facts show that the appellant, the Pioneer Irrigation District, is an irrigation district, duly organized and existing under and by virtue of the laws of the state of Idaho for the purpose of furnishing the people and landowners within said district water for irrigation purposes; that said canal constructed long prior to the laying out of said public road; that the canal was constructed in 1890, and the public road was laid out in 1907; that ever since 1890 the right of way for said canal has been and now is owned in fee by said irrigation district and its predecessors; that ever since its construction it has been used for carrying water for irrigation purposes. Both in the oral argument and in the brief filed on behalf of the county it appears that the county bases its right to prevail in this suit upon the statutes of Idaho, and on the decisions of this court in Boise City v. Boise Rapid Transit Co., 6 Idaho, 779, 59 Pac. 716, and City of Lewiston v. Booth, 3 Idaho (Hasb.) 692, 34 Pac. 809. We will first consider the sections of our statute relied upon by the respondent county. Council cites section 931, Rev. Codes, and contends that it shows the legislative intent was to compel public corporations to relieve the public of expense caused by artificial construction. Said section is as follows: "Whenever highways are laid out to cross railroads on public lands, the owners or cor SULLIVAN, C. J. This action was brought, that the judgment is contrary to law. The for the purpose of determining whether it was the duty of the ditch owner to construct a bridge across his ditch or canal when a public highway is laid out across the same after the canal or ditch has been constructed, and was submitted to the court upon an agreed statement of facts. The agreed facts show that the canal was constructed in 1890, and that the public road across the same was laid out in 1907, 17 years after the canal had been constructed. It is also stipulated that since 1890 the right of way for said canal has been, and now is, owned in fee by the Pioneer Irrigation District, a corporation, which corporation is defendant in this action; that since its construction, said canal has been owned and maintained by said irrigation district and its predecessors, and during all of said time has been used for carrying water for irrigation purposes; that said irrigation district is an irrigation district duly organized and existing under and by virtue of the laws of the state of Idaho; that on the 18th day of April, 1907, Canyon county, or the proper officers thereof, laid out and created a public road that intersected and crossed said canal at a certain point in said Canyon county, describing it, that point being in road district No. 27, and that the plaintiff in this action is the road overseer of said district; that ever since said public road was laid out, the public has been unable to cross said canal at the point where said public road is laid across it, 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 at tion 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 Pioneer 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. 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 manner of fixing the rates to be charged for water. Section 2712 provides for the right to use streets, ways, alleys, and roads for laying pipes for conducting water into a city or town; and section 2713 provides that such canal corporations must build and keep bridges in repair, and has no application whatever to water corporations like the appellant, but has application to water and canal corporations organized for the purpose of supplying cities and towns with water. See Jack v. Grangeville, 9 Idaho, 291, 74 Pac. 969. In the Revised Codes said four sections, with some changes, are found in sections 2838, 2839, 2840, and 2841. However, only the last sentence in said section 2713, Rev. St., is contained in section 2841, Rev. Codes; all that part of said section preceding said last sentence having been dropped from said section. Section 951 of the Revised Codes, is as follows: "Any person desiring and intending to run water across any public road, street or highway in this state, must first construct a ditch of sufficient size to carry all such water, and must build a good substantial bridge, with good easy grades on and off the same over such ditch or ditches not less than sixteen feet wide, of good hewn or sawed timber or lumber, not less than three inches thick, laid on good substantial timbers, not less than six inches square; said timbers shall not be laid more than three feet apart: Provided, that when the quantity of water of any ditch is such that a box or culvert will carry the same, said water may be conducted across any road, street or highway by means of such box or culvert, which must be adapted to the surface of the road, street or highway, and be built of a length of not less than sixteen feet, and in a manner so substantial as to bear and admit of uninterrupted travel: Provided, that when such bridge or box shall be constructed as above required and reported to the road supervisor of the road district where the same is located, it shall become county property and be maintained as other county bridges: Provided, that the said bridge, box or culvert is accepted by the road overseer as being built according to the above sections." Section Section 3310, Rev. Codes, is as follows: "All owners of any ditch, canal, or conduit, or any other means for conveying water, shall build substantial bridges not less than sixteen feet wide, and with boards not less than two inches in thickness (unless the same shall be on a county or state road, when such boards shall not be less than three inches thick), at all places where any county or state road crosses the same, or any road kept open and used by any neighborhood of people for their benefit and convenience. In case of neglect or refusal of such owners to build such bridges as above required, after a notice of ten days being given by the said board of coun board shall proceed to the construction of the same, and shall collect the cost thereof together with the costs of suit: Provided, that after said bridge shall have been constructed across any county or state road in accordance with the provisions of this section, it shall thereafter be maintained at the public expense." Said section 951 is a part of our statutes on highways, and section 3310 is a part of our statutes which provide for the appropriation and distribution of water. The provisions of said section 951 apply in plain terms to ditches or canals that are extended across highways that have been located and laid out prior to the construction of such ditches or canals. Section 3310 is rather obscure in the language used, and in the proviso refers to bridges that are constructed across county or state roads, evidently meaning bridges that are constructed across ditches. Bridges are not usually constructed across highways, but are constructed across streams, ditches, and perhaps other obstructions in highways. That section applies to bridges across ditches and canals, and not to bridges across roads and highways. Bridges that are constructed to complete highways are parts of the highway, and the Legislature in enacting said section evidently intended to have its provisions apply to ditches or canals that were constructed across highways after such highways had been duly located or laid out. We, therefore, conclude, under the provisions of section 3310, that it is the duty of the county to construct bridges that are required to complete all roads intersecting canals or ditches, laid out after the construction of such ditches or canals; but when ditches or canals are constructed across an existing road or highway, then it is the duty of the owner to construct proper bridges across them. It is next contended that said canal, where it is intersected by said road, is a public nuisance under the provisions of section 3656, Rev. Codes, for the reason that it obstructs the free use of said road. Said section is as follows: "Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, stream, canal, or basin, or any public park, square, street or highway, is a nuisance." It is contended that said canal is a public nuisance under the provisions of said section because it obstructs the free passage or use of said highway. Said section provides, among other things, that anything which unlawfully obstructs the free passage or use of a highway is a nuisance. But there never was a free passage or use of a highway across said canal. The county commissioners ordered a road laid out across 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 a bridge must be built, and until a bridge was built, it was not complete as a highway and capable of being unlawfully obstructed at the place where it was located across the canal. The construction of the canal was lawful, and the uses and purposes to which it had been put are lawful. It has not been adjudged a nuisance by judicial determination. Said canal was constructed and maintained under the express authority of a statute, and for that reason it cannot be deemed a nuisance under the express provision of section 3659, Rev. Codes. When a thing complained of is lawful, the burden is upon the plaintiff to show that it has become a nuisance in fact, which was not done in this The canal had an actual and lawful existence at the time the road was located and unless it is shown that it has become a nuisance, it will not be presumed that it has become such. provisions of said section 3656, Rev. Codes. While it is true the county had located a road across said canal, it is also a fact that said right of way had to be repaired in places at least, where it crossed said ditch before it was in a condition to be traveled by the public. There is a clear distinction, then, between the facts in the case at bar and the case just referred to. In City of Lewiston v. Booth, supra, the ditch involved there was across E street, and at the time the ditch was constructed, said E street was a county road, and it became the duty of those who owned said ditch to construct a bridge across it where it intersected said street or road. The decision no doubt would have been different had it appeared that the ditch was constructed prior to the laying out of the public road, or that the city had extended its limits, and said ditch had become offensive and dangerous to the health and lives of the inhabitants of that city. Those cases are not in point here. From the foregoing we conclude that the court erred in entering judgment against the appellant for the cost of the construction of said bridge. Said judgment must therefore be set aside, and it is so ordered, with costs in favor of the appellant. STEWART and AILSHIE, JJ., concur. AKRON. (Supreme Court of Colorado. Dec. 6, 1909.) MUNICIPAL CORPORATIONS (§ 96*)-ORDINANCES-PASSAGE. As the law does not require more than was passed when it received the requisite numone reading of a town ordinance, an ordinance ber of votes on the first reading, irrespective of whether such was the intention of the trus tees. The case of Boise City v. Boise City Rapid Transit Co., supra, is clearly distinguishable from the case at bar. Subdivision 10 of section 37 of the charter of Boise City (see Rev. Ordinances of Boise City, p. 12) provides that the council of said city has full power and authority "to prevent and remove nuisances and to declare what shall constitute same, and to punish persons committing or 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 across the ditch was in a dangerous and unsafe condition; that it was maintained by respondent in that condition; that the proper authorities of said city notified the owners of that fact, and directed them to repair said bridge, which they refused to do. That company was engaged in the business of conveying water through said ditch for sale and rental, and this court in that case stated as follows: "The rule is well settled that when a city extends its limits, offensive trades and businesses must be removed beyond the immediate neighborhood of residences of citizens." This rule applies to canals and ditches extended through cities and towns, and whenever such canals or ditches become a nuisance and a menace to the lives or the health of the people, the proper authorities may require their removal, or require the owners to inclose or cover the same, or to conduct the water conveyed by them through underground pipes. It nowhere appears in the case at bar that the canal or ditch referred to had become a nuisance where said bridge was placed across it. It does not appear that the business in which the respondent, irrigation district, is engaged has become offensive to the people living in that district, or that said ditch was such an ob Corporations, Cent. Dig. § 206; Dec. Dig. § [Ed. Note.-For other cases, see Municipal 96.*] Appeal from Washington County Court; C. W. Ballard, Judge. W. Kaylor was convicted of violating a town ordinance, and he appeals. Reversed. Allen & Webster, for appellant. PER CURIAM. The defendant has appealed from a judgment of conviction on a charge of violating an ordinance of the town of Akron, Washington county. There appears to have been a variance between the allegations of the complaint and the proof. The town alleged a violation of an ordinance passed May 14, 1906. It was shown prima facie that the ordinance was passed May 14th. records of May 14th show that the ordinance did not receive the requisite number of votes. In rebuttal the records of May 10th were The 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 defendant, that there was a fatal variance between the allegations and the proof; but we shall base our judgment upon the other objection, that there was no proof of a violation of the ordinance. The town attorney has filed no brief in support of the judgment, but we have carefully examined the transcript of the record, and find that there is no testimony showing, or even tending to show, that liquor was sold in the town of Akron, or within the limits prescribed by the statute. The judgment must therefore be reversed. Judgment reversed. WHITEHEAD et al. v. LINN. The demurrer was correctly sustained. Section 388 of the Civil Code, as well as the statute, permits the filing of a transcript of the judgment docket by a judgment creditor. They provide that the lien so secured shall continue for six years, unless the judgment be previously satisfied. The lien of the judgment is not destroyed by the supersedeas. The supersedeas has the same effect as an appeal bond, and merely suspends the judgment. The judgment creditor has the right to have his judgment secured by the filing of a transcript of the judgment docket, notwithstanding an appeal has been perfected. Mulligan v. Smith, 32 Colo. 409, 76 Pac. 1063. The judgment is affirmed. Judgment affirmed. CAMPBELL and MUSSER, JJ., concur. KILPATRICK v. INMAN. (Supreme Court of Colorado. Nov. 1, 1909. Civ. Code, § 388, permits the filing of a transcript of a judgment docket by the judgment creditor in any county, and provides that the lien so secured shall continue for six years unless the judgment be satisfied. A creditor filed a transcript of the judgment docket in various counties, and, after a writ of error was made a supersedeas, defendant sued for damages because of plaintiffs' refusal to cancel the transcript in the various counties. Held, that there was no cause of action as the supersedeaslivery rig, which she contracted for with plainmerely suspended the judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2264-2284; Dec. Dig. $ 485.** --- GROUNDS DEBT Defendant's failure to use and pay for a tiff, would not support an attachment on the which should have been paid at the time of ground of a debt for an article the price of delivery; there being nothing delivered under the contract. [Ed. Note.-For other cases, see Attachment, Cent. Dig. § 57; Dec. Dig. § 24.*] GROUNDS DEBT 2. ATTACHMENT (§ 32*) - GROUNDS The nonperformance of a promise is not fraud, or evidence of fraud, so that failure to use a livery rig on a certain date as agreed was a mere breach of contract, and would not support an attachment on the ground of a debt fraudulently contracted. [Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 81-87; Dec. Dig. § 32.*] 3. LIVERY STABLE KEEPERS (§ 10*)-HIRING OF VEHICLE-ACTION FOR BREACH-ADMISSION OF EVIDENCE. In a suit for defendant's failure to use a livery rig which plaintiff claimed defendant agreed to hire, where the evidence was conflicting as to the making of the contract, defendant would call at his stables, and if the rig was testifying that she told plaintiff only that she comfortable and the terms satisfactory she would [Ed. Note.-For other cases, see Livery Stable Keepers, Dec. Dig. § 10.*] 4. DAMAGES (§ 140*)-MEASURE-BREACH OF CONTRACT. hire it, testimony was admissible by defendant's I 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 A fraud was unable to ride in a vehicle such as plain- second, there was no fraud shown. tiff's, as tending to corroborate, and show the must relate to facts then existing, or which reasonableness of, defendant's version of the previously existed. The nonperformance of transaction. a promise made in the course of negotiations is not of itself a fraud or the evidence of a fraud. Adams v. Schiffer et al., 11 Colo. 15, 17 Pac. 21, 7 Am. St. Rep. 202; Farris v. Strong et al., 24 Colo. 107, 48 Pac. 963; Johnson v. Stockham, 89 Md. 358, 43 Atl. 920. If, as plaintiff claims, Mrs. Kilpatrick had as plaintiff claims, agreed, on September 1, 1905, to take his rig on September 10th, and had refused to do so, this was not a fraud, but a mere breach of contract. The court erred in overruling the defendant's motion to dismiss the writ of attachment. In a suit for breach of a contract to hire and use a livery rig to transport defendant to a certain place, a judgment for plaintiff for the entire contract price was excessive, since it allowed plaintiff more profit than he could have made had the trip been made, in which event he would have been under expense for the driver and the return trip, together with the loss of the use of the team, and the ordinary wear to the rig during the trip. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 404, 405; Dec. Dig. § 140 Error is assigned upon the rejection of Error to Routt County Court; Chas. A. certain portions of the deposition of Mrs. Morning, Judge. Action by I. I. Inman against Annie L. Kilpatrick. Judgment for plaintiff, and defendant brings error. Reversed and remanded. Hood & McLean, for plaintiff in error. HILL, J. This action was brought before a justice of the peace, and by appeal found its way to the county court of Routt county, where a trial resulted in a judgment for the plaintiff in the sum of $27.50 and cost and an attachment sustained. Plaintiff in error, defendant in the court below, brings it here upon error. Numerous errors are assigned, but we shall consider only three, as their determination necessitates a reversal of the judgment. Considering the evidence most favorable to the plaintiff in the court below, it would only tend to show that the defendant (a resident of the city of Denver) while at Steamboat Springs, contracted over the telephone with the plaintiff, a liveryman at Craig, to furnish her a rig and driver for five days at $5.50 per day, to take her and party from Craig to Rifle, she to pay all expenses en route; that on account of this engagement the liveryman hired another horse, had him shod, kept him for several days, and was at some other expense in fitting up the team; that the plaintiff in error failed to take the rig, but, for reasons of her own, secured one from another barn. Emma W. Creigh (the mother of Mrs. Kilpatrick and one of the party), by whom it was attempted to show that, upon account of her age, past 70, her physical condition, being under a doctor's care, etc., she was unable to go in a stage, and that Mrs. Kilpatrick desired for her the easiest kind of a vehicle, which was one of the reasons claimed by Mrs. Kilpatrick why she did not make a contract or agree to take plaintiff's conveyance without seeing it or knowing it was fit or adapted for her mother's need. We think the rejection of this testimony was error. The testimony of the parties concerning the ordering of the carriage was directly contradictory. Mrs. Kilpatrick testified she did not order it, but told Mr. Inman over the telephone she would call at his barn; and, if the vehicle was comfortable and the terms satisfactory, she would take it to go to Rifle. Under such conditions evidence of circumstances existing at the time the contract is alleged to have been made, tending to establish the probability or improbability of the fact, or facts, which tend to show that the making of the agreement would have been unreasonable on the part of the defendant, may be given in corroboration of her statement. Dexter v. Collins et al., 21 Colo. 455, 42 Pac. 664; Brown, Adm'r, v. Tourtelotte, Executor, 24 Colo. 204, 50 Pac. 195. The judgment is excessive. It gave to plaintiff the entire alleged contract price for the trip, although no team was ever furnished or trip made. ed or trip made. Without discussing the proper measure of damages in such cases, the plaintiff, to have made the trip, would have been to the further expense of his driver, the expense of the return trip, together with the loss of the use of the team during the period of time so consumed, as well as the ordinary wear and tear to the outfit during this period. The result of this judgment is to award him his full contract price, allowing him the use of the outfit Two grounds for attachment were alleged in plaintiff's affidavit: First, "that said debt is for an article the price of which should have been paid for at the time of the delivery thereof, and which the said debtor refused to do"; second, "that said debtor fraudulently contracted said debt by false pretenses." Both were traversed by the defendant. Neither is supported by any evidence. First, the action (if any exists) was for damages for a breach of contract, and was not for an article the price of which |