circuit court, Clatsop county; T. A. McBride, Judge.

Action by George William Raymond against George C. Flavel and others. There was a decree for defendants, and plaintiff appeals. Affirmed.

This suit was instituted for the purpose of having defendant declared a trustee of certain real property, described as the S. 1⁄2 of the donation land claim of William W. Raymond and wife; being claim No. 44, Not. No. 7,926, in township 8 N., R. 10 W. of the Willamette meridian, in Clatsop county, Or. It is alleged: That on December 7, 1859, William W. Raymond, being then the owner of said premises, and the same having been sold under execution at sheriff's sale, and the time for redemption being about to expire, borrowed of one John Adair $200, with which to satisfy said execution, and, for the purpose of securing Adair in the repayment thereof, executed to him a deed of general warranty for the premises, but that in fact said deed was intended as a mortgage, and that Adair never went into possession under said instrument. That Raymond paid off the loan in 1862, but that, in consequence of mutual dealings and confidence, no reconveyance was ever made. That on November 20, 1873, Adair executed in favor of Raymond's daughter, Martha A. Loomis, a deed of conveyance for said premises, to be held by her upon the same terms and conditions attached to the conveyance to him, but without any clause for possession, and without any warranty, except "against the lawful claims and

demands of all persons whomsoever claiming by, through, or under" him, and that Martha A. Loomis took with full knowledge of the facts, and upon the same trust under which Adair held. That possession of said land was not taken until February 3, 1886, when defendant entered. That on said 3d day of February, 1886, Martha A. Loomis and John Loomis, her husband, without the consent or knowledge of Raymond, sold, and by deed conveyed, the premises to defendant. That at the time of purchasing said land, and prior thereto, defendant had notice of Raymond's rights therein. That defendant was informed by George W. Raymond, the son of William W. Raymond, "that said land was his father's property, and that the said Loomis and wife had no right to sell the same; that said Loomis had not paid for his mother's half, and had stolen the title to his father's half from Adair." That at the time of said last-named conveyance, and for 12 years prior thereto, William W. Raymond was aged and decrepit, and incapacitated for business, which defendant well knew. That defendant and William W. Raymond have resided in Clatsop county since long prior to December 7, 1859, and ever since and up to Febru ary 3, 1886. That they were well acquainted, and lived within four miles of each other, in the same community. That up to 1875 there were but few residents in the community, and all were familiar with the affairs of each other. That Moses Rogers, the purchaser of the land at sheriff's sale, was the brother-in-law of defendant, and that defendant was fully aware of said sale and redemption, and of the execution of said deed to Adair, and knew that Adair had no claim to the real ownership of the premises. That all of said facts as to the title were matters of common reputation in the community, and that defendant had knowledge thereof. That since February 3, 1886, defendant has been in the adverse possession of the premises. That the value of the use and occupation thereof for six years is $2,000 per annum, and that, since the last-named date, William W. Raymond has sold and conveyed to plaintiff all his right, title, and interest in said premises. The defendant, after denying all the material allegations of the complaint, except the execution of the several deeds, the relationship of Moses Rogers, and the adverse possession of defendant for the six years last past, set up other and further and separate answers, under which the following defenses are claimed: First, that the defendant is a purchaser in good faith, for value, and without notice of the alleged equities of plaintiff; second, that plaintiff's suit is barred by the statute of limitations; and, third, that plaintiff's claim is stale, and equity will not now interfere to grant relief, for the reason that plaintiff has been guilty of gross laches in prosecuting the same,-and prays a decree that he is the owner in fee of said premises, and that his title be quieted.

Trial was had before the court, and the following are its findings, as conclusions of fact: "(1) That on the 7th day of December, 1859, and prior thereto, one William W. Raymond, as donor under the act of the congress of the United States commonly called the 'Donation Act,' was the owner in fee simple, and in possession, of the south half of the donation land claim of said William W. Raymond and his wife, Almira Raymond, situated in Clatsop county, state of Oregon, and being claim No. 44, and notification No. 7,926, and being parts of sections nine and sixteen in township No. eight north, of range number ten west of the Willamette meridian. (2) That on the 7th day of September, 1859, the said William W. Raymond, being indebted to one John Adair in the sum of two hundred dollars, in order to secure the payment of the same, by a deed absolute on its face, and in form and by its terms a general warranty deed, executed and acknowledged, granted, bargained, sold, and conveyed the said south half of the said donation land claim to the said John Adair; and the said deed of conveyance was on the 21st day of January, 1860, duly filed for record and recorded in the office of the county clerk of said Clatsop county, at page 393 of Book B, record of deeds for said county of Clatsop, and has ever since been so of record. (3) That, at the time said conveyance of said premises was made by said William W. Raymond to said John Adair, it was understood and agreed between them that, when said Raymond should pay the said John Adair the said sum of two hundred dollars and interest, he, the said John Adair, would convey to him the said premises, or would convey the same to any member of his, said Raymond's, family, that he, said Raymond, might request him to. (4) That thereafter, on the 20th day of Nevember, 1873, the said John Adair still held the title to the said south half of said donation land claim under the conveyance to him aforesaid, and on said day, in consideration of the sum of two hundred dollars to him paid by one John Loomis and Martha A. Loomis, his wife, by a deed duly executed and acknowledged, granted, bargained, sold, and conveyed the said south half of said donation claim unto the said Martha A. Loomis, and she, the said Martha A. Loomis, immediately went into possession thereof, and of the whole thereof, claiming to own the same, and did occupy the same, and the whole thereof, openly, notoriously, and adversely to the claim of the plaintiff and the said William W. Raymond and all other persons, from the said 20th day of November, 1873, up to the date that she and her said husband conveyed the same to the defendant, to wit, the 3d day of November, 1886. (5) That, at the time the said Martha A. Loomis purchased the said premises as aforesaid, she had notice of the claim of the said Wil liam W. Raymond; but she denied the same,