upon the facts established by the pleadings | trial to the court resulted in a judgment in and the evidence, was in accordance with her favor in the sum of $270 and costs, from these rulings, and it will therefore stand af- which the defendants appeal. firmed.

Judgment affirmed.

STEELE, C. J., and HILL, J., concur.

(48 Colo. 354)

UNITED STATES HOME CO. et al. v.
O'CONNOR.

(Supreme Court of Colorado. July 5, 1910.) 1. FRAUD (§ 12*)-FALSE REPRESENTATIONLOANS ON CERTIFICATES OF STOCK.

a

A company was selling stock under scheme whereby it represented it would insure the maturity of the certificates at certain times and on which the holders could secure, in advance of that period, loans from the company thereon, with the result that the owners of some certificates would probably not receive anything thereon. The secretary and president of the company offered to sell certain certificates to a buyer; but the buyer wished a loan before the time that the certificate offered would entitle him to a loan, whereupon they represented that they could secure, from a. certificate holder, earlier certificates, on which a loan would earlier mature, if the buyer put up a bonus. The buyer put up the bonus, but received no loan or any part of the money paid in. The certificates sold the buyer were not purchased from any one else, but were unsold certificates. Held, that the transaction was fraudulent and within the rule that false representations must be made with reference to present existing or past facts | before fraud can be predicated of them.

[Ed. Note. For other cases, see Fraud, Cent. Dig. § 14; Dec. Dig. § 12.*]

2. APPEAL AND ERROR (§ 1013*) — REVIEW EVIDENCE OF DAMAGES.

Where, in a trial to the court of an action for fraud, if the action be considered as a tort action, there is some evidence to sustain the amount awarded by the court, the judgment will

not be disturbed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3993; Dec. Dig. § 1013.*] 3. APPEAL AND ERROR (§ 181*)—OBJECTIONS NOT MADE BELOW.

When no objection was made to the action of the court in consolidating causes of action, to the introduction of evidence concerning them, and no motion was made to require the plaintiff to elect, the questions will not be considered on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1141, 11512; Dec. Dig. 8 181.*]

Appeal from County Court, City and County of Denver; Chas. McCall, Judge.

The principal assignments of error are that the findings of the court and judgment were contrary to the law and the evidence. There are no written pleadings, and the facts must be obtained from the testimony, from which it appears that through the representations of Miss Duncan (who was the secretary), followed by those of J. C. Feitshans (who was the president of the appellant the United States Home Company), appellee paid to appellants money for certain certificates of stock in said company. It appears the company was selling such stock under some kind of a device or scheme whereby it was represented it would insure the maturity of such certificates at certain times and upon which the holders could secure, in advance of that period, loans from the company thereon, with the result that owners of other certificates would probably not receive anything at any time. This suit was brought to recover the money paid, with interest, for the reason that the same was secured through the false and fraudulent representations of the officials of the company as to the facts as they then existed, etc., etc., concerning which the appellee was ignorant, etc., and of which fact the officers of the company were fully advised at the time the representations were made.

It is earnestly urged by counsel for appellants that the court erred: First, in denying defendants' motion for a nonsuit, also thereafter in its findings of facts and the rendition of judgment thereon, for the reason that it had not been shown that there had been any deceit or fraud practiced upon the plaintiff by way of false representations as to present existing or past facts; second, that the representations the plaintiff relied upon were made, if at all, to matters in futuro; third, that the representations, if any, made by Mr. Feitshans and Miss Duncan, were not material representations and were not relied upon by the plaintiff; fourth, that it had not been shown that plaintiff had suffered any injury by their representations, and concerning which it is claimed that the cases of Farris v. Strong, 24 Colo. 107, 48 Pac. 963, and Adams

v. Schiffer, 11 Colo. 15, 17 Pac. 21, 7 Am. St. Rep. 202, are decisive on the propositions that false representations must be made with Unit-reference to present existing or past facts before fraud can be predicated of them.

Action by Anna O'Connor against the ed States Home Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

M. H. Kennedy, for appellants. Warwick M. Downing and Douglas A. Roller, for appellee.

We do not think the judgment is in conflict with the principles announced in the foregoing authorities, if the evidence of the appellee is to be accepted as true. From her evidence it appears that the officers of the company solicited her to purchase certain contracts HILL, J. This action was brought by the upon which she was to pay so much per appellee before a justice of the peace. Judg-month until she had received a loan from the ment was entered in her favor. The defend- company which she was to pay back to them ants appealed to the county court, where a at the rate of $7.50 per month, for each $1,000 For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

so loaned; that she could buy from them con- to the date of the rendition of judgment tracts 30, 31, and 32, which were then the would, with the payments, equal the amount lowest numbers not sold, but upon which she of the judgment, so that in case the action could not get her loan within the six months' was for moneys had and received, together time, and when it was necessary for her to with the legal interest thereon, or for a rehave it; that the appellants, Feitshans and scission of the contract, the amount is within Duncan, represented to her that contracts the rules. In case it is an action founded on Nos. 5, 6, and 7 had been bought by other tort, as is claimed by the appellants, their persons, who did not need the loans right contention that the appellee secured her loan away; that, if appellee would pay a bonus of elsewhere, and thereby no damages were $50 to these persons, appellants would get shown to exist, is not tenable. While the for her these earlier numbered contracts; evidence upon this fact is meager, it would that sufficient contracts had then been sold so follow as a matter of course that upon a that by the purchase of the earlier numbered breach of contract for the furnishing of a contracts it would insure her the loan then loan, whereby a person was compelled to seagreed upon within six months; that it was cure it elsewhere, that some slight damages, the agreement that, if she paid them the $50 such as the payment of commission, the aid bonus which was thereafter reduced to $42.- of an agent, or other matters which usually 50, she would secure the loan of $3,000 with- enter into such transactions, would, of necesin the six months; that the securing of the sity, accrue to the injured party. The contracts themselves was the method neces- amount in this case was a matter for the sary whereby the money would be loaned; trial court to determine, and there is evithat, relying upon these representations of dence upon which its judgment can be based. which the true facts were unknown to her, No objection having been made at the trial as she accepted this agreement, paid the $42.50 to the consolidation of the causes of action, prior to the issuance of these certificates to to the introduction of evidence concerning her, and after their delivery, not understand-them, or to require the plaintiff to elect, these ing them, she continued to make the pay- questions will not be discussed or considered ments upon them as therein called for to the here. The result of two nisi prius trials extent of $180. At the trial it was admitted having been in favor of the appellee, we do by the defendants that these contracts 5, 6, not think the last should be disturbed. and 7 had not been sold to other persons; The judgment is affirmed. that they were then held by the company; Affirmed. that no outside person received or was to receive the $42.50 paid as à bonus for them; but that the same was retained by the two defendants, president and secretary of the company, as a commission for making the sale to the plaintiff, clearly establishing the false and fraudulent representations of the conditions then existing as to who owned these three certificates and the reasons why a bonus would have to be paid for them, saying nothing concerning the device, scheme, or plan then in existence upon which loans were promised, which it is not necessary to pass upon, as the above representations made come clearly within the condemnation of the law as announced in the cases relied upon by the appellants.

STEELE, C. J., and GABBERT, J., concur.

(48 Colo. 343)

BOULDER & LEFT HAND DITCH CO. v.
HOOVER, Water Com'r, et al.

(Supreme Court of Colorado. July 5, 1910.).
WATERS AND WATER COURSES (§ 227*)—IRRI-
GATION DISTRICTS-POWERS OF WATER COM-
MISSIONERS.

Primarily the duties of water commissioners are to enforce the decrees of the various claimants to and users of water, from a common source, according to their terms, and where out of a common channel, have the same point several ditches, irrigating by means of laterals of diversion, a common headgate, and the same channel for some distance, the commissioners The evidence further shows that the plain- should turn out the water to satisfy the decrees under which the claimants are entitled, and the tiff, although continuing to make her pay commissioners cannot refuse to do so on the ments upon these contracts as therein provid-ground of abandonment, or that the claimant ed for, did not get her loan within the six seeks to apply the water decreed to his ditches months' period or at all; that there was no in a new place, or to settle bona fide disputes as to the relative rights of the use of water arrangement then in existence, nor were suf-under the decrees between the several claimants; ficient certificates then sold, if all payments were continued thereon, whereby she could have secured her loan within the six months, as represented by the appellants.

but such questions should be left to proceedings between the claimants.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 318; Dec. Dig. § 227.*]

Appeal from District Court, Boulder County; Christian A. Bennett, Judge.

The amount of the judgment was $270. It appears the appellee had paid to the appellants the sum of $180 upon the certificates, together with the sum of $42.50 bonus. To Application for mandatory writ of injuncadd the legal rate of interest upon these re- tion by the Boulder & Left Hand Ditch Comspective sums from the date of their payment pany against Moses Hoover, as Water Com

missioner, and others. From a judgment dis- | Wellman, Nichols and Hahn ditch, which had missing the application, plaintiff appeals. been awarded, in the adjudication of 1882, a Reversed, with directions to issue the writ.

H. M. Minor, Milton Smith, and Charles R. Brock, for appellant. A. C. Patton and James W. McCreery, for appellees.

BAILEY, J. This action was brought by the Boulder & Left Hand Ditch Company, appellant here, against the water commissioner of water district No. 6, the division engineer of division No. 1, of which water district No. 6 is a part, and the state engineer, appellees here.

priority of about ten second cubic feet of water. There is some conflict in the evidence as to the extent of this undivided interest, but that Nichols, at the time of his death, owned some interest in this ditch and its de

creed priorities, is fully established.

In 1900

As early as 1888 the plaintiff company, under agreement with Nichols, made use on its own lands of a portion of the water owned by Nichols, by virtue of the decrees to these two ditches. The water commissioner always turned into the common headgate at The pleadings and evidence show that the Twelfth Street Bridge the amount of waBoulder Creek, in its course through the city ter to which Nichols was entitled, according of Boulder, crosses Twelfth street, which is to these decrees, a portion of which, instead carried over the stream by a bridge known of being diverted into the Nichols' ditches, as the Twelfth Street Bridge. Just below had been allowed to pass on down the comthis bridge is a diverting dam and headgate, mon channel and flow into the Boulder & through which water is taken from the creek Left Hand ditch, owned by the plaintiff, and into a common channel of several ditches, used for irrigation on its lands. usually referred to as the Dry Creek ditches. Nichols died. After his death, through mesne These several ditches, irrigating by means conveyances, the plaintiff company acquired of laterals out of this common channel, have the Nichols' title to and interest in the origithe same point of diversion, a common head- nal Dry Creek ditch and the Wellman, Nichgate and the same channel for nearly a mile ols and Hahn ditch, and became the owner of their course immediately below the point of the water rights decreed thereto, a portion of diversion from Boulder creek, to a point of which, under the agreement with Nichols where the Boulder and White Rock ditch above referred to, had been continuously used branches to the north from the common chan- by it from about 1888. In 1903, Moses Hoonel; about one-half mile farther down this ver, who was then water commissioner of channel the D. H. Nichols ditch diverges water district No. 6, refused to turn in therefrom to the south and east; about one- through the common headgate the respective half mile east of the diverging point of the amounts of water to which the original Dry D. H. Nichols ditch, the Nichols North Side Creek ditch and the Wellman, Nichols and Lateral, which was the original Dry Creek Hahn ditch were entitled, according to their ditch, runs off to the north; the Wellman, decrees, although formal demand in writing Nichols and Hahn ditch branches off to the was made upon him to do so by plaintiff. south farther down the channel; about three The company thereupon appealed from the miles below the common head gate, at the decision of the water commissioner to the diTwelfth Street Bridge, the common channel vision engineer, and in turn from the decidivides into the Boulder & Left Hand ditch sion of the division engineer to the state ento the north, and the North Boulder Farmers' gineer, both of whom sustained the refusal ditch to the south. of the water commissioner. This action was then brought for a mandatory writ of injunction, commanding the water commissioned to turn into the Dry Creek and the Wellman, Nichols and Hahn ditches, at their common head gate, the amounts of water to which they were respectively entitled, according to their decrees, and for other relief.

In the original water adjudication proceedings for irrigation in water district No. 6, in the district court of Boulder county, these various ditches were all decreed independent priorities to the use of water from Boulder creek, and in their respective decrees the court found that the ditches above mentioned had their point of diversion near the Twelfth Street Bridge, in the city of Boulder, and there diverted their respective amounts of water through a common head gate. The evidence shows that the original Dry Creek ditch was built by D. H. Nichols, in the early sixties, and that the original channel and diverting works were enlarged, from time to time, upon the construction of other ditches. D. H. Nichols, until the time of his death in 1900, was the sole owner of the original Dry Creek ditch, which was granted a priority in the adjudication proceedings as of June 1, 1862, for ten second cubic feet of water. At the time of his death, Mr. Nichols was also the owner of an undivided interest in the

The north Boulder Farmers' Ditch Company, a user of water by a lateral from the common channel, as above shown, filed a petition of intervention in the case and introduced some testimony, but at the close of the trial voluntarily dismissed its petition, so that the case is one solely between the plaintiff company and the officers, charged in their official capacity, with the distribution of water for irrigation purposes. The defendants put in issue the allegations of the complaint, denying ownership in plaintiff of the Nichols water rights, and also specially pleaded abandonment.

Upon final hearing, the trial judge dismissed the case, on the theory that a question of

the change of point of diversion of the wa- | applying it unlawfully to other land, or othters decreed to the Dry Creek ditch and the erwise wrongfully uses it, in a way to inWellman, Nichols and Hahn ditch was involved, and that no decree changing the point of diversion could properly be rendered in this action, but that an application should be made under the statute, which expressly provides for such proceedings, to which all persons in interest must be made parties and have notice. To review the judgment of dismissal the plaintiff brings the case here on appeal.

jure the vested rights of others interested in the same source of supply, then such wrong is subject to correction in a suit by the one damnified. It is clear, from the evidence, that plaintiff seeks simply to apply the water decreed to the ditches in question in a new place. Whether this may lawfully and properly be done is not for the water commissioner, or his superior officers, acting in a judicial capacity and on their own initiThe question of abandonment is one which, ative, to determine, as was in effect attempton objection, may not be determined in these ed when they declined to turn water out to proceedings. The impropriety of irrigation satisfy the decrees in question. Such quesofficers, seeking to have a matter, in which tions are between the several users of water they have no personal or private right, de- for irrigation, who are directly affected, and termined, in an action in which they, in an cannot be settled in a suit against irrigation official capacity only, are defendants, is man- officials only. These executives may, and inifest. That question must be litigated in a deed should, prevent waste and insist upon suit between parties whose rights are direct-economical use, but where there is a real ly involved. This suit is by the owner of a and bona fide dispute as to the relative water right against officials, charged with rights to the use of water under decrees, the duty of the distribution of water, under between several claimants, these officers are decreed rights, between the several users not called upon to inject themselves into thereof, within their jurisdiction, to compel the controversy and decide between them. action accordingly. It is neither their duty There are no third parties here, and no nor privilege to question the decrees, where claim is asserted in behalf of any such, and regular in form, in full force and unmodified, matters affecting the rights of those not beor to attempt to impeach or nullify them, fore the court clearly may not be here ador in any way impair their efficiency. While judged. They could not be bound even if it may be that there is a degree of discre- such adjudication were undertaken and eftion vested in these officers respecting the fected. discharge of their duties, it never was in contemplation that they should assume the burden of litigating questions of dispute between the several water claimants, with reference to their respective rights under decrees duly rendered and in full force. Primarily their duties are to enforce the decrees of the various claimants to and users of water, from a common source, according to their terms. These officers are not personally concerned in controversies between the various users of water, which may only be adjusted in proper proceedings, brought for that purpose, by those who are the real parties interested in and affected thereby.

We determine, therefore, the single question that, under the pleadings and evidence, it was the duty of the water commissioner to turn out the water to satisfy these decrees, at the union headgate, agreeable to plaintiff's demand, leaving all questions of dispute, if any there be, between the several users of water from the common channel, as to the amount, manner and place of use of this particular water, as to plaintiff's right to use it at all, or any portion of it, and kindred questions, for adjustment in a proper proceeding, between the interested parties.

The judgment is reversed, with directions to the court below to issue the mandatory writ..

Judgment reversed.

STEELE, C. J., and GABBERT, J., con

Upon cur.

The

The questions are: Were the decrees rendered as claimed by plaintiff, and are they yet in force? Has it succeeded to the rights thereunder, and is it entitled to have the water turned out to satisfy them? the record, as now presented, all these questions must be answered affirmatively. mandatory writ should have been allowed. There is not the slightest ground for the contention, or assumption, that it was sought to change the point of diversion of these decreed rights. the river is the union headgate. It was there the plaintiff demanded to have the water to satisfy these decrees turned out, and the duty of the water commissioner was plain. If plaintiff, when the water is turned out to it, makes an improper use thereof,

(48 Colo. 423)

THOMAS v. RAY.

(Supreme Court of Colorado. July, 1910.)

The point of diversion from 1. REPLEVIN (§ 69*)-PLEADING-OWNERSHIP

AND POSSESSION.

In an action of replevin, plaintiff alleged that he was the owner and entitled to the possession of the animals in controversy at the time Defendant denied that plaintiff was the owner of bringing suit, which was March 2, 1907. or entitled to the possession of the animals at any time since on or about July 21, 1906. Held,