Dig. 88 115-117; Dec. Dig. § 46.*] [Ed. Note.-For other cases, see Trial, Cent. 4. APPEAL AND ERROR (§ 1058*)-ERRONEOUS EXCLUSION OF EVIDENCE. 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' Ann. Code, § 353. The claim is made that the deposition contained only testimony already given in chief, and was therefore improper in rebuttal. If this is so, it does not appear that it prejudiced the defendant, or that the discretion of the court was abused. The admission of testimony not strictly in rebuttal is a matter resting in the discretion of the trial court, and is not subject to review, excepting in case of abuse to the prejudice of the defendant. See the numerous Colorado cases referred to under the title of "Trial," 2 Mills' Digest, p. 2177, and 1 Thompson on Trials, § 346. It is also asserted that the court erred in giving an instruction because there was no testimony upon which the instruction could be based. The evidence relating to the matter intended to be covered by the instruction is omitted from the abstract for some reason, and the instruction will not be reviewed. As all the errors assigned have been noticed and found without merit, the judgment will be affirmed. Judgment affirmed. The error in excluding testimony of a disinterested witness to prove a fact testified to by a stockholder of the party calling the witness is prejudicial. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4204; Dec. Dig. § 1058.*] Appeal from District Court, Saguache County; Charles C. Holbrook, Judge. Action by Maggie O'Laughlin against the Washington Gold Mining & Milling Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial. Jesse C. Wiley and J. Warner Mills, for appellant. Albert L. Moses, for appellee. CAMPBELL, J. This is an action in support of an adverse claim. Plaintiff's Little Jonnie lode conflicts with defendant's Evening Star No. 2 and Silver Moon, and her McBrein with defendant's Bachelor lode. The judgment on the verdict was for plaintiff. As we read the record, the judgment is wrong. The location certificates of both of plaintiff's lodes are insufficient under the STEELE, 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 subse WASHINGTON GOLD MIN. & MILL. CO. quently made and filed by plaintiff's grantor, v. O'LAUGHLIN. (Supreme Court of Colorado. Oct. 4, 1909. hearing Denied Dec. 6, 1909.) but not until after the rights of defendant's Re- grantors by the location of their own lodes attached. If the law be that a totally void location certificate may be subsequently amended if the boundary lines of the location are not changed, even though the rights of third parties have intervened, it is not the law, and has not been so declared, that such amended certificate may include other or different territory, and, as to that, injuriously affect such intervening rights. The evi 1. MINES AND MINERALS (§ 21*) - CERTIFICATES OF LOCATION-AMENDMENTS EFFECT. Where the original location certificate of a mining location was insufficient because so defective as to prevent one from identifying or designating the claim on the ground, an amended certificate could not include other or different territory so as to injure intervening rights. [Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. §§ 45-50; Dec. Dig. § 21.*1 2. TIME ( 11*)-FRACTIONS OF DAY-LOCATIONS OF MINING CLAIM-PRIORITY. Where the relative priority of conflicting mining locations depends on the exact hour of the day of the filing of the location certificates, fractions of a day are taken into account, though generally fractions of a day are not considered in computing time; and, where a location certificate, not filed within the statutory time, was filed in advance of the filing, on the same day, of a junior location certificate, the former was prior in time. dence was that her amended location certificates include territory not described in the originals, but which is covered by defendant's locations. Plaintiff's Little Jonnie is subsequent in time of location to defendant's Evening Star No. 2. The location certificate of the latter was first filed in Rio Grande county, in which it was then supposed these claims 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 grantor then filed the location certificate in Saguache county, but not within the time fixed by statute therefor. In no other respect is it asserted that the Evening Star the others. The court admitted Crane's testimony upon the issues-rightly so-and should have permitted the witness Conley to testify to the same effect. We cannot say that the record affirmatively shows that the rejection of defendant's offer of proof was not prejudicial. It may be that the jury would have given Conley's testimony, if admitted, more weight than it did that of Crane, who was one of defendant's stockholders, and might have regarded it as decisive of the issue to which it was relevant. was not a valid location, if its territory was he had been there long enough, neglecting subject to appropriation. Though the location certificate of the Evening Star No. 2 was not filed in Saguache county within the statutory time, and not until after some of the statutory acts of locating the Little Jonnie had been taken, it was filed in that county on the same day that the certificate of the Little Jonnie was filed, and three hours earlier. While, generally speaking, fractions of a day are not taken into consideration in computing time, yet where, as in this case, the relative priority of conflicting mining locations depends upon the exact hour of the day of filing of their location certificates, fractions of a day are taken into account. The rule invoked does not apply to a case like this. The court in its instructions, therefore, instead of submiting it to the jury as a question of fact, as it did, should have told the jury as matter of law that the filing of the location certificate of the Evening 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 TUNNEL & MINING CO. v. stitutes the Evening Star a prior location. The defendant, in its answer, pleaded an abandonment of plaintiff's claims by the original locator, and failure to do the annual statutory assessment work for certain years. There was testimony in support of both defenses. The defendant also called as a witness a Mr. Conley, and offered to prove by him that in a certain conversation with Ed. Crane the locator of defendant's claims, Mr. O'Laughlin, made statements and admissions tending strongly to prove abandonment and nonperformance of annual labor. Upon plaintiff's objection the court refused to receive the proffered testimony, and this ruling is assigned as error, which we think is a good assignment. The ruling is sought to be upheld by plaintiff's counsel upon the theory that the offer did not purport to show, as was claimed by defendant, that the original locator took any part in the conversation, which it was claimed, if reproduced in evidence, would tend to prove these issues. The argument is technical. The offer was to prove a conversation between two men. What was then said might bind or affect both, even though one did all, or most of, the talking. But if the offer should, in the one aspect, and in the one part, be considered thus defective, it included an offer to show that the witness would testify to the same facts, concerning the alleged admissions and statements of the original locator, which were testified to by Mr. Crane, another of defendant's witnesses. Turning to Crane's testimony, it appears that he said that the original locator had admitted to him that the assessment work on his claims had not been done, and he was going to leave them to work on other claims, and that Other questions are argued; but, as they may not arise at another trial, we shall not decide them. For the reasons given, the judgment is reversed, and the cause remanded for a new trial. 1. Reversed and remanded. STEELE, C. J., and MUSSER, J., concur. FRANK. (Supreme Court of Colorado. Nov. 1, 1909. of land in the neighborhood of a stream shall be [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 77.*1 2. WATERS AND WATER COURSES (§ 68*)-POLLUTION OF STREAM-LOWER RIPARIAN PROPRIETOR-RIGHT TO DAMAGES. Where a millowner who had acquired the right to use waters artificially developed in working mines used it for milling purposes in concentrating ores, and after it had become impregnated with poisonous substances discharged it into the channel of a natural stream, to the injury of a landowner who had appropriated fore any rights of the millowner, attached, the waters from the stream for irrigation long bemillowner was responsible in damages for injury to the landowner from the pollution of the stream. Water Courses, Cent. Dig. § 59; Dec. Dig. § [Ed. Note.-For other cases, see Waters and 68.*] 3. WATERS AND WATER COURSES (§ 68*)-POL- [ July, 1895. Continually since plaintiff made LUTION OF STREAM-NECESSITY. Where defendant, in the operation of its concentrating mill, with a comparatively small expenditure could take care of the tailings on its own premises instead of discharging them into a stream from which plaintiff had appropriated waters for irrigation, defendant was not entitled to continue such discharge on the ground that its mill was absolutely dependent on the right to discharge its waste material into the stream. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 59; Dec. Dig. § 68.*] entry his lands have been irrigated by the two methods mentioned-one natural, the other artificial. Afterwards, and about the year 1902, defendant began to operate its reduction mill for the concentration of ores containing lead and zinc as the predominating minerals, but also carrying values in gold and silver. The mill was situate on the west branch of Willow creek about two miles north of plaintiff's ranch, and about a mile and a half up the stream from the headgate 4. WATERS AND WATER COURSES (§ 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 concentrating mill, uses waters which are not a part of the natural flow of a stream does not give it the right to discharge into the stream the waste water mixed with hurtful slimes, or absolve it from liability for resulting injury to third persons who had lawfully acquired rights to the use of the waters in the stream. [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 59; Dec. Dig. $ 68.*] 5. PRINCIPAL AND AGENT (§ 159**)-ACTS OF AGENT-AGENT'S LIABILITY. Where defendant, in operating a concentrating mill, polluted the waters of a stream to plaintiff's injury, it was no defense that defendant acted only as agent of mineowners whose ores it treated under contract. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 599-613; Dec. Dig. $ 159.*] 6. WATERS AND WATER COURSES (§ 74*)-POL- [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 74.*] ter escaped from defendant's mill, and were discharged into the creek in the form of poisonous tailings and slimes, and by the current were carried down the creek and therefrom into plaintiff's ditch upon his artificially irrigated lands, and upon the 60 acres of meadow land, when the annual overflow occurred, to such an extent that they have been covered and greatly injured. In other respects plaintiff has been injured; so much so that he has been obliged to remove to another tract of land, which he is attempting to bring under cultivation, and upon which he proposes to grow agricultural crops with his vested water rights; but, against his remonstrance and protest, defendant, notwithstanding the injuries which it has already inflicted, proposes hereafter, as before, to operate its mill, and foul and pollute the waters of the stream, which, if persisted in, plaintiff says, will utterly destroy his premises. Material allegations of the complaint are denied in the answer and a number of separate defenses interposed, which are noticed in the' opinion. The issue of damages was submitted to a jury, which returned a 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. Action by Anton F. Frank against the Humphreys Tunnel & Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed. and findings were made in plaintiff's favor, and a permanent injunction was awarded restraining defendant from turning waste materials and polluted waters into the stream. 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. CAMPBELL, J. In 1896 the plaintiff made an entry under the homestead laws of the United States upon 168 acres of land in Mineral county, patent title to which he afterwards obtained and still holds. and still holds. Willow creek, a natural stream, flows through it. About 60 acres of it are natural meadow lands, lying upon either side of the stream, which, without artificial irrigation, yearly produce crops of hay as the result of the annual overflow of the waters of the stream. The remaining agricultural part of the tract is irrigated by water taken out of the stream through plaintiff's ditch, to which a decreed priority has been awarded, under the appropriate statutory proceedings, as of date quire. The principal defense is that in his complaint and evidence plaintiff bases his right to recover solely on his riparian ownership. Defendant's entire argument may be thus summed up: As the doctrine of riparian rights has been abrogated in Colorado, and as the common-law rule applicable to pollution of the waters of a natural stream is but a corollary of the doctrine of riparian rights, the latter falls with the former. Manifestly, if defendant's premise, as to the basis of plaintiff's rights, is wrong, his conclusion is wrong. This court has repeatedly declared that, as between a riparian owner and an appropriator of the waters of a natural stream, the doctrine of continuous flow has never been recognized or enforced in this 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, hissult 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 any, of the millowner attached. From early times in the legislation of this state we have had a statute which prohibits any person from flooding the property of another by wa. ter, or washing down the tailings of his 01 their sluice upon the property of other persons, and it is made the duty of every miner to take care of his own tailings upon his own property or become responsible for all damages that may arise therefrom. Section 4214, Rev. St. 1908; Rev. St. 1868, p. 466, c. 62, § 8. It may be said this statute refers to placer mining. Whether it applies to the present case we need not say. Upon general principles of law it is so entirely clear that defendant is liable in damages for this pollution of the stream which has injured plaintiff, that we do not cite authorities or deem it necessary to argue such a self-evident proposition. In Suffolk G. M. & M. Co. v. San Miguel M. & M. Co., 9 Colo. App. 407, 48 Pac. 828, our Court of Appeals has gone much further than we have here in protecting a natural stream from pollution. Plaintiff says his object in inserting the paragraph was to show to the court that his lands were of such a character and so situated with reference to a natural stream as to bring them within the purview of section 3165, Rev. St. 1908, which entitles lands of this description to the use of its waters for the purpose of irrigation. Such may have been the intention of plaintiff. Whether there was any necessity for its insertion is not now important. It is, however, directly followed in paragraph 4 by the allegation that, for irrigating these lands thus described, plaintiff diverted the waters of the stream, and has seasonably and continuously since that time so used them, subject only to the rights of prior appropriators, and has also obtained a statutory decree therefor. It is obvious also that paragraph 3 may, with entire propriety, be read in connection with paragraph 10, which sets forth, as recited in the foregoing statement, that 60 acres of the tract are meadow lands, and have annually been self-irrigated as the result of the overflow of the stream. Section 3176, Rev. St, 1908, declares that a landowner who has thus enjoyed the use of water upon his premises by such natural overflow may, if from any cause such irrigation in whole or in part ceases, have the right to construct a ditch for irrigating his meadow and take water from such stream, and the date of the priority of his ditch shall relate back to the time when he first occupied and used his land as meadow land. The right way to construe a pleading is not to select a single paragraph and determine its meaning with 2. Defendant invokes another principle, which he says some of the authorities establish, that where an industry, like that of operating a mill for concentrating ores, is absolutely dependent upon the right to discharge waste material into the waters of a natural streain, one who has made an appropriation therefrom for irrigation, whether prior or subsequent to the beginning of the operation of the mill, gets only a qualified right, and takes subject to the right of the millowner to foul the stream. No such case is presented by the evidence, and we found on uncontradicted evidence, even from | operation of its mill. Plaintiff's rights were, the admission of its president, that it was entirely practical and feasible for defendant, with a comparatively small expenditure and within a few weeks' time, to take care of the tailings and waste material upon its own premises. It should do so, and not cause needless injury to another important industry. of course, paramount to any rights defendant had in the waters of the stream. Indeed defendant claims no rights whatever to the natural waters, but only the right to discharge polluted water into the stream. Plaintiff's rights were subject only to the rights acquired by prior appropriators of the water for some useful purpose, and his right, as well as theirs, as against defendant, is to have the natural waters and all accretions come down the natural channel undiminished in quality as well as quantity. Though other appropriations, to the full capacity of the stream during its ordinary flow, were made before plaintiff's rights accrued, this does not prevent him from building a ditch and diverting and using its waters whenever his seniors do not need it. Floods often occur, and the natural flow of the stream is thus 3. Another argument, possibly the same one elsewhere advanced, but in another form, is that the waters which defendant uses in operating its mill are artificially produced as the result of mining operations, which the mineowners give to defendant for its milling purposes; and since it is the owner, it may make such use of the waters as it sees fit, and, after they perform their function in the process of milling and have become impregnated with poisonous waste matter, they may be, in such form, turned into the chan- augmented. No appropriator uses water all nel of the stream by defendant at its pleasure and without incurring any liability for consequential damages to others. The fact that defendant in operating the mill uses waters which are not a part of the natural flow of a stream does not give it the absolute right to discharge into that stream the waste water mixed with hurtful slimes, or absolve it from liability for resulting injuries to third persons who have lawfully acquired prior rights to use the waters thereof for any beneficial purpose. 4. Another contention is that defendant, in operating its mill, is but the agent of the mineowners whose ores it treats under contract, therefore they, and not it, should have been sued. The mineowners are not parties to this action, and we are not passing upon their rights. Defendant cannot escape liability, if its own act has contributed to plaintiff's injury, even if others have participated in the wrong. 5. Another objection to plaintiff's recovery, interposed in various ways and at divers times, is that the natural waters of the stream were appropriated up to its full capacity, during the ordinary flow, by other appropriators whose rights attached before plaintiff's appropriation was made, and as the prior appropriations exhausted the entire ordinary natural flow, there was no water left in the stream with which plaintiff could irrigate his lands; therefore he could not have sustained any damage as the result of defendant's acts, because he had no right that was thereby infringed. This is a fallacious contention. As we have already seen, plaintiff acquired valid rights as the result of his direct appropriation from the stream, and to the overflow of the stream for his meadow lands, and these rights were vested before defendant began the construction or the time. It is well known that many streams of this state are overappropriated; yet appropriators whose rights accrue after the ordinary flow is fully appropriated have, nevertheless, acquired valuable rights, and often enjoy the use of water for their lands, which rights the law protects against trespasses of others. When the demands of the senior upon the stream cease the rights of the junior attach, and, as against a wrongdoer like the defendant, the junior is entitled to protect the stream from pollution, the same as if he were the senior and only appropriator. If the acts of defendant interfere with such rights of plaintiff, as they have, defendant must be held responsible for the resulting injury. 6. Defendant raises and argues the question whether, in times of scarcity of water, the state Constitution gives a priority to agricultural claimants over those claiming for mining. No such question is involved in this case. Defendant has acquired no rights to the waters of a natural stream either for mining or any other purpose, while plaintiff owns a decreed priority to use water for irrigation. There is no question in this case between his rights and those of an appropriator for any other purpose. The vital question, as we have elsewhere determined, is whether defendant, who has no rights at all in the waters of a natural stream, may rightfully pollute it to the injury of a landowner who has a valid right to use its waters for agricultural purposes. The jury were fully justified in returning the verdict they did, and the court's findings and decree upon the equitable branch of the case are clearly right. The judgment is therefore, affirmed. STEELE, C. J., and MUSSER, J., concur. |