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the court erred in admitting a deposition in not sustainable on the ground that the offer did rebuttal, because the testimony was not re- not purport to show that the third person took buttal, but cumulative, and because the ques-ed, would prove the admissions, especially where

any part in the conversation, which, if reproductions therein were leading. The questions the offer included an offer to show that the witare not printed in the abstract. Besides an ness would testify to the same admissions tesobjection that a question in a deposition is tified to by another witness. leading cannot be made at the trial. Mills' Dig. $$ 115-117; Dec. Dig. § 46.*]

[Ed. Note. For other cases, see Trial, Cent. Ann. Code, § 353. The claim is made that

4. APPEAL AND ERBOB ($ 1058*)-ERRONEOUS the deposition contained only testimony al

EXCLUSION OF EVIDENCE. ready given in chief, and was therefore im- The error in excluding testimony of a disinproper in rebuttal. If this is so, it does not terested witness to prove a fact testified to by a appear that it prejudiced the defendant, or stockholder of the party calling the witness is that the discretion of the court was abused. prejudicial.


[Ed. Note. For other cases, see Appeal and The admission of testimony not strictly in Error, Cent. Dig. & 4204; Dec. Dig. $ 1058.*] rebuttal is a matter resting in the discretion

Appeal from District Court, Saguache Counof the trial court, and is not subject to review, excepting in case of abuse to the prej- ty; Charles C. Holbrook, Judge.

Action by Maggie O'Laughlin against the udice of the defendant. See the numerous Colorado cases referred to under the title of Washington Gold Mining & Milling Company.

From a judgment for plaintiff, defendant ap"Trial,” 2 Mills' Digest, p. 2177, and 1 Thompson on Trials, $ 316. It is also as-peals. Reversed and remanded for new trial. serted that the court erred in giving an in- Jesse C. Wiley and J. Warner Mills, for struction because there was no testimony up- appellant. Albert L. Moses, for appellee. on which the instruction could be based. The evidence relating to the matter intended CAMPBELL, J. This is an action in supto be covered by the instruction is omitted port of an adverse claim. Plaintiff's Little from the abstract for some reason, and the Jonnie lode conflicts with defendant's Eveninstruction will not be reviewed.

ing Star No. 2 and Silver Moon, and her MCAs all the errors assigned have been no-Brein with defendant's Bachelor lode. The ticed and found without merit, the judg- judgment on the verdict was for plaintiff. ment will be affirmed.

As we read the record, the judgment is Judgment affirmed.

wrong. The location certificates of both of

plaintiff's lodes are insufficient under the STE ELE, C. J., and CAMPBELL, J., con-law, and are void. Plaintiff's own surveyor cur.

testified that it would be impossible therefrom to identify or designate the claims on the ground. Amended location certificates to

cure the defects of the originals were subseWASHINGTON GOLD MIN. & MILL. CO. quently made and filed by plaintiff's grantor, v. O'LAUGHLIN.

but not until after the rights of defendant's (Supreme Court of Colorado. Oct. 4, 1909. Re- grantors by the location of their own lodes hearing Denied Dec. 6, 1909.)

attached. If the law be that a totally void lo1. MINES AND MINERALS ($ 21*) — CERTIFI- cation certificate may be subsequently amendCATES OF LOCATION-AMENDMENTS-EFFECT. ed if the boundary lines of the location are

Where the original location certificate of a not changed, even though the rights of third mining location was insufficient because so defective as to prevent one from identifying or des parties have intervened, it is not the law, ignating the claim on the ground, an amended and has not been so declared, that such certificate could not include other or different amended certificate may include other or territory so as to injure intervening rights.

different territory, and, as to that, injurious[Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. $$ 45-50 ; Dec. Dig. & 21.*1 ly affect such intervening rights. The evi2. TIME (8 11*)-FRACTIONS OF DAY-Loca-dence was that her amended location cer


tificates include territory not described in Where the relative priority of conflicting the originals, but which is covered by demining locations depends on the exact hour offendant's locations. the day of the filing of the location certificates,

Plaintiff's Little Jonnie is subsequent in fractions of a day are taken into account, though generally fractions of a day are not considered time of location to defendant's Evening Star in computing time; and, where a location cer- No. 2. The location certificate of the latter tificate, not filed within the statutory time, was was first filed in Rio Grande county, in filed in advance of the filing, on the same day, which it was then supposed these claims of a junior location certificate, the former was which it was then supposed these claims prior in time.

were situated. It was judicially determined [Ed. Note.--For other cases, see Time, Cent. by our Supreme Court that the area in conDig. § 53; Dec. Dig. § 11.*]

flict was in Saguache county. Defendant's 3. TRIAL (8 46*)-OFFER OF EVIDENCE-SUF- grantor then filed the location certificate in FICIENCY.

The exclusion of an offer to prove by wit- Saguache county, but not within the time ness that, in a conversation with another, a third fixed by statute therefor. In no other reperson made admissions against his interests is spect is it asserted that the Evening Star was not a valid location, if its territory was, he had been there long enough, neglecting subject to appropriation. Though the loca- the others. The court admitted Crane's testion certificate of the Evening Star No. 2 timony upon the issues-rightly so—and was not filed in Saguache county within the should have permitted the witness Conley statutory time, and not until after some of to testify to the same effect. We cannot the statutory acts of locating the Little Jon- say that the record affirmatively shows that nie had been taken, it was filed in that coun- the rejection of defendant's offer of proof ty on the same day that the certificate of was not prejudicial. It may be that the jury the Little Jonnie was filed, and three hours would have given Conley's testimony, if adearlier. While, generally speaking, fractions mitted, more weight than it did that of of a day are not taken into consideration in Crane, who was one of defendant's stockcomputing time, yet where, as in this case, holders, and might have regarded it as dethe relative priority of conflicting mining lo- cisive of the issue to which it was relevant. cations depends upon the exact hour of the Other questions are argued; but, as they day of filing of their location certificates, may not arise at another trial, we shall not fractions of a day are taken into account. decide them. The rule invoked does not apply to a case For the reasons given, the judgment is relike this. The court in its instructions, versed, and the cause remanded for a new therefore, instead of submiting it to the jury trial. as a question of fact, as it did, should have Reversed and remanded. told the jury as matter of law that the filing of the location certificate of the Evening STEELE, C. J., and MUSSER, J., concur. Star, though not within the statutory time, yet in advance of the filing of that of the Little Jonnie, so far as that particular step in locating a mining claim is concerned, con- HUMPHREYS TUNSEL & MINING CO. v. stitutes the Evening Star a prior location.

FRANK. The defendant, in its answer, pleaded an

(Supreme Court of Colorado. Nov. 1, 1909. abandonment of plaintiff's claims by the orig

Rehearing Denied Dec. 6, 1903.) inal locator, and failure to do the annual 1. WATERS AND WATER COURSES (8 77*)statutory assessment work for certain years.

POLLUTION OF WATERS-IRRIGATION-COMThere was testimony in support of both de- PLAINT. fenses. The defendant also called as a wit- of land in the neighborhood of a stream shall be

Rev. St. 1908, $ 3165, provides that owners ness a Mr. Conley, and offered to prove by entitled to use its waters for irrigation; and sechim that in a certain conversation with Ed. tion 3176 provides that all persons who shall have Crane the locator of defendant's claims, Mr. enjoyed the use of water of any natural stream O’Laughlin, made statements and admissions for irrigation, in case of the diminishing of the

water, may construct a ditch for irrigating, and tending strongly to prove abandonment and take water from the stream with the same prinonperformance of annual labor. Upon plain- ority as though the ditch had been constructed tiff's objection the court refused to receive when he first occupied the land. Plaintiff, the the proffered testimony, and this ruling is lands were traversed by a creek which de

owner of a riparian meadow, alleged that the assigned as error, which we think is a good fendant was charged with polluting, and that assignment. The ruling is sought to be up- on entering the meadow plaintiff was entitled held by plaintiff's counsel upon the theory to the benefit of the waters flowing in the nat

ural channel, undiminished except as diverted by that the offer did not purport to show, as prior appropriators. He also alleged that he was claimed by defendant, that the original had diverted the waters of the stream, and conlocator took any part in the conversation, tinuously since that time used them, subject which it was claimed, if reproduced in evi- only to the rights of prior appropriators. Held,

that the dence, would tend to prove these issues. not base plaintiff's alleged rights solely on The argument is technical. The offer was those acquired as a riparian proprietor. to prove a conversation between two men. [Ed. Note.-For other cases, see Waters and What was then said might bind or affect Water Courses, Dec. Dig. § 77.*] both, even though one did all, or most of. 2. WATERS AND WATER COURSES (8 68*)-POL

LUTION OF STREAM_LOWER RIPARIAN PROthe talking. But if the offer should, in the

PRIETOR-RIGHT TO DAMAGES. one aspect, and in the one part, be consid- Where a millowner who had acquired the ered thus defective, it included an offer to right to use waters artificially developed in show that the witness would testify to the working mines used it for milling purposes in

concentrating ores, and after it had become imsame facts, concerning the alleged admis- pregnated with poisonous substances discharged sions and statements of the original locator, it into the channel of a natural stream, to the which were testified to by Mr. Crane, an- injury of a landowner who had appropriated other of defendant's witnesses. Turning to fore any rights of the millowner, attached, the

waters from the stream for irrigation long beCrane's testimony, it appears that he said millowner was responsible in damages for inthat the original locator had admitted to jury to the landowner from the pollution of him that the assessment work on his claims

the stream, had not been done, and he was going to Water Courses, Cent. Dig. & '59; Dec. Dig. $

[Ed. Note.-For other cases, see Waters and

§ leave them to work on other claims, and that 1 68.*1

3. WATERS AND WATER COURSES (8 68*)-POL-July, 1895. Continually since plaintiff made LUTION OF STREAM-NECESSITY.

Where defendant, in the operation of its entry his lands have been irrigated by the concentrating mill, with a comparatively small two methods mentioned-one natural, the expenditure could take care of the tailings on other artificial. Afterwards, and about the its own premises instead of discharging them in- year 1902, defendant began to operate its to a stream from which plaintiff had appropria reduction mill for the concentration of ores ated waters for irrigation, defendant was not entitled to continue such discharge on the containing lead and zinc as the predominatground that its mill was absolutely dependent ing minerals, but also carrying values in gold on the right to discharge its waste material into and silver. The mill was situate on the west the stream.

[Ed. Note.—For other cases, see Waters and branch of Willow creek about two miles Water Courses, Cent. Dig. '59; Dec. Dig. s north of plaintiff's ranch, and about a mile 08.*]

and a half up the stream from the headgate 4. WATERS AND WATER COURSES (8 68*)-Pol- of his ditch. In the process of concentrating

LUTION - ARTIFICIAL WATERS — DISCHARGE ores large quantities of rock and waste matINTO STREAM.

That defendant, in operating a concentrat- ter escaped from defendant's mill, and were ing mill, uses waters which are not a part of the discharged into the creek in the form of natural flow of a stream does not give it the poisonous tailings and slimes, and by the right to discharge into the stream the waste current were carried down the creek and water mixed with hurtful slimes, or absolve it therefrom into plaintiff's ditch upon his artifrom liability for resulting injury to third persons who had lawfully acquired rights to the ficially irrigated lands, and upon the 60 acres use of the waters in the stream.

of meadow land, when the annual overflow [Ed. Note.-For other cases, see Waters and occurred, to such an extent that they have Water Courses, Cent. Dig. 59; Dec. Dig. S been covered and greatly injured. In other 68.*]

; 5. PRINCIPAL AND AGENT (8 159*)—ACTS of respects plaintiff has been injured; so much


so that he has been obliged to remove to Where defendant, in operating a concen- another tract of land, which he is attempting trating mill, polluted the waters of a stream to bring under cultivation, and upon which to plaintiff's injury, it was no defense that de- he proposes to grow agricultural crops with fendant acted only as agent of mineowners whose ores it treated under contract.

his vested water rights; but, against his [Ed. Note. For other cases, see Principal and remonstrance and protest, defendant, notAgent, Cent. Dig. 88 599-613; Dec. Dig. $withstanding the injuries which it has al159.*]

ready inflicted, proposes hereafter, as before, 6. WATERS AND WATER COURSES ($ 74*)--POL- to operate its mill, and foul and pollute the LUTION-PRIOR APPROPRIATION-EFFECT.

In an action for pollution of a water waters of the stream, which, if persisted in, course, the surplus of which had been used by plaintiff says, will utterly destroy his premplaintiff to irrigate his lands, it was no defense ises. Material allegations of the complaint to his right to recover for injuries sustained are denied in the answer and a number of that the natural waters of the stream had been appropriated to its full capacity during the or- separate defenses interposed, which are nodinary flow by other prior appropriators. ticed in the opinion. The issue of damages

[Ed. Note. For other cases, see Waters and was submitted to a jury, which returned a Water Courses, Dec. Dig. $ 74.*]

verdict in plaintiff's favor for about $1,000. Appeal from District Court, Costilla Coun- The equitable issues were tried to the court, ty; Charles C. Holbrook, Judge.

and findings were made in plaintiff's favor, Action by Anton F. Frank against the and a permanent injunction was awarded reHumphreys Tunnel & Mining Company. Judg- straining defendant from turning waste mament for plaintiff, and defendant appeals.terials and polluted waters into the stream. Affirmed.

1. The discussion has taken a much wider Thomas, Bryant & Malburn, for appellant. range than the necessities of the case reAlbert L. Moses, for appellee.

quire. The principal defense is that in his

complaint and evidence plaintiff bases his CAMPBELL, J. In 1896 the plaintiff made right to recover solely on his riparian owneran entry under the homestead laws of the ship. Defendant's entire argument may be United States upon 168 acres of land in Min- thus summed up: As the doctrine of riparieral county, patent title to which he after an rights has been abrogated in Colorado, wards obtained and still holds. Willow

Willow and as the common-law rule applicable to creek, a natural stream, flows through it. pollution of the waters of a natural stream About 60 acres of it are natural meadow is but a corollary of the doctrine of riparian lands, lying upon either side of the stream, rights, the latter falls with the former. . which, without artificial irrigation, yearly Manifestly, if defendant's premise, as to the produce crops of hay as the result of the basis of plaintiff's rights, is wrong, his conannual overflow of the waters of the stream. clusion is wrong. This court has repeatedly The remaining agricultural part of the tract declared that, as between a riparian owner is irrigated by water taken out of the stream and an appropriator of the waters of a natthrough plaintiff's ditch, to which a decreed ural stream, the doctrine of continuous flow priority has been awarded, under the ap- has never been recognized or enforced in this propriate statutory proceedings, as of date jurisdiction. Whether the riparian owner,

as against others, has still some rights, the allegations and consider them together. which the law recognizes, and, if so, what | By so doing here it clearly appears that they are, the exigencies of the pending case paragraph 3 was not intended to set up a do not require us to determine; for, as we claim of right in plaintiff as a riparian ownshall presently see, defendant is radically er. On the contrary, the complaint shows wrong in saying that plaintiff relies upon that plaintiff is claiming ownership of a riparian ownership, or the doctrine of con- water right for part of his lands as the retinuous flow. If he did, what, if any, his sult of a diversion through a constructed rights are, for the reason already given, ditch and subsequent beneficial application, we withhold expression of opinion. Plaintiff and of another and distinct appropriation expressly disclaims reliance on the doctrine for his meadow lands, which the statute itof riparian rights, and claims nothing from self gives him without any affirmative act the circumstance that his lands border on a of his own in withdrawing water from the natural stream, except that, by reason of its stream. Other allegations of the complaint location with reference to the stream, his charge that it is these rights thus lawfully meadow lands have become entitled to the acquired and possessed which defendant by use of its overflow waters, which the law his wrongful acts has practically destroyed. safeguards. It is the third paragraph of the We then have this case as made by the complaint on which defendant predicates the pleadings, which is abundantly sustained by contention we are now considering. It reads: the evidence: A millowner who has acquir"That the said lands are traversed by the ed the right to the use of waters artificially said Willow creek, and that upon entering developed in the working of mines uses it the same the plaintiff became entitled to the for milling purposes in concentrating ores, use and benefit of the waters of said creek, and after it has become impregnated with following in its natural channel, and un- poisonous and noxious substances discharges diminished in quality or quantity, except as it, in the form of tailings and slimes, into the same may have been diverted or ap- the channel of a natural stream, to the inpropriated by others under the laws of Colo- jury of a landowner who has made an aprado prior to the appropriation of the same propriation of the waters of the stream for by the plaintiff, as aforesaid.”

irrigating purposes long before the rights, if Plaintiff says his object in inserting the any, of the millowner attached. From early paragraph was to show to the court that his times in the legislation of this state we have lands were of such a character and so situ- had a statute which prohibits any person ated with reference to a natural stream as from flooding the property of another by wa. to bring them within the purview of section ter, or washing down the tailings of his oi 3165, Rev. St. 1908, which entitles lands of their sluice upon the property of other perthis description to the use of its waters for sons, and it is made the duty of every miner the purpose of irrigation. Such may have to take care of his own tailings upon his been the intention of plaintiff. Whether own property or become responsible for all there was any necessity for its insertion is damages that may arise therefrom. Section not now important. It is, however, directly 4214, Rev. St. 1908; Rev. St. 1868, p. 466, c. followed in paragraph 4 by the allegation 62, $ 8. It may be said this statute refers to that, for irrigating these lands thus describ- placer mining. Whether it applies to the ed, plaintiff diverted the waters of the stream, present case we need not say. Upon general and has seasonably and continuously since principles of law it is so entirely clear that that time so used them, subject only to the defendant is liable in damages for this pollurights of prior appropriators, and has also tion of the stream which has injured plainobtained a statutory decree therefor. It is tiff, that we do not cite authorities or deem obvious also that paragraph 3 may, with en- it necessary to argue such a self-evident tire propriety, be read in connection with proposition. In Suffolk G. M. & M. Co. v. San paragraph 10, which sets forth, as recited in Miguel M. & M. Co., 9 Colo. App. 407, 48 Pac. the foregoing statement, that 60 acres of the 828, our Court of Appeals has gone much tract are meadow lands, and have annually further than we have here in protecting a been self-irrigated as the result of the over- natural stream from pollution. flow of the stream. Section 3176, Rev. St, 2. Defendant invokes another principle, , 1908, declares that a landowner who has which he says some of the authorities estabthus enjoyed the use of water upon his lish, that where an industry, like that of oppremises by such natural overflow may, if erating a mill for concentrating ores, is abfrom any cause such irrigation in whole or solutely dependent upon the right to disin part ceases, have the right to construct a charge waste material into the waters of a ditch for irrigating his meadow and take natural streain, one who has made an apwater from such stream, and the date of the propriation therefrom for irrigation, wheth. priority of his ditch shall relate back to the er prior or subsequent to the beginning of time when he first occupied and used his the operation of the mill, gets only a qualiland as meadow land. The right way to con- fied right, and takes subject to the right of strue a pleading is not to select a single the millowner to foul the stream. No such paragraph and determine its meaning with case is presented by the evidence, and we

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found on uncontradicted evidence, even from operation of its mill. Plaintiff's rights were, the admission of its president, that it was of course, paramount to any rights defendentirely practical and feasible for defendant, ant had in the waters of the stream. Indeed with a comparatively small expenditure and defendant claims no rights whatever to the within a few weeks' time, to take care of natural waters, but only the right to disthe tailings and waste material upon its own charge polluted water into the stream. Plainpremises. It should do so, and not cause tiff's rights were subject only to the rights needless injury to another important in- . acquired by prior appropriators of the water dustry.

for some useful purpose, and his right, as 3. Another argument, possibly the same well as theirs, as against defendant, is to one elsewhere advanced, but in another form, have the natural waters and all accretions is that the waters which defendant uses in come down the natural channel undiminished operating its mill are artificially produced in quality as well as quantity. Though other as the result of mining operations, which the appropriations, to the full capacity of the mineowners give to defendant for its milling stream during its ordinary flow, were made purposes; and since it is the owner, it may before plaintiff's rights accrued, this does make such use of the waters as it sees fit, not prevent him from building a ditch and and, after they perform their function in the diverting and using its waters whenever his process of milling and have become impreg- seniors do not need it. Floods often occur, nated with poisonous waste matter, they and the natural flow of the stream is thus may be, in such form, turned into the chan- augmented. No appropriator uses water all nel of the stream by defendant at its pleas- the time. It is well known that many streams ure and without incurring any liability for of this state are overappropriated; yet apconsequential damages to others. The fact propriators whose rights accrue after the orthat defendant in operating the mill uses dinary flow is fully appropriated have, nevwaters which are not a part of the natural ertheless, acquired valuable rights, and often flow of a stream does not give it the absolute enjoy the use of water for their lands, which right to discharge into that stream the waste rights the law protects against trespasses of water mixed with hurtful slimes, or absolve others. When the demands of the senior upit from liability for resulting injuries to on the stream cease the rights of the junior third persons who have lawfully acquired attach, and, as against a wrongdoer like the prior rights to use the waters thereof for defendant, the junior is entitled to protect any beneficial purpose.

the stream from pollution, the same as if he 4. Another contention is that defendant, in were the senior and only appropriator. If operating its mill, is but the agent of the the acts of defendant interfere with such mineowners whose ores it treats under con- rights of plaintiff, as they have, defendant tract, therefore they, and not it, should have must be held responsible for the resulting inbeen sued. The mineowners are not parties jury. to this action, and we are not passing upon 6. Defendant raises and argues the questheir rights. Defendant cannot escape liabil- tion whether, in times of scarcity of water, ity, if its own act has contributed to plain- the state Constitution gives a priority to agritiff's injury, even if others have participated cultural claimants over those claiming for in the wrong.

mining. No such question is involved in this 5. Another objection to plaintiff's recovery, case. Defendant has acquired no rights to interposed in various ways and at divers the waters of a natural stream either for times, is that the natural waters of the mining or any other purpose, while plaintiff stream were appropriated up to its full ca- owns a decreed priority to use water for irpacity, during the ordinary flow, by other rigation. There is no question in this case appropriators whose rights attached before between his rights and those of an appropriplaintiff's appropriation was made, and as ator for any other purpose. The vital questhe prior appropriations exhausted the entire tion, as we have elsewhere determined, is ordinary natural flow, there was no water whether defendant, who has no rights at all left in the stream with which plaintiff could in the waters of a natural stream, may rightirrigate his lands; therefore he could not fully pollute it to the injury of a landowner have sustained any damage as the result of who has a valid right to use its waters for defendant's acts, because he had no right agricultural purposes. that was thereby infringed. This is a falla- The jury were fully justified in returning cious contention. As we have already seen, the verdict they did, and the court's findings plaintiff acquired valid rights as the result and decree upon the equitable branch of the of his direct appropriation from the stream, case are clearly right. The judgment is thereand to the overflow of the stream for his fore, affirmed. meadow lands, and these rights were vested before defendant began the construction or STEELE, C. J., and MUSSER, J., concur.

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