seem to have been utilized by them dur ing their occupancy of the land. They had a right to appropriate water sufficient for the present, and contemplated necessary irrigation of the land occupied by them, but the amount to which their prior right attached must be restricted to the quantity needed for that purpose. "It thus seems," says Mr. Justice LORD, in Simmons v. Winters, 27 Pac. Rep. 7, (decided this term,) "that, in order to make a valid appropriation of water, it is required to be made for some beneficial purpose then existing or contemplated, and that the amount of water appropriated must be restricted to the quantity needed for the purpose. While Cleaver and Peters could rightfully appropriate water not only for the present, but also for the future, needs of the land, the water so appropriated must have been utilized within a reasonable time in the purpose for which it was appropriated, or the right thereto was lost. What constitutes a reasonable time is a question of fact, depending upon the circumstances of each particular case. From 1863 to 1877, the date of defendant's settlement, there does not seem to have been used for the necessary irrigation of the land now owned by the plaintiff to exceed 50 inches of the water appropriated by Cleaver and Peters, nor does the acreage of the land in cultivation seem to have been materially increased since that time. This, we think, was a sufficient length of time in which to make an actual application of the water to the uses intended, and the right to the surplus not so applied became lost and abandoned. So that the amount of water being utilized in 1877-50 inches-should be the limit of plaintiff's right. Although she has no property in the water of the stream flowing in its natural channel above the point of diversion, yet she has a most important right over it with respect to such water. She is entitled to have the water of the stream continue to flow in its usual manner, through the natural channel or bed of the stream, down to the head of her ditch, to the extent or amount of her appropriation, without diversion or material interruption, during the irrigation season, if she needs that amount of water for the necessary irrigation of her land. She is entitled to have in the natural bed or channel of the stream, at the head of her ditch, during the irrigating season, a sufficient quantity of water for the necessary irrigation of her land, not exceeding 50 inches. While she is entitled to 50 inches of water if necessary for the irrigation of her land, if she does not need that amount she must allow the surplus to remain in the stream, and cannot complain if it is used by the other settlers on the creek, whether above or below her. At the time of the commencement of this suit defendant was diverting all the waters of the creek, while plain- | tiff's grain, vegetables, fruit, and other crops were suffering for want of irrigation. The decree of the court below will therefore be reversed, and a decree entered here in accordance with this opinion.

(1 Colo. App. 40

HOTZ V. SCHOOL-DIST. No. 9, HUERFANO

COUNTY.

(Court of Appeals of Colorado. June 30, 1891.) SCHOOL-TEACHERS-LICENSE-COMPENSATION.

Though Gen. St. Colo. § 3055, prohibits the district school board from employing any teacher who shall not possess the prescribed license to teach, in force at the date of employment, and provides that any one so teaching without license shall forfeit all claim to compensation out of the school fund for the term, one who is employed by the board to teach, when, as they are aware, she has no license, but who shortly afterwards procures one, may maintain an action against the board for compensation.

Error to district court, Huerfano county. Homer A. Cole, for plaintiff in error. D. McCaskill, for defendant in error.

BISSELL, J. This action was brought by Mary E. Hotz against a school district of Huerfano county, to recover a sum which she alleged to be due her under a contract of employment entered into by the board of directors of the school-district. It was satisfactorily shown that in August of 1886 the board met and decided to employ her as a teacher for the school year next ensuing. The secretary notified the teacher of what had been done, and she accepted the terms offered. On the 5th of September following Miss Hotz went to La Veta, where the school was situate, saw the members of the board, and arranged with them for the commencement of her school on the following day, and for the procurement of a temporary certificate to entitle her to teach in Huerfano county until the time of the regular examination of teachers in November. At this time it was stated by Miss Hotz, and understood by the board, that she did not possess a certificate of the county superintendent of Huerfano county entitling her to teach in that locality, and that it would be neces sary for her to procure a temporary authority to act till the November examination. This temporary certificate was procured, and, on the 6th of September, Miss Hotz commenced her school under this authority, with the knowledge and concurrence of the directors of the school-district, and continued to teach under those circum. stances for the ensuing five months. In November she procured her regular certificate. At the expiration of five months the board of directors discharged her from the employment, and, as the record shows, notwithstanding diligent efforts on her part to procure another engagement, she remained unemployed during the balance of the year. This suit was brought to re. cover the stipulated wages as damages for the breach of the contract. Several defenses were interposed, but no proof was offered in support of them; but, upon motion for a nonsuit, the complaint was dismissed, because it appeared from the testimony that at the time of the offer of hiring by the board, and its acceptance by the teacher, she possessed no certificate from the proper authorities of Huerfano county entitling her to teach there. Upon the case made this is the only practical question before the court for consideration. Section 3055 of the General Statutes

inhibits the district board from employing any teacher who shall not possess a license to teach, issued by the proper authority, which shall be in force at the date of employment; and the statute contains the further provision: "And any teacher who shall commence teaching in any such school, without such license, shall forfeit all claims to compensation out of the school fund for the term so teaching without such license." It is thus evident that the rightfulness of the action of the court below in dismissing the case depends upon the construction to be given to this particular section. The statute is undoubtedly intended to be operative both as to the board and as to the teacher. The results of a departure from its provisions are widely different in the two cases. While it is enacted that the district board shall not employ a teacher who, at the date of the employment, is without the evidence of authority to teach, issued by one of the persons authorized to execute a certificate, no penalty is provided for a breach of the statute by the board itself. It is wholly unnecessary to determine what the consequences to the board would be in the event of its violation by them. This case only concerns the matter of the violation by the teacher, and as to the teacher a specific penalty is provided. Under these circumstances, the only legitimate construction of the statute must be that the penalty is only enforceable, and can only be held to attach in the case mentioned, and that is in the case where the teacher shall commence to teach not having obtained a certificate. Where, as here, the statute contains two provisions, -one of which is a prohibition to the board, and the other of which is a penalty enforceable against the teacher under certain circumstances,-the true construction must be that only in the event of a violation of the provision containing the penalty can it be held that the teacher is without a right of action. The evident intention of the legislature was to prevent the employment of teachers who did not possess the evidence of qualification prescribed by the statute. The prohibition to the board was simply intended to impose upon the officers of the school-district the duty of seeing to it that the teacher whom they hired should possess the requisite qualifications. It is true that at the time the board met for the purposes of employing the teacher, and when they wrote their letter containing the offer of employment, as well as at the date of the letter of acceptance, the teacher did not have the statutory evidence of her qualifications which entitled her to teach in Huerfano county. This, however, should not deprive her of the right of action, or entitle the board to break the contract into which they subsequently entered, unless they be able to assign some sufficient legal excuse for the breach. The circumstances and the facts of the case are such that it may very properly be held that the employment of Miss Hotz should be deemed

completed as of the date when the services were commenced, since she was qualified, when she entered upon the discharge of her duties, with the knowledge and concurrence of the board, which possessed full authority for employment. Schoo!-Dist. v. Dilman, 22 Ohio St. 194.

Should it be contended that the board entered into a contract in August which was void under the statute and unenforceable by the teacher, it may well be held that a valid implied contract arose, as between the board and Miss Hotz, when, as a duly-qualified teacher, she entered upon the discharge of her duties on the 6th of September, and continued therein for the ensuing five months. If it be said that it is impossible to ascertain what the terms of this implied contract are, it is replied that the express contract may be looked at to ascertain the terms of the implied one, which the teacher performed until she was discharged. The commencement of the school by the teacher, with the knowledge and consent of the board, after she had received a certificate of qualification, was equivalent to the making of a new contract upon the terms of the one into which they attempted to enter at their meeting held in August. Scott v. SchoolDist., 46 Vt. 452. This construction and these reasons are well supported by a consideration of the purposes which the legislature evidently had in view, and of the circumstances which necessarily exist in this state in its various school-districts. If it happened that the teacher did not possess a certificate issued by the state authority, the certificate must be issued by the superintendent of the county where the school is to be taught. Few of the teachers to be employed are residents of the county wherein they teach. The times fixed for the public examinations of teachers are not concurrent with the commencement of the school. Negotiations must be entered into, as between the board and the teacher, antecedent to the time of their arrival in the county in which they are to discharge their duties. The mischief to be guarded against is the teaching of a school by a teacher who does not possess the necessary qualification. A construc. tion of the statute which guards the difficulty sought to be provided against protects both the teacher and the district. There are cases containing similar statutes which hold a contrary doctrine; but the views here expressed, which are well supported by the two cases cited, seem more in accord with the evident purposes of the statute, and to afford more equal protection to the rights of all parties concerned. It is quite possible that, upon a subsequent trial of this case, the board may be able, under the defenses which they interposed, to show a sufficient legal excuse for the action which they took. they desire to escape the consequences of their act in discharging the teacher before the expiration of the school year, they assume the burden of proving a sufficient excuse. The judgment must be reversed.

If

(1 Colo. App. 32)

MILLER et al. v. PoTOSHINSKY. (Court of Appeals of Colorado. June 30, 1891.) APPEAL-REVIEW-Weight of EVIDENCE.

The verdict of the jury in an action for services will not be disturbed on appeal, where the issues were submitted to it under proper instructions, and there is some evidence to support the verdict.

Appeal from district court, Arapahoe courty

W. W. Cover and Geo. C. Norris, for appellants.

In

BISSELL, J. This controversy grows out of an alleged contract of hiring. 1884 Joseph Potoshinsky was a Jewish rabbi living in Chicago. Some time in December of that year the appellants, Miller and Krepitsky, opened a corre spondence with the rabbi looking to his employment to render them certain specified service. The final letter, which contains the offer of employment, in substance undertakes to pay Potoshinsky $35 per month for his services,-$20 to kill cattle according to the Jewish law, and $15 for the instruction of their children. Without details, this was their substantial proposition. This offer was accepted, and the rabbi came to Denver, and rendered the service for which he had been engaged. Substantially, there is no controversy as to these propositions. It may be stated that in the trial court some question was raised as to the insufficiency of the correspondence to make a legal contract, but the judge very properly held that, if the correspondence was followed by a performance under its proposition, it was ample as a contract to bind the appellants, and a breach would give a cause of action. The principal defense was rested upon the alleged performance by the promisors up to a certain date, when, according to their contention, the contract was modified, and substantially abandoned, with the consent of the rabbi, who expressly, and by his conduct, accepted the responsibility of a Jewish congregation in place of that which resulted from the letters. That there was some sort of a modification or change in the relation of the parties is evident from the verdiet of the jury, who accepted neither version given as entirely accurate, and found that the engagement had been entered into, but that it had been subsequently so modified as to entitle the appellants to a reduction of the amount claimed. The appellants maintain that the verdict was not a just one, and that it is unsupported by the evidence. This is the only error alleged, discussed, or relied on. In reality, nothing else is apparent in the record upon which an argument could be predicated. This is not available for the purposes of reversal. The case, as presented, is not brought within any of the well-recognized rules which cover such cases. The employment and the performance were both established, and, under instructions which plainly and clearly expressed the law, the two remaining inquiries, whether the contract had been modified or whether it had been terminated, were left to the jury. The verdict disv.27p.no.1-2

posed of those questions, and cannot be said to be without support from the testimony. It is wholly unnecessary to ascertain the date or the extent of the modification as expressed in the verdict. It is enough that it is sustained by the evidence to such an extent that no appellate tribunal would be justified in setting it aside. The judgment must be affirmed. (1 Colo. App. 22)

MELSHEIMER V. SULLIVAN. (Court of Appeals of Colorado. June 23, 1891.) VICIOUS DOGS-INJURIES BY-NEGLIGENCE OF

OWNER.

Defendant kept a dog, admitted to be ferocious and accustomed to bite, tied in an alley by a chain some six or eight feet long. The alley, though private, was easy of access at one end, and frequented by defendant's employes. and others, and plaintiff, a policeman in pursuit of a suspicious character, entered this alley, and, approaching the dog without seeing it, was seriously bitten by it. Held, that defendant is liable, it being negligence for him to keep a dog of such a disposition in such a manner, and plaintiff being rightfully on the premises when he was injured.

Appeal from district court, Arapahoe county.

Browne & Putnam, for appellant. W. B. Felker, for appellee.

RICHMOND, P. J. Appellee herein brought this action to recover for injuries received from being bitten and otherwise injured by a dog kept by the appellant, and which, it is alleged, appellant knew was accustomed to attack and bite mankind. Appellant answered, specifically denying the allegations in the complaint, and as an additional defense claimed that the injury received was the result of appellee's negligence. The record discloses the fact to be that appellant is the owner of a brewery, and in the alley adjoining the brewery, part of the premises belonging to him, he kept a dog chained in a kennel near the entrance to the cellar where he had stored his malt; that the length of the chain was between five and eight feet; that appellee, a policeman, was in pursuit of a suspicious character, and, believing that he had entered this alley, went into it hunting for the person, and that while so engaged he, without seeing the dog or the kennel, or having any knowledge of the fact that the dog was there, advanced near enough to the kennel to be bitten by the dog; that the alley, though private, was easy of access at one end, and frequented by employes of appellant and others. The ownership of the dog and his ferocity were confessed at the trial, and are admitted in the argument bere. It is also shown that appellee received considerable medical attention for a period of 9 days, and that he was unable to do any work of any consequence for a period of 16 days. The disposition of the dog to bite mankind was not only established by the admissions of the appellant, but also by evidence of other witnesses, and especially by his former master. The appellant testified that he kept the dog chained in the same place at all times, never suffered him to go at large, and kept him for the purpose of protecting his premises from strangers and tramps;

that if a stranger should approach the kennel the dog would certainly bite him. Trial by jury. Verdict for plaintiff in the sum of $800. On motion for a new trial, the court requested plaintiff to remit $300, which was done, and judgment on the verdict for $500 was entered. To reverse this judgment this appeal is prosecuted.

In the argument of the case appellant says that the true question involved is, "May the owner of property keep on his own premises a vicious dog, when constantly confined on the premises, and kept from running at large, for the protection of his property?" He answers this in the affirmative, and displays much facetiousness, ability, and ingenuity in presenting his side of the proposition. We will accept the foregoing proposition in the following language: "That one is not liable for the damages caused by his dog, though he knows he has vicious propensities, if he exercises proper care and diligence to secure him so that he will not injure any one who does not unlawfully provoke or intermeddle with him." But this principle is not applicable to the circumstances in this particular case. The appellee assumed that, in the pursuit of his duty, he had a right to enter this alley in search of the person whom he was seeking. True it is that he was there voluntarily, but he was there innocently; and, being there under those circumstances and receiving the injury which he did, we feel no hesitancy in saying that he was entitled to recover.

This question has received the attention of some of the ablest judges in this country and in England, and a careful review of the cases leads us to the conclusion that the gist of the action is in the keeping of the animal after knowledge of its mischievous disposition. In Marble v. Ross, 124 Mass. 44, MORTON, J., lays down this rule: "The law imposes a stringent responsibility upon a man who knowingly keeps a vicious and dangerous animal. He is liable to any person who, without contributory negligence on his part, is injured by such animal, and he cannot exonerate himself by showing that he used care in keeping and restraining the animal. He takes the risk of being able to keep him safely so that he shall not injure others. The owner's negligence is in keeping the animal knowing that it is dangerous. In Muller v. McKesson, 73 N. Y. 196, the rule is announced that, "in an action against the owner of a ferocious dog or other animal, for injuries inflicted by it, the gravamen or the action is the keeping of the animal with knowledge of its propensities; and, as to the latter, proof that the animal is of a savage and ferocious nature is equivalent to express notice. "The owner is bound to keep the animal secure at his peril, and, if it does mischief, negligence is presumed. This presumption cannot be rebutted by proof of care on the part of the owner in keeping or restraining it, and he is absolutely liable, unless relieved by proof of some act or omission on the part of the person injured." In Partlow v. Haggarty, 35 Ind. 178, it was held that "whoever keeps an animal accustomed to attack or bite mankind, with knowledge of its dangerous propensities,

is prima facie liable to an action for damages at the suit of any person attacked or injured by the animal, without proof of any negligence or fault in the securing or taking care of it. The gist of the action is the keeping of the animal after knowledge of its mischievous disposition." In Sherfey v. Bartley, 4 Sneed, 58, it is said: "The defendant knew his dog was vicious, and disposed to attack and bite persons, and was bound to have so confined him as to prevent him from doing mischief.” Brooks v. Taylor, 65 Mich. 208, 31 N. W. Rep. 837, was an action for injuries inflicted by a bull, and it was held that "the negligence in such a case consists in keeping such an animal after notice of its dangerous habits; and whoever keeps an animal accustomed to attack and injure mankind is prima facie liable in an action on the case at the suit of any person injured, without any averment of negligence or default in securing and taking care of the animal. If in such a case it is shown, as a matter of defense, that the plaintiff willfully provoked the animal, or was grossly negligent in going near it, with knowledge of its vicious habits, he cannot recover. In Earl v. Van Alstine, 8 Barb. 630, after reviewing the various authorities, SELDEN, J., says: "The authorities seem to point to the following conclusions: First, one who owns or keeps an animal of any kind becomes liable for any injury the animal may do, only on the ground of some actual or presumed negligence on his part; sec ond, it is essential to the proof of negligence, and sufficient evidence thereof, that the owner be shown to have had notice of the propensity of an animal to do mischief; third, proof that the animal is of a savage and ferocious nature is equivalent to proof of express notice." Pickering v. Orange, 1 Seam. 492; Brice v. Bauer, 108 N. Y. 428, 15 N. E. Rep. 695. The principle here contended for by appellant is most thoroughly covered in Laverone v. Mangianti, 41 Cal. 138. In that case RHODES, C. J., delivering the opinion of the court, said: "It is insisted, on behalf of the defendants, that a person may lawfully keep a fero. cious dog,-one that is accustomed to bite mankind. That position may be conceded, and it may also be conceded that he has the same right to keep a tiger. The danger to mankind and the injury, if any is suffered, comes from the same source, the ferocity of the animal. In determining the responsibility of the keeper for an injury inflicted by either animai, the only difference I can see between the two cases is that, in the case of an injury caused by a dog, the knowledge of the keeper that the dog was ferocious must be alleged and proven, for all dogs are not ferocious, while, in the case of a tiger, such knowledge will be presumed from the nature of the animal. The circumstances in that case were that "the dog was chained under the steps leading to the defendant's house in such a manner that he could not reach any one ascending the steps; that the plaintiff, in entering the house upon a lawful business, was ascending the steps, when one of the steps, which was loose, slipped from its position, and the plaintiff's leg went through the

opening, when it was seized and bitten by the dog under the steps." This is a much stronger case for the defendant than the case at bar, for here, in an alley frequented by the employes of the defendant and by other persons, as testified to by Downing, -an alley easy of access at one end,-this dog was kept chained, but so chained that it was capable of inflicting an injury, and did inflict an injury, and its disposition to inflict such injury was well known to the defendant. One of the best-considered cases is the case of Johnson v. Patterson, 14 Conn. 1, wherein this language is used: "A man may not, in this country, use dangerous or unnecessary instruments for the protection of his property against trespassers. Such instruments may be used in England, but the principles on which their decisions purport to rest are not sustainable or applicable here. The true principles of the common law are recognized here, and a man may use that force which is necessary to protect his property, and no more; and he may keep and use such instruments and no other, as the same necessary degree of force will justify. A dog is an instrument for protection. A ferocious one is a dangerous instrument, and the keeping of him on the premises to protect them against trespassers is unlawful, upon the same principle that setting spring guns or concealed spears or placing poisonous food is unlawful." This case is followed and approved by the supreme court of Connecticut in Woolf v. Chalker, 31 Conu. 121. In the particular case at bar it is ad. .mitted that the dog was vicious,-accustomed to bite. We must, to use the language of the court in Woolf v. Chalker, supra, say that “the defendant had no right to keep such a dog for any purpose, unless in an inclosure or building in the night season, and cautiously, as a protection against criminal wrorg-doers. Certainly he could not keep him on his premises in the day-time in such manner that a person, by accident, mistake, or a voluntary or involuntary trespass, might be exposed to his fury and be injured. In this case, if the plaintiff was a trespasser at all, he was so unintentionally, involuntarily, and by mistake." This, it occurs to us, is quite sufficient to settle the liability of the defendant to the plaintiff or appellee for the injuries sustained. It is assigned for error that the court erred in its instructions to the jury. Without giving in detail the instructions, we think it is sufficient to say that we do not concur with appellant's counsel in this view. We see nothing in the instructions not sustained by the authorities cited, and, for the same reason, the court was warranted in refusing the instructions asked by defendant. The last and only error to which our attention is called is that the damages are excessive. In view of the fact that the jury found a verdict for $800, and that the trial court, which heard all the testimony, determined that it should sustain a ver. dict for $500, we do not feel at liberty to disturb the judgment. Our conclusion is that the three allegations necessary to be made and proved in a case of this character-First, that the dog was vicious and in the habit of biting mankind; sec

WHITE V. BUELL. (No. 14,077.) (Supreme Court of California. July 10, 1891.) VENDOR AND VENDEE-FORFEITURE.

A contract for the sale of land provided for a payment of $1,000 at date of contract, $4,000 within 30 days, and $35,000 at a later date, and declared that, if the vendee failed to pay the $1,000 or the $35,000 as agreed, the contract should terminate, and the vendor need not return the $1,000. The vendee paid the $1,000, and the $4,000, and then abandoned the contract, and the vendor sold the land to another. Held, that

the vendee was entitled to a return of the $4,000. Following Cleary v. Folger, d4 Cal. 316, 24 Pac. Rep. 280.

Commissioners' decision. Department 1. Appeal from superior court, Santa Barbara county; R. M. DILLARD, Judge. Wilber F. George, for appellant. W. C. Stratton, for respondent.

BELCHER, C. C. The facts stated in the complaint in this case are as follows: On the 20th day of August, 1887, the parties to the action entered into a written contract, whereby the defendant agreed to sell to the plaintiff certain lands in Santa Barbara county for the sum of $120,000, to be paid as follows: $1,000 at the date of the contract; $4.000 within 30 days thereafter; $35,000 on or before November 1, 1887; and $80,000 at such time thereafter as the plaintiff should on November 1, 1887, elect, not exceeding 3 years from date. The contract then says: "At the time of the payment of said thirty-five thousand dollars, the party of the first part [defendant] shall execute to the party of the second part [plaintiff] a proper deed, conveying to said party of the second part said land by good title, free from incumbrances, and at the same time the party of the second part shall either pay to the party of the first part the balance of said purchase price, or shall execute to the party of the first part a first mortgage on said property to secure the payment of said eighty thousand dollars, with interest thereon at the rate of eight per cent. per year, payable yearly. It is further understood and agreed that if the party of the second part does not pay said four thousand dollars within thirty days, or said thirty-five thousand dollars on or before the first day of November, 1887, this contract shall terminate, and the party of the first part shall not thereafter be under any obligations by reason of this contract, nor need he return said one thousand dollars, or any part of it." As required by the contract, plaintiff paid to the defendant $1,000 at the time of the exe cution thereof, and $4,000 within 30 days thereafter. Nothing further was done by either of the parties until on or about November 1, 1887, when plaintiff decided and elected to proceed no further under the contract, and to forfeit the $1,000 first paid by him. He then so notified defend