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Upon evidence of this nature the conclusion of the trial court was to the effect that Nichols was barred from having any priority of right to the use of water adjudged in his favor in this proceeding; but that he must rely upon the Wellman ditch for water to irrigate his south-side lands, and that his south-side priority was merged in the priority of the Wellman ditch. The doctrines of jointure, merger, res judicata, laches, including certain limitation statutes, are relied on to support these conclusions. See Act 1881, pp. 156, 160, §§ 26, 35. It is true, as we have seen, that Nichols and others arranged to divert water for the irrigation of their several farms through a single head gate, and so I carried the water for a certain distance through a ditch constructed and used by them in common. But these facts, without other pertinent evidence, do not justify the conclusion that Nichols agreed to surrender his separate priority; nor is the inference to be indulged that he intended so to do. As was said in Rominger v. Squires, supra: "It is cot reasonable to suppose that priority of right to water, where water is scarce, or likely to become so, will be lightly sacrificed or surrendered by its owner. Nor should the owner of such a right be held to have surrendered it or merged it, except upon reasonably clear and satisfactory evidence."

2. Was the adjudication of priorities as made in district No. 6 in 1882 res judicata as to plaintiff's rights? An affirmative answer would, in our opinion, give undue effect to the irrigation acts of 1879 and 1881, and the adjudications of priorities thereunder. In Reservoir Co. v. Southworth, supra, it was said of these irrigation acts: "They are in the nature of police regulations to secure the orderly distribution of water for irrigation purposes, and to this end they provide a system of procedure for determining the priority of rights as between the carriers." And again: "The authority of the general assembly to enact laws regulating the distribution of water to actual appropriators, provided they do not substantially affect constitutional or vested rights, is undoubted." See 13 Colo. 134, 137, 21 Pac. Rep. 1028. In the same case it was held by the majority of the court that "the appropriations of water by consumers who receive the same through the same ditch do not necessarily relate to the same time; but, on the contrary, such consumers may have different priorities of right." Thus, in effect, the "prorating statute," so called, (Gen. St. 1883, § 1722,) was upon constitutional grounds limited in its operation. As early as 1880 litigation arose respecting the entry of decrees under the irrigation act of 1879 without service of process or notice upon the parties whose water rights were to be affected by such decrees. One of the district judges refused to enter such decrees except upon a compliance with certain rules which he had formulated re

quiring process or notice. The controversy reaching this court, the late Chief Justice Beck, speaking for the court, declared: "Property rights in water are as important, as valuable, and as extensive as the broad acres to be fertilized thereby." The rules requiring process or notice were upheld. Since that time this court has repeatedly held that priorities of right to the use of water are property rights. Such is the settled doctrine in this state. See Union Colony v. Elliott, 5 Colo. 381; Strickler v. City of Colorado Springs, 16 Colo. 61, 26 Pac. Rep. 313, and cases there cited. Also, Wyatt v. Irrigation Co., 18 Colo. - 33 Pac. Rep. 144. Property rights in water consist not alone in the amount of the appropriation, but also in the priority of the appropriation. It often happens that the chief value of an appropriation consists in its priority over other appropriations from the same natural stream. Hence, to deprive a person of his priority is to deprive him of a most valuable property right; for example, in the case at bar, if, as a matter of fact, Nichols made his original appropriation on the south side as early as 1861, as he claims, or in 1864, as claimed by others, the adjudication fixing his priority as of the date of the Wellman ditch (May 1, 1878) subjects his right to all intervening appropriations made between the former dates and the latter, and thus greatly lessens its value. A priority of right to the use of water, being property, is protected by our constitution so that no person can be deprived of it without "due process of law." Const. Colo. art. 2, § 25; Cooley, Const. Lim. (6th Ed.) 431 et seq. Conceding that plaintiff, as he testifies, made his appropriations of water in the early sixties, and continuously thereafter applied the same to purposes of irrigation until 1888, when the water commissioner shut off his supply, he was entitled, as we have heretofore indicated, to have such prior water rights protected, notwithstanding he had changed the place and mode of diversion, and notwithstanding the statute providing for the adjudication of priorities and the decrees entered thereunder in 1882. It is true, section 26 of the act of 1881, supra, limits the review or reargument of such decrees to the period of two years from their entry. Section 35 also provides that after the lapse of four years from such entry, all parties whose interests are thereby affected shall be deemed to have acquiesced in the same, etc. But these sections do not apply to an original proceeding for an adjudication of priorities by a party who has never had his day in court. A reargument implies a previous argument, or at least a previous opportunity for argument. No one's interests can properly be said to be affected by a decree in a proceeding of this kind to which he is not a party. Plaintiff not having been served with process, his pos

session and enjoyment of the water rights in controversy not having been interrupted, disturbed, or in any way challenged from the date of his appropriation until just before the commencement of this proceeding, his interests cannot be held to have been affected by the lapse of time prescribed by the statute. It has been aptly said: "The doctrine of laches can only be invoked by one in possession against one out of possession." See Coffee v. Emigh, 15 Colo. 191. 25 Pac. Rep. 83, and authorities there cited. The prior rights of a party not served with process or notice in proceedings to adjudicate priorities cannot be held to be affected by the lapse of time so long as such rights are not actually denied, abridged, or interfered with by the enforcement of the decree entered in such proceedings. It cannot properly be said that a person has slept upon his rights unless he has for a considerable period of time actually acquiesced in being deprived of them.

3. The trial court further found: "The two old Nichols ditches are abandoned, and no longer used as ditches. Plaintiff has substituted other ditches for them, and is and has been for many years using his water rights through the said substituted ditches; and therefore he cannot call for an adjudication of priority for the two old ditches as if they were still existing operative ditches." It may be that plaintiff had abandoned a portion of his original ditches, yet it would seem from this finding that he had not abandoned his water rights. A distinction must be observed between the abandonment of an irrigating ditch and the abandonment of the right to the use of water for irrigation. Water rights may be abandoned by nonuser, but so long as the appropriator continues the use of such rights without any unreasonable voluntary cessation an abandonment of his water rights will not be presumed against him. Sieber v. Frink, 7 Colo. 153 et seq., 2 Pac. Rep. 901. As a new trial may be had in this proceeding, we have endeavored not to intimate any decisive opinion concerning the facts of the case, nor to discuss the evidence, except so far as has been necessary in expressing our views upon the law governing the rights of the parties.

4. In case of further proceedings, any person or persons whose rights may be affected by the adjudication of plaintiff's priorities as claimed by him are entitled to be made parties. Plaintiff should be allowed to amend his petition so as to secure an adjudication of his priorities through any substituted ditch, instead of his original ditches, if he desires so to do; and the date and amount of his priorities on either side of the stream respectively must be subject to such proof as he can make, the same as if he had been served with process, or had appeared in the original proceeding for the adjudication of such priorities.

5. While it may be proper to inquire as to the amount of water necessary to irrigate a certain amount of land, as was done on the previous trial, nevertheless, in fixing priorities between contesting claimants, it must be borne in mind that the amount actually appropriated, and the time of its appropriation, are also important; in other words, no one is entitled to have a priority adjudged for more water than he has actually appropriated, nor for more than he actually needs. His priority of right must be limited by each of these considerations. Proof of present need is not of itself proof of prior appropriation, and vice versa. The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with this opinion.

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pressed by the trial court.

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2. A claim for damages to property may, under our statute, be assigned so as to vest in the assignee the right of action in his own name. The general rule is that assignability and descendibility go hand in hand.

3. The assignment of part of an entire demand will not be sustained at law, but will be upheld in equity where the demand is for some certain or definite fund which equity requires shall be divided according to the assignment.

4. Under our practice, legal and equitable relief may be had in the same action, as the nature and cause of the action may require; but, in order that equitable relief may be had, equitable pleadings must be interposed.

(Syllabus by the Court.)

Error to district court, Arapahoe county. Action by the Home Insurance Company of New York and others against the Atchison, Topeka & Santa Fe Railroad Company. Defendant had judgment, and plaintiffs bring error. Affirmed.

The other facts fully appear in the following statement by ELLIOTT, J.:

The complaint alleges, in substance, that the Arkansas Valley Land & Cattle Company was the owner of 370 tons of hay, of the value of $3,700, stacked upon the Holly ranch, in Bent county, Colo., through which the defendant company operates its line of railroad, and that on March 19, 1887, said hay was consumed by fire set out or caused by the operation of said railroad. It further alleges that the cattle company, on July 7, 1887, for a valuable consideration, assigned to plaintiffs its claim against the railroad company for the loss of said hay. The answer denies that the fire complained of was caused by the operation of defendant's railroad, and also denies the assignment of the cattle company's claim to plaintiffs. The

answer contains a special defense to the effect that on April 23, 1887, defendant, without notice of any claim or demand of plaintiffs, paid the cattle company the sum of $600 in full satisfaction of all losses occasioned by fires to the date of said payment, and that in consideration of such payment the cattle company did, in writing, on the date last aforesaid, release and forever discharge defendant of and from all manner of actions, causes of action, suits, claims, and demands whatsoever, in law or equity, etc. The special defense was traversed by the replication, and a jury was impaneled to try the cause. The record shows, inter alia, the following proceedings: "This cause having heretofore come on for trial before this court and a jury, and, at the close of the testimony on both sides, the defendant having moved that the jury be directed to find for the defendant, and, by consent of the parties, the jury having been, at that stage of the case, dismissed, and the cause submitted to the court, and the court having, after hearing arguments, sustained the said motion, and found for the defendant, on the ground that the plaintiffs' complaint and cause of action were not sustained by the evidence adduced on the trial, the assignment of several portions of the alleged claim of the assignor in the complaint named to the said several plaintiffs being void, and not proving the cause of actions set out in the complaint." Motion for new trial was denied, and judgment was rendered for defendant on the finding aforesaid. To reverse such judgment, plaintiffs bring the record to this court by writ of error.

Wolcott & Vaile, for plaintiffs in error. Charles E. Gast, for defendant in error.

ELLIOTT, J., (after stating the facts.) At the close of the testimony, by consent of parties, the jury was discharged, and the cause was submitted to the court to pass upon and decide all matters of fact, as well as of law, under the issues and the evidence, the same as if no jury had been impaneled. The court found in favor of defendant.

In the case of Wadsworth v. Railway Co., 18 Colo. --33 Pac. Rep. 515, where plaintiff elected to stand by his case as made, rather than have a new trial, it was held, after verdict by the jury, that the trial court was justified in dismissing the action on the ground that plaintiff could not in any event, as a matter of law, recover in the action. In the present case, as in the Wadsworth Case, it is contended that, as the reason expressed by the trial court in connection with its finding was erroneous, the judgment must be reversed. But the better rule undoubtedly is that where, from a review of the whole record, it clearly appears that the judgment rendered is right, it will not be reversed by the appellate court on the

sole ground that some erroneous view or reason for the decision was expressed by the trial court. 2 Thomp. Trials, § 2404; Bell v. Cunningham, 81 N. C. 83.

The statute of this state making railroad companies liable for damages by fire set out or caused by the operation of their trains has been held constitutional, and declared to be purely remedial in its nature. Gen. St. 1883, § 2798; Railway Co. v. De Busk, 12 Colo. 294, 20 Pac. Rep. 752. See, also, Wadsworth Case, supra. That an entire claim for damages to property may, under statutes like ours, be assigned so as to vest in the assignee the right of action in his own name, is well established by the current of authority. The general rule is that assignability and descendibility go hand in hand. Under our system of practice it is not material whether the claim be assignable at law or in equity, though, as will hereafter appear, in order to recover on an assignment sustainable in equity, but not at law, the facts showing the equitable grounds of the assignment must be set forth in the pleadings. Rev. St. 1868, p. 682; Code, § 1, 3, 4; Bliss, Code PL. §§ 3-7, 38 et seq.; Kelley v. Railway Co., 16 Colo. 455, 27 Pac. Rep. 1058; Amer. & Eng. Enc. Law, tit. "Assignments." The complaint shows no defect in plaintiffs' cause of action; but, as the decision of the lower court was based upon the merits of the controversy as disclosed by the testimony, the law applicable to the evidence, as well as to the pleadings, must be considered. Upon the evidence produced, difficult questions arise. The evidence shows that different fires occurred at the Holly ranch on different days. Each fire, it appears, was set out or caused by the operation of defendant's line of railroad. The fire which burned the hay described in this action occurred on March 19, 1887. The same fire also burned certain pasture lands and fence posts, in addition to the hay. Other fires occurred on April 7, 1887, and burned large areas of pasturage, and also certain fencing materials. In April, 1887, claims were presented by the cattle company against the defendant railroad company for damages occasioned by these fires. The claims were as follows:

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kansas Vafley Land and Cattle Company, | tions, causes of action, suits, debts and and that the above claim is just and true to the best of his knowledge and belief, and furthermore sayeth not. [Signed] H. R. Tillett, Supt.

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"County of Bent, state of Colorado-ss.: H. R. Tillett, of Holly, in the county aforesaid, being duly sworn, says that he is the legal authorized agent of the Arkansas Valley Land and Cattle Company, and that the above damage was done by fire started from engines belonging to the Atchison, Topeka & Santa Fe Railroad, and that the above account is just and true, to the best of his knowledge and belief, and further says not. [Signed] H. R. Tillett, Supt.

"Sworn to this 9th day of May, A. D. 1887, before me. [Signed] C. L. McPherson, J. P."

The following written instrument was identified as genuine, and read in evidence in behalf of defendant:

"Atchison, Topeka and Santa Fe Railroad Company, to Arkansas Valley Land and Cattle Company:

"Holly, Colo., April 23, 1887. "For all damages by reason of fires set by locomotives on the A., T. & S. F. near Holly, to this date, and in full satisfaction and payment for all losses by said fires:

"Amount claimed, $718.90, and settled in full for $600.00.

"Examined by J. W. W.

"Correct. C. M. L.

"C. M. Rathbun, Superintendent. "Approved. C. M. Foulks.

"Approved. H. C. Clements, Auditor. "Approved. J. F. Goddard, (J. N. F.) General Manager.

"Received of the Atchison, Topeka & Santa Fe Railroad Company six hundred dollars, in full payment of the above account. In consideration of the payment of said sum of money, I, H. R. Tillett, superintendent of Holly, in the county of Bent and state of Colorado, hereby remise, release and forever discharge the company of and from all manner of ac

sums of money, dues, claims and demands, whatsoever, in law or equity, which I have ever had or now have against said company, by reason of any matter, cause or thing, whatever, whether the same arose upon contract or upon tort. In testimony whereof, I have hereunto set my hand this 29th day of April, 1887.

[Signed] "H. R. Tillett, Superintendent. "Witness: C. L. McPherson."

There was no error in the refusal of the court to allow plaintiffs to show by the witness Tillett that he was not, and never had been, an officer of the cattle company. It was a matter of no importance, as the case stood when such offer was made. Tillett had already testified, as a witness for plaintiffs, to his capacity as superintendent of the company's ranch at Holly, and to his presentation of the two claims in behalf of the cattle company. He also admitted that he settled those claims. Technically, he may not have been a corporate officer of the cattle company; and yet it appears that he was authorized to present, settle, and collect the claims for the company, as he had assumed to do. There was no offer to show that he did not sign the receipt, nor that he did not have authority so to do, nor that the cattle company did not receive the payment which Tillett receipted for as its superintendent. A careful examination of the evidence shows that all the fires complained of occurred before the settlement between the cattle company and the railroad company. The claim of the cattle company for the loss of the hay was therefore as complete at the date of that settlement as it ever was. The evidence also shows that the cattle company, by its superintendent in charge of its ranch, had full notice of the destruction of the hay at the time of such settlement. It had the same notice of the destruction of the hay as of the pasturage and fence posts. It was established without controversy, by plaintiffs' evidence, that the hay which is the subject of this lawsuit and certain pasture lands and certain fence posts were burned by the same fire at the same time. Superintendent Tillett testified that he presented the claims to the railroad company for the pasturage and posts that were burned, but that he did not settle anything except the items of the loss specified in the two accounts marked Exhibits "1" and "2." Thus, the cattle company undertook to show that it had settled with the railroad company for a part, only, of an entire demand occasioned by a single act, an act in the nature of trespass or negligence, actual, constructive, or implied, as the case may be classified under the statute,

while it reserved its claim for the residue of the loss occasioned by the same act; that is, it undertook to show a settlement for the posts and pasturage, but a reservation of the claim for the hay, though all those articles of property were destroyed by the same act.

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In jurisdictions where law and equity are administered by different tribunals, or on different sides of the saine tribunal, the general rule is that the assignment of part of an entire demand will not be sustained by the law courts, though it will be upheld by the equity tribunals where the demand is for some certain or definite fund, which equity requires should be divided according to the assignment. Under our present practice, legal and equitable relief may be had in the same action, as the nature and cause of the 'action may require. Nevertheless, in order that equitable relief may be had, equitable pleadings must be interposed; hence a partial assignment of a legal demand will not be sustained in our courts unless the facts showing the equitable right or interest upon which the partial assignment is based are alleged, as well as proved. In Bank v. Ford, 7 Colo. 320, 3 Pac. Rep. 449, our late Chief Justice Helm, delivering the opinion of this court, clearly stated the distinction to be observed in pleading matters of legal and equitable cognizance as follows: "The Code abolishes forms of actions merely, including the difference in this respect between actions at law and suits in equity, and provides a single method of pleading. It does not undertake to do away with the distinction between legal and equitable causes of action. It does not rescind the rule that the allegation and the proof must correspond, nor the correlative principle that the judgment must follow the pleadings. To procure standing in a court of equity and obtain equitable relief, the pleader must still state an equitable cause of action or defense." The same doctrine is recognized in Fillmore v. Wells, 10 Colo. 236, 15 Pac. Rep. 343; Danielson v. Gude, 11 Colo. 92, 17 Pac. Rep. 283; and also Bank v. Wilbur, 16 Colo. 320, 26 Pac. Rep. 777. In the present action the complaint simply alleges that the cattle company's claim for the loss of the hay was assigned to plaintiffs for a valuable consideration. It shows an assignment of the claim to them jointly. It does not allege the nature of the consideration, nor the facts and circumstances of the transaction in detail, as good equity pleading requires. Bliss, Code Pl. § 3. The evidence offered, as we have seen, shows that the loss of the hay was a part, only, of the damages resulting from a single cause of action, to wit, the fire set out by defendant's engines on March 19th. The cause of action was the fire; the items of the damages were the destruction of the posts, the pasturage, and the hay. Thus the assignment was for a part, only, of the damages arising from a single cause of action. More than this, the several articles of assignment and subrogation produced in evidence show an assignment of the damages to nine different insurance companies (plaintiffs in this action) in severalty; for example, an assignment by the cattle company of its claim against the

railroad company to the Home Insurance Company to the extent of $264.93; to the American Insurance Company, a similar assignment, to the extent of $176.72; and so on, aggregating $2,960. Each article of assignment and subrogation recites that the insurance company therein named had insured the hay of the cattle company, had paid a specified sum on account of the loss of the hay, and that said company was by such assignment, to the extent of the sum so paid, authorized to sue for, settle, or compromise any claim which the cattle company had against any party liable for the burning or destruction of the hay, thus fully substituting and subrogating the insurance company to all the rights of the cattle company in the premises

It is urged by counsel that plaintiffs' cause of action is supported by strong equities. If so, the facts showing such equities should have been pleaded, thus giving defendant opportunity to controvert them, or to confess them, and save further costs in the action. When insured property is destroyed by the carelessness or negligence of a third party, it may well be said that an insurance company liable to its policyholder for the loss should, in equity, upon making payment, be subrogated to the rights of the insured against the wrong-doer; but, where the liability exists by mere force of the statute, the equity of the insurance company is not necessarily very strong, and in some instances it may be very slight, or have no existence at all. The statute makes the railroad company liable unconditionally, irre spective of any negligence on its part. The statute is upheld as a statute of indemnity,a remedial statute, whereby the owner may recover for the loss of his property. The statute is based upon the consideration that the railroad company is, by special franchise, allowed to operate its trains for profit by the dangerous agency of steam, and that in so doing it exposes property owned by others situate upon the line of its road to unusual hazards; hence, as between the railroad company and such property owners, the statute makes the company liable for the damages caused by fire from its engines. But can it be maintained that the insurance company occupies the same position as the owner whose property is thus exposed, it may be, without his consent? The insurance company voluntarily goes upon the line of the railroad, and insures property exposed to such extraordinary danger. The insurance is granted for premiums presumably commensurate with the extraordinary hazard. The insurance company, as well as the railroad company, pursues its business for a profit. Insurance is granted for a consideration against fires caused by the operation of the railroad, as well as against fires otherwise caused. How, then, can it be said that the insurance company has a strong equitable claim to reimbursement from the

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