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SULLIVAN, C. J. This action was brought, that the judgment is contrary to law. The for the purpose of determining whether it facts show that the appellant, the Pioneer was the duty of the ditch owner to construct Irrigation District, is an irrigation district, a bridge across his ditch or canal when a duly organized and existing under and by public highway is laid out across the same virtue of the laws of the state of Idaho for after the canal or ditch has been construct the purpose of furnishing the people and ed, and was submitted to the court upon an landowners within said district water for agreed statement of facts. The agreed facts irrigation purposes; that said canal was show that the canal was constructed in 1890, constructed long prior to the laying out of and that the public road across the same said public road; that the canal was conwas laid out in 1907, 17 years after the canal structed in 1890, and the public road was had been constructed. It is also stipulated laid out in 1907; that ever since 1890 the that since 1890 the right of way for said right of way for said canal has been and canal has been, and now is, owned in fee by now is owned in fee by said irrigation disthe Pioneer Irrigation District, a corporation, trict and its predecessors; that ever since which corporation is defendant in this action; its construction it has been used for carrythat since its construction, said canal has | ing water for irrigation purposes. Both in been owned and maintained by said irrigation the oral argument and in the brief filed on district and its predecessors, and during all behalf of the county it appears that the of said time has been used for carrying water county bases its right to prevail in this suit for irrigation purposes; that said irrigation upon the statutes of Idaho, and on the decidistrict is an irrigation district duly organ- sions of this court in Boise City v. Boise ized and existing under and by virtue of the Rapid Transit Co., 6 Idaho, 779, 59 Pac. 716, laws of the state of Idaho; that on the 18th and City of Lewiston v. Booth, 3 Idaho day of April, 1907, Canyon county, or the (Hasb.) 692, 31 Pac. S09. proper officers thereof, laid out and created a We will first consider the sections of our public road that intersected and crossed said statute relied upon by the respondent councanal at a certain point in said Canyon coun- ty. Council cites section 931, Rev. Codes, ty, describing it, that point being in road dis- and contends that it shows the legislative trict No. 27, and that the plaintiff in this ac- intent was to compel public corporations to tion is the road overseer of said district; that relieve the public of expense caused by artiever since said public road was laid out, the ficial construction. Said section is as follows: public has been unable to cross said canal at "Whenever high ways are laid out to cross the point where said public road is laid across railroads on public lands, the owners or corit, for the lack of a bridge; that it was nec- porations using the same must, at their own essary that a bridge be constructed across expense, so prepare their road that the pubsaid canal for the convenience of the public; lic highway may cross the same without that on the 14th day of May, 1908, the road danger or delay, and when the right of way overseer of said district acting under the for a public highway is obtained through instructions of the county commissioner of the judgment of any court, over any railsaid county, served notice upon the president road, no damage must be awarded for the of said irrigation district, directing said dis- simple right to cross the same.” That sectrict to construct a bridge over said canal attion applies to highways laid out across the point of intersection with said public road; railroads on public lands, and has no referthat the president of said district, under the ence whatever to canals and ditches. Counauthority and direction of the board of trus- sel next cites section 2713 of the Revised tees of said district, refused to build said Statutes of 1887, which section is as follows: bridge, on the ground that said canal was “Every water or canal corporation must constructed prior to the time that said pub-construct and keep in good repair at all lic road was laid out, and because of that times for public use, across their canal, fact it was the duty of the county to build flume or water pipe, all of the bridges that said bridge, and not of said irrigation dis- the board of commissioners of the county trict; that thereafter, and before the bring, in which such canal is situated may require, ing of this action, Canyon county, by and the bridges being on the lines of public highthrough its said overseer, built said bridge, ways and necessary for public uses in conand that the cost of said bridge, in material nection with such highways; and all waterand labor, was $29.45; that said irrigation works must be so laid and constructed as district refuses to pay said sum so expend- not to obstruct public highways." Said seced, on the ground that it was not its duty tion 2713, Rev. St. applies exclusively to corunder the law to build the same. Upon the porations formed for the purpose of supplystipulated facts the cause was presented to ing water to cities and towns. That section the district court, and the court found that is contained in chapter 5, tit. 4, Civ. Code the l'ioneer Irrigation District was liable (Rev. St. 1887), and its title is "Water and upon said facts, and entered judgment Canal Corporations." That chapter conagainst it for the sum of $29.45, the cost of tains but four sections, 2710 to 2713, incluthe construction of said bridge. From that sive. Section 2710 refers to the contracts of

. judgment this appeal was taken.

canal corporations for supplying cities and the duties of water corporations and the board shall proceed to the construction of the manner of fixing the rates to be charged for same, and shall collect the cost thereof towater. Section 2712 provides for the right gether with the costs of suit: Provided, that to use streets, ways, alleys, and roads for after said bridge shall have been constructlaying pipes for conducting water into a city ed across any county or state road in accordor town; and section 2713 provides that such ance with the provisions of this section, it canal corporations must build and keep shall thereafter be maintained at the public bridges in repair, and has no application expense.” Said section 951 is a part of our whatever to water corporations like the ap- statutes on highways, and section 3310 is a pellant, but has application to water and part of our statutes which provide for the canal corporations organized for the pur- appropriation and distribution of water. The pose of supplying cities and towns with wa- provisions of said section 951 apply in plain ter. See Jack v. Grangeville, 9 Idaho, 291, terms to ditches or canals that are extend74 Pac. 969.

ed across highways that have been located In the Revised Codes said four sections, and laid out prior to the construction of such with some changes, are found in sections ditches or canals. Section 3310 is rather ob2838, 2839, 2840, and 2841. However, only scure in the language used, and in the prothe last sentence in said section 2713, Rev. viso refers to bridges that are constructed St., is contained in section 2841, Rev. Codes ; across county or state roads, evidently meanall that part of said section preceding said ing bridges that are constructed across ditch: last sentence having been dropped from said es. Bridges are not usually constructed section. Section 951 of the Revised Codes, is across highways, but are constructed across as follows: "Any person desiring and intend-streams, ditches, and perhaps other obstrucing to run water across any public road, tions in highways. That section applies to street or highway in this state, must first bridges across ditches and canals, and not construct a ditch of sufficient size to carry to bridges across roads and highways. Bridall such water, and must build a good sub-ges that are constructed to complete highstantial bridge, with good easy grades on and ways are parts of the highway, and the Legoff the same over such ditch or ditches not islature in enacting said section evidently inless than sixteen feet wide, of good hewn or tended to have its provisions apply to ditchsawed timber or lumber, not less than three es or canals that were constructed across inches thick, laid on good substantial tim- highways after such highways had been duly bers, not less than six inches square; said located or laid out. We, therefore, conclude, timbers shall not be laid more than three under the provisions of section 3310, that it feet apart: Provided, that when the quantity is the duty of the county to construct bridof water of any ditch is such that a box or ges that are required to complete all roads culvert will carry the same, said water may intersecting canals or ditches, laid out after be conducted across any road, street or high- the construction of such ditches or canals; way by means of such box or culvert, which but when ditches or canals are constructed must be adapted to the surface of the road, across an existing road or highway, then it

, street or highway, and be built of a length of is the duty of the owner to construct proper not less than sixteen feet, and in a manner bridges across them. so substantial as to bear and admit of unin- It is next contended that said canal, where terrupted travel: Provided, that when such it is intersected by said road, is a public nuibridge or box shall be constructed as above sance under the provisions of section 3656, required and reported to the road supervisor Rev. Codes, for the reason that it obstructs of the road district where the same is locat- the free use of said road. Said section is as ed, it shall become county property and be follows: "Anything which is injurious to maintained as other county bridges: Pro- health, or is indecent or offensive to the vided, that the said bridge, box or culvert is senses, or an obstruction to the free use of accepted by the road overseer as being built property, so as to interfere with the comaccording to the above sections." Section fortable enjoyment of life or property, or un3310, Rev. Codes, is as follows: "All owners lawfully obstructs the free passage or use, of any ditch, canal, or conduit, or any other in the customary manner, of any navigable means for conveying water, shall build sub- lake, or river, stream, canal, or basin, or any stantial bridges not less than sixteen feet public park, square, street or highway, is a wide, and with boards not less than two nuisance." It is contended that said canal is inches in thickness (unless the same shall be a public nuisance under the provisions of on a county or state road, when such boards said section because it obstructs the free shall not be less than three inches thick), at passage or use of said highway. Said secall places where any county or state road tion provides, among other things, that anycrosses the same, or any road kept open and thing which unlawfully obstructs the free used by any neighborhood of people for their passage or use of a highway is a nuisance. benefit and convenience. In case of neglect But there never was a free passage or use or refusal of such owners to build such brid- of a highway across said canal. The county ges as above required, after a notice of ten commissioners ordered a road laid out across days being given by the said board of coun- said canal. It was located across said canal, of being obstructed as a road. In other struction in a highway as to come within the words, to complete the highway at that point provisions of said section 3656, Rev. Codes. a bridge must be built, and until a bridge While it is true the county had located a was built, it was not complete as a highway road across said canal, it is also a fact that and capable of being unlawfully obstructed said right of way had to be repaired in places at the place where it was located across the at least, where it crossed said ditch before it canal. The construction of the canal was was in a condition to be traveled by the lawful, and the uses and purposes to which public. There is a clear distinction, then, it had been put are lawful. It has not been between the facts in the case at bar and the adjudged a nuisance by judicial determina- case just referred to. In City of Lewiston tion. Said canal was constructed and main-v. Booth, supra, the ditch involved there tained under the express authority of a stat- was across E street, and at the time the ditch ute, and for that reason it cannot be deemed was constructed, said E street was a county a nuisance under the express provision of road, and it became the duty of those who section 3659, Rev. Codes. When a thing com-owned said ditch to construct a bridge across plained of is lawful, the burden is upon the it where it intersected said street or road. plaintiff to show that it has become a nui- The decision no doubt would have been difsance in fact, which was not done in this ferent had it appeared that the ditch was case. The canal had an actual and lawful constructed prior to the laying out of the existence at the time the road was located public road, or that the city had extended and unless it is shown that it has become a its limits, and said ditch had become offennuisance, it will not be presumed that it has sive and dangerous to the health and lives become such.

of the inhabitants of that city. Those cases The case of Boise City v. Boise City Rapid are not in point here. Transit Co., supra, is clearly distinguishable From the foregoing we conclude that the from the case at bar. Subdivision 10 of sec- court erred in entering judgment against the tion 37 of the charter of Boise City (see Rev. appellant for the cost of the construction of Ordinances of Boise City, p. 12) provides said bridge. Said judgment must therefore that the council of said city has full power be set aside, and it is so ordered, with costs and authority “to prevent and remove nui- in favor of the appellant. sances and to declare what shall constitute same, and to punish persons committing or STEWART and AILSHIE, JJ., concur. suffering nuisances and to provide the manner of their removal and to make the cost of such removal a lien upon the property where such nuisances existed.

* " The rec- KAYLOR V. PEOPLE ex rel. TOWN OF ord in that case showed that the bridge

AKRON. across the ditch was in a dangerous and un- (Supreme Court of Colorado. Dec. 6, 1909.) safe condition; that it was maintained by MUNICIPAL CORPORATIONS (8 96*)-ORDINANrespondent in that condition; that the prop- CES-PASSAGE. er authorities of said city notified the own

As the law does not require more than ers of that fact, and directed them to repair was passed when it received the requisite num

one reading of a town ordinance, an ordinance said bridge, which they refused to do. That ber of votes on the first reading, irrespective company was engaged in the business of con- of whether such was the intention of the trusveying water through said ditch for sale and

tees. rental, and this court in that case stated as Corporations, Cent. Dig. 206; Dec. Dig. §

[Ed. Note.--For other cases, see Municipal follows: "The rule is well settled that when 96.*] a city extends its limits, offensive trades and businesses must be removed beyond the im

Appeal from Washington County Court; C. mediate neighborhood of residences of citi-W. Ballard, Judge.

W. zens." This rule applies to canals and ditch

W. Kaylor was convicted of violating a es extended through cities and towns, and town ordinance, and he appeals. Reversed. whenever such canals or ditches become a Allen & Webster, for appellant. nuisance and a menace to the lives or the health of the people, the proper authorities PER CURIAM. The defendant has appealmay require their removal, or require the ed from a judgment of conviction on a charge owners to inclose or cover the same, or to of violating an ordinance of the town of Akconduct the water conveyed by them through ron, Washington county.

ron, Washington county. There appears to underground pipes. It nowhere appears in have been a variance between the allegations the case at bar that the canal or ditch re- of the complaint and the proof. The town ferred to had become a nuisance where said alleged a violation of an ordinance passed bridge was placed across it. It does not ap- May 14, 1906. It was shown prima facie that pear that the business in which the respond the ordinance was passed May 14th. The ent, irrigation district, is engaged has be- records of May 14th show that the ordinance come offensive to the people living in that did not receive the requisite number of votes. district, or that said ditch was such an ob- In rebuttal the records of May 10th were

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produced, showing that the ordinance was, in the various counties where same had been passed on first reading on May 10th, and post- recorded.” The defendant in error having deponed for third reading. As the law does clined to cancel the record so made, the plainnot require more than one reading of town tiffs brought this action for damages, alleging ordinances, the ordinance was passed when that, by reason of the recording of said tranit received the requisite number of votes on script and the continuance of the same on the the first reading, and we cannot consider record and the publicity given thereto, their whether such was or was not the intention of credit and reputation had suffered great damthe trustees. No other reading being requir- age and impairment, and that they had been ed, all other proceedings shown by the rec- greatly harassed, hindered, and embarrassed ords must be regarded as surplusage. If in the conduct of their business. A demurrer proper objections had been made which would to the complaint was sustained, and the plainhave afforded the city, if sustained, an op- tiff elected to stand by the complaint. Judgportunity to amend its complaint, we might ment was rendered for the defendant. have sustained the position of counsel for The demurrer was correctly sustained. defendant, that there was a fatal variance Section 388 of the Civil Code, as well as the between the allegations and the proof; but statute, permits the filing of a transcript of we shall base our judgment upon the other the judgment docket by a judgment creditor. objection, that there was no proof of a viola- They provide that the lien so secured shall tion of the ordinance.

continue for six years, unless the judgment The town attorney has filed no brief in sup- be previously satisfied. The lien of the judgport of the judgment, but we have carefully ment is not destroyed by the supersedeas. examined the transcript of the record, and The supersedeas has the same effect as an find that there is no testimony showing, or appeal bond, and merely suspends the judgeven tending to show, that liquor was sold in ment. The judgment creditor has the right to the town of Akron, or within the limits pre- have his judgment secured by the filing of a scribed by the statute. The judgment must transcript of the judgment docket, notwiththerefore be reversed.

standing an appeal has been perfected. MulJudgment reversed.

ligan v. Smith, 32 Colo. 409, 76 Pac. 1063.

The judgment is affirmed.

Judgment affirmed. WHITEHEAD et al. v. LINN. (Supreme Court of Colorado. Dec. 6, 1909.)

CAMPBELL and MUSSER, JJ., concur. APPEAL AND ERROR ($ 485*) - TRANSCRIPT EFFECT OF APPEAL.

Civ. Code, $ 388, permits the filing of a transcript of a judgment docket by the judgment creditor in any county, and provides that

KILPATRICK V. INMAN. the lien so secured shall continue for six years unless the judgment be satisfied. A creditor (Supreme Court of Colorado. Nov. 1, 1909. filed a transcript of the judgment docket in

Rehearing Denied Dec. 6, 1909.) various counties, and, after a writ of error was 1. ATTACHMENT ($ 24*)

8
GROUNDS

DEBT made a supersedeas, defendant sued for damages because of plaintiffs' refusal to cancel the

CREATED BY SALE. transcript in the various counties. Held, that

Defendant's failure to use and pay for a

. there was no cause of action as the supersedeas livery rig, which she contracted for with plain

not merely suspended the judgment.

[Ed. Note.--For other cases, see Appeal and ground of a debt for an article the price of Error, Cent. Dig. 88 2264-2281; Dec. Dig. $ which should have been paid at the time of 485.*]

delivery; there being nothing delivered under

the contract. Error to District Court, City and County

[Ed. Note.-For other cases, see Attachment, of Denver; F. T. Johnson, Judge.

Cent. Dig. & 57; Dec. Dig. $ 24.*] Action by Andrew Whitehead and another 2. ATTACHMENT ($ 32*) – GROUNDS DEBT against Kate A. Linn. Judgment in favor of

FRAUDULENTLY CONTRACTED.

The nonperformance of a promise is not defendant, and plaintiffs bring error. Af- fraud, or evidence of fraud, so that failure to firmed.

use a livery rig on a certain date as agreed

was a mere breach of contract, and would not T. E. McIntyre, for plaintiff in error An- support an attachment on the ground of a debt drew Whitehead. Cranston, Pitkin & Moore, fraudulently contracted. for defendant in error.

[Ed. Note. For other cases, see Attachment,

Cent, Dig. $S 81-87; Dec. Dig. § 32.*] STEELE, C. J. The defendant in error, 3. LIVERY STABLE KEEPERS (> 10*)—HIRING

$ having procured a judgment in the district

OF VEHICLE-ACTION FOR BREACH-ADMIScourt, filed a transcript of the judgment dock

SION OF EVIDENCE.

In a suit for defendant's failure to use a et in various counties in the state. After livery rig which plaintiff claimed defendant the writ of error was made a supersedeas, agreed to hire, where the evidence was conflictthe plaintiffs in error demanded of the de- ing as to the making of the contract, defendant

testifying that she told plaintiff only that she fendant in error that she “release, cancel, and I would call at his stables, and if the rig was annul said transcript of the judgment docket comfortable and the terms satisfactory she would

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hire it, testimony was admissible by defendant's , should have been paid for at the time of mother, who was to go in the rig, that on ac- the delivery thereof; nothing was delivered; count of her age and physical condition she was unable to ride in a vehicle such as plain- second, there was no fraud shown. A fraud tiff's, as tending to corroborate, and show the must relate to facts then existing, or which reasonableness of, defendant's vercion of the previously existed. The nonperformance of transaction.

a promise made in the course of negotiations [Ed. Note.-For other cases, see Livery Stable is not of itself a fraud or the evidence of a Keepers, Dec. Dig. § 10.*]

fraud. Adams v. Schiffer et al., 11 Colo. 15, 4. DAMAGES (8 140*)— MEASURE-BREACH OF CONTRACT.

17 Pac. 21, 7 Am. St. Rep. 202; Farris v. In a suit for breach of a contract to hire Strong et al., 24 Colo. 107, 48 Pac. 963; Johnand use a livery rig to transport defendant to a certain place, a judgment for plaintiff for the as plaintiff claims, Mrs. Kilpatrick had

son v. Stockham, 89 Md. 358, 43 Atl. 920. If, , a allowed plaintiff more profit than he could have agreed, on September 1, 1905, to take his made had the trip been made, in which event rig on September 10th, and had refused to he would have been under expense for the do so, this was not a fraud, but a mere driver and the return trip, together with the loss of the use of the team, and the ordinary breach of contract. The court erred in overwear to the rig during the trip.

ruling the defendant's motion to dismiss the [Ed. Note.-For other cases, see Damages, writ of attachment. Cent. Dig. SS 404, 405; Dec. Dig. § 140ms]

Error is assigned upon the rejection of Error to Routt County Court; Chas. A. certain portions of the deposition of Mrs. Morning, Judge.

Emma W. Creigh (the mother of Mrs. KilAction by I. I. Inman against Annie L. patrick and one of the party), by whom it Kilpatrick. Judgment for plaintiff, and de- was attempted to show that, upon account fendant brings error. Reversed and re- of her age, past 70, her physical condition, manded.

being under a doctor's care, etc., she was Hood & McLean, for plaintiff in error.

unable to go in a stage, and that Mrs. Kil

patrick desired for her the easiest kind of HILL, J. This action was brought be a vehicle, which was one of the reasons fore a justice of the peace, and by appeal claimed by Mrs. Kilpatrick why she did not found its way to the county court of Routt make a contract or agree to take plaintiff's county, where a trial resulted in a judgment conveyance without seeing it or knowing it for the plaintiff in the sum of $27.50 and was fit or adapted for her mother's need. cost and an attachment sustained. Plaintiff We think the rejection of this testimony in error, defendant in the court below, was error. The testimony of the parties brings it here upon error.

concerning the ordering of the carriage was Numerous errors are assigned, but we directly contradictory. Mrs. Kilpatrick tesshall consider only three, as their determina- tified she did not order it, but told Mr. Intion necessitates a reversal of the judgment. man over the telephone she would call at Considering the evidence most favorable to his barn; and, if the vehicle was comfortable the plaintiff in the court below, it would and the terms satisfactory, she would take only tend to show that the defendant (a it to go to Rifle. Under such conditions eviresident of the city of Denver) while at dence of circumstances existing at the time Steamboat Springs, contracted over the tele- the contract is alleged to have been made, phone with the plaintiff, a liveryman attending to establish the probability or imCraig, to furnish her a rig and driver for probability of the fact, or facts, which tend five days at $5.50 per day, to take her and to show that the making of the agreement party from Craig to Rifle, she to pay all ex- would have been unreasonable on the part penses en route; that on account of this en- of the defendant, may be given in corroboragagement the liveryman hired another horse, tion of her statement. Dexter v. Collins et had him shod, kept him for several days, al., 21 Colo. 455, 42 Pac. 664; Brown, Adm'r, and was at some other expense in fitting up v. Tourtelotte, Executor, 24 Colo. 204, 50 the team; that the plaintiff in error failed Pac. 195. to take the rig, but, for reasons of her own, The judgment is excessive. It gave to secured one from another barn.

plaintiff the entire alleged contract price for Two grounds for attachment were alleged the trip, although no team was ever furnishin plaintiff's affidavit: First, "that said debt ed or trip made. Without discussing the is for an article the price of which should proper measure of damages in such cases, have been paid for at the time of the deliv- the plaintiff, to have made the trip, would ery thereof, and which the said debtor re- have been to the further expense of his fused to do”; second, "that said debtor driver, the expense of the return trip, tofraudulently contracted said debt by false gether with the loss of the use of the team pretenses.” Both were traversed by the during the period of time so consumed, as defendant. Neither is supported by any evi-well as the ordinary wear and tear to the dence. First, the action (if any exists) was outfit during this period. The result of this for damages for a breach of contract, and judgment is to award him his full contract was not for an article the price of which price, allowing him the use of the outfit

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