1247,

2027) is as follows: "If No Delivery, and No Change of Possession, Vold. Every sale made by a vendor of goods and chattels in his possession, or under his control, and every assignment of goods and chattels, unless the same be accompanied by an imme diate delivery, and be followed by an actual and continued change of possession, of the things sold or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith, and this presumption shall be conclusive." The statute, and its construction in Cook v. Mann, 6 Colo. 21; Wilcox v. Jackson, 7 Colo. 521, 4 Pac. Rep. 966; and Bassinger v. Spangler, 9 Colo. 175, 10 Pac. Rep. 809,-are conclusive of this case. Nothing appears in Sweeney v. Coe, 12 Colo. 485, 21 Pac. Rep. 705, or Herr v. Milling & Mercantile Co., 13 Colo. 406, 22 Pac. Rep. 770, cited by counsel, to modify, or in any way change, the former decisions cited. The statute itself is so plain and unequivocal, no interpretation or construction is required. It is claimed by the learned counsel that the mortgaging of the property by appellaut, and the recording of the mortgage, took it out of the operation of the statute, by giving notice of the ownership, etc. We cannot see how it in any way affected it. If neither F. A. Hassenplug nor appellant had any title, appellant could not make one by executing and recording a mortgage of that property, any more than he could of the property of any other person. How would the making and recording of a chattel mortgage of a long list of chattels, by appellant, be notice to anybody of the Identity of the chattels with those in the possession and use of G. K. Hassenplug? If, as contended, the mortgage and recording were notice, they would be no notice that they were the goods in controversy; the le gal supposition being that possession was in the mortgagor.

The judgment will be affirmed.

3 Colo.A. 328

to recover a penalty under a statute. Judgment was rendered for defendant, and plaintiff appeals. Affirmed.

Wilson & Salmon, for plaintiff in error. Philip O'Farrell and Daniel E. Parks, for defendant in error.

REED, J. This action was brought to recover a penalty of $200 for an alleged violation of the provisions of section 2537, Gen. St., as follows: "If any person shall bring and leave any pauper or paupers in any county in this state, wherein such pauper is not lawfully settled, knowing him or them to be paupers, he shall forfeit and pay the sum of two hundred dollars for every such offense, to be sued for and recovered, by and to the use of such county, by action of debt, before any court having competent jurisdiction; and the suit may be brought in the county where the pauper was So brought and left, and the process may be directed to, and served by, any proper officer in any county in this state." Prior to Oc tober 10, 1890, Ellen Crandall was a resident of Aspen, Pitkin county, and, it appears, had been self-supporting; had a daughter married and settled at that place. About the date mentioned, she sold out her limited effects, receiving about $40. She and Mrs. Skane went to Leadville, Lake county, opened a laundry, and prosecuted the business until the latter part of January, 1891, or first of February, when she was taken sick, used up her means, and applied to the county authorities for assistance. Defendant was the officer in charge of the charity department. Some time, probably early, in February she applied to the defendant for transportation to Aspen, which she obtained, visited her daughter for a day or two, then applied to the officer of Pitkin county for assistance, was by him sent back to Lake county, where she re mained until March 4th, when she again applied to the defendant, and obtained transportation back to Aspen. After her return she became a charge upon the county of Pitkin, and this suit was brought. It was tried by the court without a jury, result

V. LAW.

(Court of Appeals of Colorado. May 22, 1893.)

REMOVAL OF PAUPER-PENALTY. Under Gen. St. § 2537, providing a penalty for bringing and leaving any pauper in any county of the state, such penalty to be recovered by the county into which the pauper is brought, to entitle a county to recover such penalty it must appear that the person brought into the county was a pauper, within the legal definition of the word; that he had a legal domicile in the county from which he was removed, and not in the county to which he was taken; and that the person charged with bringing him into the county had knowledge of these facts.

Error to district court, Pitkin county.

Action by the board of county commissoners of Pitkin county against John Law

this appeal prosecuted.

The statute is penal, and must be strictly construed. The obvious intention of the legislature was to punish any person who knowingly and intentionally caused a pauper to be taken from the county where domiciled, and transported to another, with the knowledge and intention of relieving the county of domicile from the charge of support, and making the person a charge upon the other county. In order to warrant a conviction it must transpire, beyond controversy, that the person was a pauper, within the legal definition of the word; had legal domicile in the county from which the removal was made, and not in the county to which taken or sent; and a knowledge of these facts by

the person charged, from which the intention, if not expressed, could legally be implied. In all cases of this character the intention is an important element of the offense. In this case the questions were of facts, principally, although, had the other facts been found against the defendant, the question of domicile might have required a determination. The testimony upon one important point was conflicting; the defendant and his assistant testifying to the woman's statement that, having a daughter and friends in Aspen, she would not become a public charge. This was denied by the woman Crandall; otherwise, there was no material conflict of evidence. The evidence was not sufficiently conclusive and determiaate to establish the statutory offense. The inding and judgment of the court should not be disturbed. Judgment affirmed.

1. Where holders of water rights acquired from an irrigation company sue to enjoin the company from disposing of such rights to an amount in excess of its capacity to supply water, in violation of such contracts, no constitutional question is involved which will give the supreme court jurisdiction of an appeal thereof, under Laws 1891, p. 118, § 1, (act establishing the court of appeals,) which provides that no appeal to the supreme court will lie unless the judgment exceeds $2,500, except where_the construction of a provision of the state or United States constitution is necessary to the determination of the case.

2. Laws 1891, p. 118, § 1, provides that the limitation of the right of appeal to the supreme court, to cases wherein the judgment exceeds $2,500, shall not apply where the matter in controversy "relates" to a franchise or freehold. Section 4, subd. 3, provides that the court of appeals shall have jurisdiction, not final, in cases where the controversy "involves" a franchise or freehold. Section 15 provides that appeals will lie to review every final judgment of the court of appeals in cases which might have been taken for review to the supreme court in the first instance. Code 1887, p. 206, § 388, provides that appeals to the supreme court from the district court shall be allowed in all cases which "relate" to a franchise or freehold. Held, that the word "involve," as used in section 4, subd. 3, is synonymous with the word "relate," and that the supreme court has jurisdiction of appeals in actions which "relate" to a freehold.

3. A water right acquired by a user of water under a contract with an irrigation company, being an easement in the ditch, is an incorporeal hereditament descendible by inheritance to the owner's heirs, and constitutes a freehold estate.

4. Where holders of water rights acquired from an irrigation company under contracts therewith bring an action to enjoin the company from disposing of such rights to an amount in excess of its capacity to supply water, and allege that they have a right to have a certain quantity of water flow through defendant's

ditch, a diminution of which is threatened, such action relates to a freehold, and the supreme court has jurisdiction of an appeal thereof from the court of appeals.

5. In such action the complaint alleged that the estimated carrying capacity of defendant's canal was 500 water rights of 1.44 cubic feet each per second, and that defendant had sold certain of such rights to plaintiffs under written contracts which provided that, when the company had sold water rights equal to the "estimated capacity" of its canal, stock should be delivered to each purchaser, that the company should not be liable for deficiency in the supply of water from natural causes; and that if, from causes beyond its control the supply should be unequal to the "estimated capacity" of the canal, or if "the supply" shall be insufficient "to furnish" the stipulated amount, defendant might prorate the water among the holders; also, that 366 1-2 of such rights had heen sold; that by reason of prior appropriations of water of the stream supplying defendant's canal the supply of water was insufficient to furnish each holder 1.44 cubic feet per second; that for two or more years defendant has repeatedly refused to dispose of additional water rights, and admitted that it could not do so without violating its duty to present owners, but that defendant was now about to sell a large number of additional rights. Held, that "estimated capacity" meant and referred to the supply of water, and not to the carrying capacity of the canal, and, it being alleged that the water rights sold exceeded such supply, it was error to sustain a demurrer to the complaint. 29 Pac. Rep. 906, reversed.

6. Since if, by the terms of such contracts, defendant has the right to dispose of definite water rights, and by ambiguous subsequent provisions reserves the power to render the rights uncertain in quantity by disposing of water rights admittedly in excess of its ability to furnish water, such provisions are inequitable, and by construing the words "estimated capacity" to mean the supply of water, such provisions are legal, the latter construction must obtain.

7. Where it appears that the contracts for such water rights were written on printed blanks prepared by defendant, any provisions therein of doubtful import must be construed most strongly against the company.

Appeal from court of appeals.

Action by David C. Wyatt and others against the Larimer & Weld Irrigation Company and others for an injunction. From the judgment of the court of appeals (29 Pac. Rep. 906) affirming an order sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.

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

The appellants, suing for themselves, and also on behalf of all other users of water except the defendants, who obtain their supply from the canal of defendant, the Larimer & Weld Irrigation Company by virtue of the water-right contracts issued by said company, brought this action in the district court of Weld county to enjoin the company from selling additional water rights, or entering into further water-right contracts providing for the prorating of the water flowing in its canal. The complaint is in substance as follows: That the Larimer & Weld Irrigation Company was duly incorporated, pursuant to the laws of this state, as a ditch company, and a carrier of water for irrigation, in the month of March, 1879. That it

acquired an old ditch known as "Canal No. 10," in Larimer county, and enlarged and extended the same during 1878 and 1880 and subsequent years, and that, as so enlarged, it is now known as the "Larimer & Weld Irrlgation Canal." That it has for many years past, by means of such canal, diverted water from the Cache la Poudre river at its headgate in Larimer county, and distributed the water so accumulated among the consumers and appropriators who own land along the line of the canal, capable of irrigation therefrom, and who have entered into written contracts with the company concerning such water delivery. "That all written contracts or agreements for water rights made by the defendant the Larimer & Weld Irrigation Company with water consumers and appropriators under the line of said canal have mentioned, as a unit of comparison and measurement, what is known as an '80-acre water right,' which is defined in all such contracts as one and forty-four one-hundredths cubic feet of water per second flowing over a weir at one of the lateral head gates along the line of said defendant's canal; said amount of water to be used during the irrigating seasons, or so long as needed during such seasons for the proper irrigation of eighty acres of land." That in 1879, upon the acquisition of canal No. 10, the company entered into contracts with the persons who had acquired vested appropriations by virtue of user of water therefrom, expressly recognizing and confirming their rights to the continued use of water from defendant's canal, in the aggregate, of 294 80-acre water rights, and allowing the owners of such rights to divert the full quota of water appertaining thereto, and without prorating with other owners of water rights in the canal in times of scarcity. That such contracts for the preferred 294 water rights are still outstanding. That the defendant, in addition to such contracts, did, for valuable considerations, from 1880 to 1888, enter into written contracts with other users of water in possession of land lying under said canal, all of which are in full force and outstanding, and amounting in the aggregate to 2924 80-acre water rights, whereby it agreed perpetually, during the irrigating seasons, to deliver water to said parties. That said water rights are owned and controlled as follows: Fifty-six by the defendant B. H. Eaton; 24 by David C. Wyatt, Demosthenes B. Wyatt, and Lewis L. Wyatt; 2 by Herbert J. Thompson; and the remaining 2104 are owned by other consumers, who have a common and general interest with plaintiffs in the distribution of water in defendant's canal, and in whose behalf the action is also brought. That they and plaintiffs, during each and every irrigating season since their rights were acquired, have engaged in cultivating and raising crops, and used and appropriated all the water appropriated to them in pursuance of such contract; have v.33r.no.3-10

Colo. Rep. 33-35 P.-3

promptly paid all assessments levied by defendant company; and have in all respects complied with the terms of their contract. "That each of the several written contracts entered into by and between the defendant the Larimer & Weld Irrigation Company of the one part, and the respective waterright owners of the other part, has been written upon a certain regular printed blank form of contract, and each of said contracts contains the following printed conditions, to wit: (6) The said company agrees that when it shall have sold and have outstanding and in force a number of water rights equal to the estimated capacity of the company's canal to furnish water, it will then issue and deliver to the holder of each water right who shall have complied with the terms and conditions of this contract, without further consideration, four shares of the stock of said company for every water right hereby sold, which the purchaser hereof agrees to accept. (7) It is hereby distinctly understood and agreed by and between the parties hereto that, in case the canal of said company shall be unable to carry and distribute a volume of water equal to its estimated capacity, either from casual or unforeseen or unavoidable accident, or if the volume of water prove insufficient from drouth, or from any other cause beyond the control of said company, the company shall not be liable in any way for the shortness or deficiency of supply occasioned by any of said causes. (8) It is further agreed that if by reason of any causes the supply of water shall be insufficient to fill and flow through said canal, according to its estimated capacity, or if from any other cause, as aforesaid, beyond the control of said company, the supply shall be insufficient to furnish an amount equal to all the water rights then outstanding, the said company shall have the right to distribute such water as may flow through said canal to the holders of such water rights pro rata; and, for the purpose of so doing, may establish and enforce such rules and regulations as it may deem necessary or expedient.'" That, in addition to the waterright contracts mentioned, the defendant company did allow B. H. Eaton, prior to 1889, to use 40 additional 80-acre water rights on his land, for which no written contract was entered into by them, and for which no consideration was paid, but were so used that vested appropriations would accrue in connection therewith, and that such water rights should ultimately be applied to the irrigation of certain lands belonging to defendant the Colorado Mortgage & Investment Company of London, Limited; and that prior to 1889 defendant allowed certain tenants of the Colorado Mortgage & Investment Company of London, Limited, to use for irrigation purposes four additional water rights upon its land. That all the water diverted from the Cache la Poudre river by means of defendant's canal at any time

has been used for the irrigation of land lying under said canal, by the owners and users of the water rights before mentioned, and only by them. That prior to 1889 all the water flowing in the Cache la Poudre river during the irrigation season was actually diverted and appropriated to beneficial purposes by means of several ditches supplied therefrom, except during the spring floods. That by reason of prior appropriations from said river the defendant irrigation company has been unable to deliver to the respective water-right owners under its canal water to the extent of 1.44 cubic feet per second to each water right, though actually needed for irrigation by all of the respective owners and users, and has prorated all the water which it was allowed to divert among its water-right owners pursuant to the stipulation and conditions contained in its water-right contracts; and that such owners have acquiesced in such pro rata distribution to the extent of the said 3661⁄2 water rights. That there is not suflicient water, not otherwise appropriated, to enable defendant irrigation company to dispose of any more water rights from and under its canal. That it has already disposed of water rights equal to, and in excess of, its ability to furnish water. That the irrigation company, for two years past, has refused to execute additional contracts, though often requested to do so by divers persons; and, except for the wrongful conspiracy hereinafter set forth, has persistently and consistently, through its authorized agents, admitted that it could not dispose of any more water rights without violating its duty to the present water-right owners. That the Colorado Mortgage & Investment Company of London, Limited, own 6,341 acres of arid land under the canal that has never been irrigated. That the managers of this company and the defendant Eaton constitute the board of directors of the irrigation company. That Eaton is largely indebted to said investment company and the irrigation company. That he (Eaton) has proposed to the defendant companies that, if they will sell to him a large number of 80acre water rights, not less than 50 or more than 128, in addition to his outstanding written contracts for the 56 water rights now in his name, and also 40 water rights which he has been using, which new water-right contract shall contain the same terms and conditions as to prorating and the right to stock as are provided for in the contracts of plaintiffs and others similarly situated, that he will buy the 6,341 acres of land from the Colorado Mortgage & Investment Company of London, Limited, and that by means of said property he will be enabled to borrow large sums of money, and be thereby able to pay his indebtedness to said companies. That the said defendants have conspired and confederated together for the purpose of carrying out the plans aforesaid, and do now

threaten, and, unless restrained by injunction, will cause to be issued by defendant irrigation company to defendant Eaton, a large number of water-right contracts in excess of the 3661⁄2 which have heretofore been used and appropriated; and will, unless so restrained, prorate the water among additional water rights to those now outstanding, and deprive plaintiffs and other water-right owners of a very material portion of the water rights they have for years beneficially used and are entitled to receive, and permanently diminish the value of said water rights, and cause said plaintiffs irreparable injury. Prays that defendants be enjoined from carrying out this conspiracy, and from issuing any water rights in excess of the 3661⁄2 now outstanding, and from prorating any of the water flowing in its canal at any time when there is not sufficient water to furnish 1.44 cubic feet per second for each 80-acre water right among any other or additional water rights in excess of the 3662.

To this complaint defendants filed general and special demurrers. The special grounds of demurrer were overruled, general demurrer sustained, and action dismissed by the district court. From this judgment plaintiffs appealed to the court of appeals, wherein the judgment of the district court was affirmed. 29 Pac. Rep. 906. Plaintiffs bring the case into this court on appeal from that judgment, predicating their right to such appeal upon the ground that the action relates to a freehold and franchise, and that the construction of constitutional provisions is necessary to the determination of the case. Appellees deny their right to an appeal, and insist that the action does not fall within the enumerated category of actions in which an appeal is allowed from the court of appeals to the supreme court, and move to dismiss the appeal for want of jurisdiction. The following statutory provisions in the act establishing the court of appeals (page 118, Laws 1891) confer and regulate the right to appeal from judgments of the court of appeals to this court. "Section 1. No writ of error from or appeal to the supreme court shall lie to review the final judgment of any inferior court, unless the judgment, or, in replevin, the value found, exceeds two thousand five hundred dollars, exclusive of costs: provided, this limitation shall not apply where the matter in controversy relates to a franchise or freehold, nor where the construction of a provision of the constitution of the state or of the United States is necessary to the determination of a case. * * Sec. 4. * Third. It shall have jurisdiction, not final, in cases where the controversy involves a franchise or freehold, or where the construction of a provision of the constitution of the state or of the United States is necessary to the decision of the case. * Sec. 15. Writs of error from or appeals to the supreme court shall lie to review

every final judgment of the court of appeals in cases which, under this act, might have been taken for review to the supreme court in the first instance." The right of appeal to this court from the district courts is provided by section 388, p. 206, Code 1887: "Sec. 388. Appeals to the supreme court from the district court * * * shall be allowed in all cases where the judgment or decree appealed from be final, and shall amount, exclusive of costs, to the sum of one hundred dollars, or relate to a franchise or freehold."

Willard Teller and H. N. Haynes, for appellants. J. W. McCreery and Hugh Butler, for appellees.

GODDARD, J., (after stating the facts.) The right to the relief demanded in this action is predated upon, and must be determined by, the terms of the contracts entered into by the respective parties; and, while those contractual rights are analogous to the rights guarantied by the constitution to appropriators of water, the action involves only the construction of private contracts between the ditch company and the plaintiffs, and no constitutional question is involved in the decision of the case. The jurisdiction of this court by appeal, therefore, depends solely upon the questior whether the action relates to a freehold. It is strenuously insisted by counsel for appellees that an action must involve a freehold to enable this court to entertain jurisdiction, basing this claim upon the third subdivision of section 4 of the act establishing the court of appeals, above cited. When construed with other sections of the act, we think the word "involve," as used in that section, must be held to be synonymous with the word "relate," and the jurisdiction of this court may be invoked upon an appeal from a judgment of the district court or of the court of appeals in actions that relate to a freehold. It is therefore necessary to ascertain and define the nature and kind of property claimed by plaintiffs in the water rights in question, and whether the nature and extent of their interests therein constitute freehold estates, and whether this action relates thereto. A freehold is defined as "any estate of inheritance or for life in either a corporeal or incorporeal hereditament existing in or arising from real property of free tenure." 2 Bl. Comm. 104. An incorporeal hereditament is "anything, the subject of property which is inheritable, and not tangible or visible." 2 Wood. Lect. 4. "A right issuing out of a thing corporate (whether real or personal) or concerning or annexed to or exercisable within the same." 2 Bl. Comm. 20; 3 Washb. Real Prop. 401. "The right of a party to have the water of a stream or water course flow to or from his lands or mill over the land of another is an incor

poreal hereditament, and an easement, or a praedial service, as defined by the civil law." Cary v. Daniels, 5 Metc. (Mass.) 238. The plaintiffs allege a right to have a certain quantity of water flow through the irrigation company's ditch. This right is an easement in the ditch. It is a right annexed to realty, and, being a perpetual right, is an incorporeal hereditament, descendible by inheritance to plaintiff's heirs, and hence a freehold estate. The subject-matter of the action is this estate. The acts threatened by defendants will, if carried out, materially diminish this estate and permanently depre ciate the value of the water rights. The object of the action being to enjoin or prevent such diminution, or, in other words, to preserve the estate of the plaintiffs, the necessary result of the decree will be, one party will gain and the other lose a material portion of such estate. The action, therefore, relates to a freehold, and this court, under the statutory provisions above cited, has jurisdiction to review the judgment of the court of appeals.

The decision by the court of appeals in this case was rendered by a divided court. We are unable to see wherein the discussion by the learned judge writing the majority opinion touching the constitutional status of irrigation companies in this state was essential to the decision of the questions involved in the case; but, inasmuch as the views expressed in that opinion are so at variance with numerous decisions of this court, we feel impelled to express our disapproval thereof, and our adherence to the doctrine heretofore announced by this court in relation to the status of canal companies organized for the purpose of carrying water for general purposes of irrigation. We adhere to the doctrine that such a canal company is not the proprietor of the water diverted by it, but that "it must be regarded as an intermediate agency existing for the purpose of aiding consumers in the exercise of their constitutional rights, as well as a private enterprise prosecuted for the benefit of its owners." Wheeler v. Irrigation Co., 10 Colo. 582, 17 Pac. Rep. 487; Reservoir Co. v. Southworth, 13 Colo. 111, 21 Pac. Rep. 1028; Strickler v. City of Colorado Springs, 16 Colo. 61, 26 Pac. Rep. 313; Combs v. Ditch Co., 17 Colo. 146, 28 Pac. Rep. 966. The appellants allege that by the terms of their contracts, when the company shall have outstanding water-right contracts sufficient to cover the amount of water that the company's canal is able to furnish, the right of the company to enter into further contracts is at an end; and that such limit has been reached. The company insists that it has the right to dispose of water rights up to the estimated capacity of its canal to carry water. The rights of the respective parties are, therefore, to be measured and determined by the construction of the contracts in question; and the controversy, as above stated, involves only their contractual rights.