that the denial puts in issue the averments of ownership and right of possession. [Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 257-279; Dec. Dig. § 69.*] 2. PLEADING (§ 343*)-MOTION FOR JUDGMENT. Where the pleadings raise a material question of fact which must be determined from testimony before a judgment can be rendered, the motion for judgment on the pleadings must be denied. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 1048; Dec. Dig. § 343.*] 3. PLEADING (§ 349*)-MOTION FOR JUDGMENT ADMISSIONS OTHER CONTROVERTED Is SUES. A motion for judgment on the pleadings cannot be sustained unless under the admitted facts the moving party would be entitled to a judgment without regard to what the findings might be on the facts upon which issue is joined, and a judgment on the pleadings cannot be rendered in favor of plaintiff unless on the admissions of the answer no other judgment is possible than that prayed in the complaint. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1067-1069; Dec. Dig. § 349.*] 4. PLEADING (§ 349*)-MOTION FOR JUDGMENT -ADMISSIONS BY FAILURE TO DENY. A judgment cannot be rendered on the pleadings on motion of plaintiff, where the answer contains a denial of the material allegations of the complaint, even though the answer sets up a special defense separately stated which admits the allegations of the complaint by a failure to deny. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1067-1069; Dec. Dig. § 349.*] Error to District Court, Montrose County; Sprigg Shackleford, Judge. Action by Tallie E. Thomas against Tom Ray. Plaintiff filed a motion for judgment on the pleadings, which was overruled, and he elected to stand on the motion, and the cause was dismissed. Plaintiff brings error. Affirmed, Selig & Crose, for plaintiff in error. Catlin & Blake, for defendant in error. Bell, manner specified; that defendant wrongfully took them from the range and from the possession of plaintiff, and has ever since wrongfully and unjustly detained them, and now detains them, without the consent of plaintiff, to his damage in the sum of $100; and that before the commencement of this action he demanded of defendant the return thereof, "but defendant refuses to surrender same and is now in possession thereof without any title or claim of any kind." The first defense is as follows: "First. The defendant denies that the plaintiff was entitled to the immediate possession of two Hereford bulls (brauded as described in complaint), or that he was the owner thereof at the time of the commencement of this suit, or that he was such owner or entitled to the possession of said bulls at any time since on or about the 21st day of July, 1906. Second. The defendant admits that he took said bulls from the range, but denies that he took them Wrongfully or from the possession of the plaintiff, and denies that he wrongfully and unjustly detains said bulls, or that he ever wrongfully and unjustly detained same. nies that the said plaintiff did not consent to his having the bulls. Denies that the plaintiff has been damaged in the sum of $100 by reason of the taking and detention of said bulls by the defendant, or at all, by reason of any act in the premises of the defendant. Third. The defendant admits that he refuses to surrender said bulls to the plaintiff. nies that he hasn't any title thereto, or that he has not a claim and title to said bulls." De De sideration, unless it is the third paragraph, and possibly some portions of the second; but this infirmity does not extend to the denials embraced in the first paragraph. This defense, counsel for plaintiff contends, not only admits the ownership of the bulls in controversy, but expressly admits the taking of the bulls from the range, and the refusal to surrender them to the plaintiff, and hence, it is argued, does not tender an issue, and is an implied admission of the allegations of the GABBERT, J. Plaintiff in error commenc- complaint. It is claimed that a denial in iped an action in replevin against defend-sis verbis not only fails to raise an issue, but ant in error for the possession of two bulls, is an admission of the allegations of the and damages for their alleged wrongful de- pleadings to which it is directed. This proptention. For answer the defendant inter-osition cannot apply to the defense under conposed two defenses, consisting of (1) what was intended to put in issue the allegations of the complaint, and (2) what appears to have been regarded as an affirmative defense, to which the plaintiff filed a replication. Plaintiff then filed a motion for judgment on the pleadings, which was overruled, and later, having announced in open court that he elected to stand upon this motion, the cause, on motion of defendant, was dismissed at the cost of plaintiff. From this judgment the plaintiff has brought the case here for review on error. The complaint was an ordinary one in replevin, and alleged, in substance, that at the time of the commencement of the action plaintiff was the owner, and entitled to the immediate possession, of the animals in controversy (two Hereford bulls), branded in a The action appears to have been commenced about March 2, 1907. Plaintiff alleges that he was the owner and entitled to the possession of the animals in controversy at that time. The defendant denies that plaintiff was the owner or entitled to the possession of the animals at any time since on or about the 21st day of July, 1906, a date anterior to the commencement of the action. This denial certainly puts in issue the averments of ownership and right of possession. as alleged by the plaintiff. The action in replevin is primarily an action for possession. With this in issue, plaintiff was not entitled *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes to recover unless he established, by competent testimony, his right to possession when the action was commenced. For the purpose of showing that he did not then have that right, the defendant, under his denial, could have introduced evidence that the right of possession was at that time vested in him or in some third person. Such being the situation of the parties with respect to the introduction of testimony, from which the facts would be determined fixing their rights to the subject matter of controversy, it is clear that an issue on the right of possession was tendered by the answer. In other words, where the pleadings raise a material question of fact which must be determined from testimony before a judgment can be rendered, a motion for judgment on the pleadings must be denied. Cache La Poudre I. Co. v. Hawley, 43 Colo. 32, 95 Pac. 317. Whether or not other averments of the complaint were put in issue by the defense under consideration is immaterial. The gist of plaintiff's right to Our attention is directed to sections 4266, 4267, 4268, Mills' Ann. St., relating to bills of sale for stock sold, penalty for violation, and the duty of the purchaser to show bill of sale. We do not see how these sections have any application to the case at bar. Possibly they might have in connection with the facts set up in the second defense; but, be that as it may, it does not appear, so far as advised, that on the question of the right of plaintiff to a judgment on the pleadings, in so far as the first defense is involved, they have any application. The judgment of the district court is affirmed. Judgment affirmed. STEELE, C. J., and HILL, J., concur. (48 Colo. 285) GARNET DITCH & RESERVOIR CO. v. SAMPSON. (Supreme Court of Colorado. Feb. 7, 1910. On Petition for Rehearing, July 5, 1910.) Mills' Ann. St. § 2272, making the owners of reservoirs liable for all damages from leakage or overflow of the waters or by floods caused by breaking of the embankments was not impliedly repealed by Laws 1899, c. 126, entitled "An Act in relation to reservoirs," as the latter act expressly relates only to reservoirs of a certain capacity and dams having certain dimensions. maintain his action was put in issue, and he could not recover unless he at least proved his right of possession, even though other averments in his complaint were admitted by failure to deny, for the reason that a motion for judgment on the pleadings cannot be sustained unless under the admitted facts the moving party would be entitled to judgment, without regard to what the findings might be on the facts upon which issue is joined (Mills v. Hart, 24 Colo. 505, 52 Pac. 680, 65 Am. St. Rep. 241; Rice v. Bush, 16 Colo. 484, 27 Pac. [Ed. Note.-For other cases, see Waters and 720), or, as held by other authorities, judg-Water Courses, Dec. Dig. § 216.*] ment upon the pleadings cannot be rendered 2. WATERS AND WATER COURSES (§ 262*)-IRin favor of plaintiff unless upon the admissions of the answer no other judgment is possible than that prayed in the complaint (Roberts v. Colo. Springs & I. Ry. Co., 45 Colo. 188, 101 Pac. 59). Having reached the conclusion that, under the issues as made by the first defense, plaintiff could not recover except on the introduction of testimony establishing his right to the possession of the animals in controversy, it logically follows that, having refused to do this by electing to stand on his motion, the court very properly, on the motion of defendant, dismissed his action. RIGATION-INJURIES FROM STORAGE OF WA TER-EMBANKMENT"-"DAM." Mills' Ann. St. § 2272, makes the owners of reservoirs liable for all damages from leakage or overflow of the waters or by floods caused by breaking of the embankments. Laws 1899, c. 126, § 9, provides that none of its provisions shall relieve the owner of any such reservoir from the payment of damages caused by the breaking of the embankments thereof, but in the event of any such reservoirs overflowing, or the embankments, dams, or outlets breaking or washing out, the owners thereof shall be liable for all damages occasioned thereby." Held, that the owners of reservoirs are liable absolutely for all damages from leakage or overflow of the water, or by floods caused by the breaking of an embankment, and they are not relieved from such liability by the fact that they have omitted nothing that human skill and foresight could suggest in the construction and maintenance of the reservoir to render it absolutely safe, and their liability is the same, even if they have used a natural hillside as a part of the restraining wall and it washes out, as the words "embankment" and "dam" must be construed as including barriers. It is urged that the second defense is evasive and contradictory, and does not tender any material issue. Inasmuch as the first defense tendered a material issue, the sufficiency of the second defense in this respect is of no moment. Each defense stands by itself, and must be tested by what it contains. A judgment cannot be rendered on the plead[Ed. Note.-For other cases, see Waters and ings on motion of the plaintiff where the an- Water Courses, Cent. Dig. § 323; Dec. Dig. § swer contains a denial of the material allega- | 262.* tions of the complaint, even though the answer sets up a special defense separately stated, which admits the allegations of the complaint by failure to deny. Nudd v. Thompson, 34 Cal. 39; Amador Co. v. Butterfield, 51 Cal. 526. For other definitions, see Words and Phrases, vol. 3, pp. 2349, 2350; vol. 8, p. 7648; vol. 2, pp. 1811, 1812.] Campbell, J., dissenting. En Banc. Appeal from District Court. Delta County; Theron Stevens, Judge. Action by C. C. Sampson against the Gar- the question propounded by defendant has net Ditch & Reservoir Company. Judgment never been answered (by this court). for plaintiff, and defendant appeals. Affirmed. Gondy & Twitchell, J. H. Burkhardt, King & Stewart, and Millard Fairlamb, for appellant. Milton R. Welch, for appellee. Cass E. Herrington, Fred Herrington, R. H. Hart, F. N. Clark, J. G. McMurry, L. W. Allen, and Platt Rogers, amici curiæ. In Ditch Co. v. Zimmerman, 4 Colo. App. 78, 34 Pac. 1111, the court declined to determine whether the owners of reservoirs were or were not insurers against damage, because such issue was not made by the pleadings, but it did hold that the liability was sufficiently absolute to relieve the plaintiff from alleging and proving negligence. In Sylvester v. Jerome, 19 Colo. 128, 34 Pac. 760, the court held that the statute (section 2272, Mills' Ann. St. infra) was simply an affirmation of a common-law principle. The common-law principle referred to, as being affirmed by the words of the statute is that declared in the case of Rylands et al. v. Fletcher, 3 Law Reports, p. 330 (1868), as follows: "We think that the true rule of STEELE, C. J. The complaint charges that the defendant is a corporation of the state of Colorado, and was, upon the 11th day of April, 1903, and prior thereto, the owner in the possession of and operating a certain reservoir called the "Bonnie Reservoir," situated on Dry creek, in Montrose county; that water was stored therein by means of a dam across Dry creek; that the embankment law is, that the person who, for his own puror dam burst, and the impounded water es- poses, brings on his own land and collects caped with such force as to carry away and and keeps there anything likely to do misdestroy a number of cattle that were pas-chief if it escapes, must keep it at his own tured in the valley below. peril; and if he does not do so, is prima fa The defendant admits that it had impound- cie answerable for all the damage which is He ed a large quantity of water in its reservoir, the natural consequence of its escape. but denies that the embankment or dam can excuse himself by showing that the esburst, and states that the hillside or mesa cape was owing to the plaintiff's default; against which the dam abutted, broke "by or, perhaps, that the escape was the consereason of the waters of said reservoir find-quence of vis major, or the act of God." ing an underground passage through some But it is said that the American doctrine hole burrowed out by some animal." From is not as announced in the case of Rylands v. the second defense it appears: That the reservoir was constructed in strict accordance with the plans and specifications of competent and skilled engineers, including the state engineer, and that the plans and specifications of the engineers directed that the dam of the reservoir be abutted at each end of the hillside or mesa. That the defendant had omitted nothing that human skill and foresight suggested in the construction and maintenance of the reservoir to ren der it absolutely safe. Fletcher, supra, and is that one who artificially collects upon his own premises, a substance which from its nature is liable to escape and cause mischief to others, must use reasonable care to restrain it, and is answerable for any damage occasioned to others by a want of such care; and Thompson, in his work on Negligence, announces the foregoing as the American doctrine on the subject. We are of opinion that neither the common law nor the so-called American doctrine should control us in the determination of this case; but that the statutes fix the liability of reservoir owners and we shall base our judgment entirely upon a construction of our own statutes. Section 2272, Mill's Ann. St., is as follows: "The owners of the reservoirs shall be liable for all damages arising from leakage or overflow of the waters therefrom, or by floods caused by breaking of the embank A general demurrer to the answer was sustained. The first defense having put in issue the amount of the loss sustained by the plaintiff, thereafter the cause was tried by the court, and judgment rendered for the plaintiff in the sum of $495. From this judgment the defendant appealed to the Court of Appeals, assigning as error the sustaining of the demurrer and the rendering of judgments of such reservoirs." This section is ment. We assume that the defendant, its officers. and employés, were in no wise culpable and we shall answer the questions propounded by the defendant, "Is the owner of a reservoir an insurer against any loss occurring to persons or property by reason of the escape of water from such reservoir, or can such owner excuse himself by showing the absence of negligence?" as being the only ones presented for our consideration. The statute, relied upon as placing an absolute liability upon the owners of a reservoir, has several times been considered by this court and the Court of Appeals; but found in the session Laws of 1879 (Laws 1879, p. 107, § 40). The statute places an absolute liability upon the owners of reservoirs for all damages arising from leakage, or overflow of the water, or by floods caused by the breaking of the embankment. No exception is mentioned and unless an exception appears in the statute we must presume that none was intended, and it would be a gross abuse of the judicial power to construe away the words of the statute by holding the owners of reservoirs exempt from liability for damage, upon their proof of the exercise of reasonable care and caution. In 1899 the Legislature enacted "An act in utory provisions, and to leave the persons and property of our citizens without remedy in the event of injury, for in the very law which requires supervision by the state engineer, we find the following: "None of the provisions of this act shall be construed as relieving the owners of any such reservoir from the payment of such damages as may be caused by the breaking of the embankments thereof, but in the event of any such reservoir overflowing, or the embankments, dams, or outlets breaking or washing out, the owners thereof shall be liable for all damages occasioned thereby," evincing in positive and direct terms a legislative purpose to hold owners liable for all damages occasioned by the breaking of a reservoir. Thus, whether the owners of reservoirs have or have not complied with the law of 1899, and whether they were or were not guilty of negligence in the construction or maintenance or operation of their property, and whether the section of the law of 1879 was or was not repealed by the later law of 1899, the liability is the same. It is said that the case of the Denver City Irrigation & Water Co. v. Middaugh, 12 Colo. 434, 21 Pac. 565, 13 Am. St. Rep. 234, supports the Ꭺ relation to reservoirs" (Laws 1899, c. 126), | liability upon the compliance with the statand it is claimed by counsel that section 2272, being the section found in the chapter on irrigation, was impliedly repealed by the later statute, and the decisions of this court declaring that a subsequent statute revising the whole subject-matter of the former, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate as a repeal of the former, are cited in support of the contention. This is undoubtedly the rule of construction, and if it were applicable to this case, would control; but the statute of 1899 cannot be said to have been intended by the Legislature as a substitute for the law of 1879; by the very terms of the act itself, it only applies to reservoirs having certain capacity or dams having certain dimensions. By the act, dams of the dimensions mentioned are required to be under the supervision of the state engineer, and it becomes his duty to supervise the construction of reservoirs, and exercise a general supervision of them at all times, to the end that they may not overflow and that breakage or seepage may not occur. Whenever in his judgment, any of the structures become unsafe, it becomes his duty and the duty of the owners under his direction to draw off sufficient water or to other-contention of the appellants that they are exwise prevent, if possible, overflow or breakage. Knowing the imminent danger attendant upon the storage of water, and to avoid, as far as it was possible for human agency to avoid, damages to the lower proprietors, the Legislature provided the scheme of protection found in the law of 1899, and if the owners of reservoirs are to be absolved from liability for damages upon proof of the exercise of ordinary care in the construction, maintenance, and operation of their property, then a compliance with the terms of the statute should, ordinarily, relieve them from all responsibility; but the Legislature, with a prophetic vision, saw in the progress of the development of the state, the holding back of the waters of every stream in the mountains for the purpose of storage, to water the lowlands and to supply the power for manufacturing and other purposes, and that on the elevated portion of the plains there would be constructed reservoirs in great numbers for the storage of water out of season for irrigation purposes, and knowing that unless these reservoirs were constructed and maintained upon scientific principles, they would become a constant menace to the lives and property of citizens, and that each recurring season would witness appalling disasters beyond the possibility of pecuniary compensation, the Legislature appears to have been willing to permit the impounding of water, and to provide the means by which structures built for that purpose should be rendered as harmless as skill and science could make them; but it does not show an intention to relieve the owners from cused from the payment of damages upon proof of the exercise of ordinary care. careful reading of Justice Hayt's opinion in that case discloses that the question before the court was not whether the owners of the reservoir were or were not insurers against damages, but whether one whose land bad been taken under the eminent domain act for reservoir purposes, and having been awarded a sum of money for damages to the land not taken, can or cannot recover damages upon allegation of negligence or of unskillful construction of the reservoir. The court held that "in assessing damages for the lands taken for the construction of a canal or reservoir thereon, injuries to the residue of such lands arising from seepage and leakage from such canal and reservoir should be anticipated, and damages for the same should be included in the original assessment; and no subsequent recovery for such injuries will le allowed, unless such negligence or unskillfulness be shown." Our attention is also directed to several decisions of this court holding proprietors to the exercise of ordinary care only; in the construction and operation of ditches, and counsel contends that as the liability of ditch owners and reservoir owners is declared in similar language, although in different sections, no higher degree of care should be required of reservoir owners than is required of ditch owners. It is true that the ditch owners have been held to the exercise of ordinary care only, for the statute does not hold them to an absolute liability. There is very good reason for the legislative distinc tion. A ditch carrying water can, by the the one equally innocent of wrong, and who exercise of ordinary care, be rendered harm- had no agency in causing the damage? Testless. The carrying of water through ditches ed by the rule of natural right and equity, is not a dangerous or menacing vocation-the there could be but one answer to the inwater is not restrained and the pressure is quiry. This answer is formulated into the but slight-while in a reservoir, the water maxim that 'every one should so use his own is restrained and the pressure is very great, property as not to injure that of his neighso great that the exercise of the greatest bor.'" amount of care and skill may not prevent the water from effecting its escape. The statute imposing liability upon railroads for all damages by fire set out or caused by operating the road, is very similar to the statute we have under consideration, and this court has held that such a law is not in violation of the Constitution, and that the liability of the railroad company is absolute. The case, Union Pacific R. R. Co. v. De Busk, 12 Colo. 294, 20 Pac. 752, 3 L. R. A. 350, 13 Am. St. Rep. 221, is a very instructive one and the writer of the opinion reviews many authorities decisive of the question. Construing the same statute, the Supreme Court of Missouri, in the case of Mathews v. St. L. & S. F. Co., 121 Mo. 298, 24 S. W. 591, 25 L. R. A. 161, said: "If the state is powerless to protect its citizens from the ravages of fires set out by agencies created by itself, then it fails to meet one of the essentials of a good government. Certainly it fails in the protection of property. The argument of the defendant reduced to its last analysis is this: The state authorized the railroad companies to propel cars by steam. To generate steam, they are compelled to use fire, therefore they can lawfully use fire, and as As the underlying principle of the deci- they are pursuing a lawful business, they sions upholding the legislative act imposing are only liable for negligence in its operaabsolute liability upon railroads for damages tion; and when, in a given case, they can by fire apply with equal force to the stat- demonstrate they are guilty of no negligence, ute we have under consideration here, we shall quote at length from some of those decisions. It will be found that it is intimated, at least, that in granting permission to make use of so dangerous an agency as fire, when the utmost care and vigilance cannot prevent injury to innocent persons, if the users of such agency are held to the exercise of ordinary care only, such legislation would not only be unjust, but of doubtful validity. then they cannot be made liable. To this the citizen answers: 'I also own my land lawfully. I have the right to grow my crops, and erect buildings on it at any place I choose. I did not set in motion any dangerous machinery. You say you are guiltless of negligence. It results then that the state which owes me protection to my property from others, has chartered an agency, which, be it ever so careful and cautious and prudent, inevitably destroys my property, and yet denies me all redress. The state has no right to take or damage my property without just compensation.' But what the state cannot do directly, it attempts to do indirectly, through the charters granted to railroads, if defendant's contention be true. When it was demonstrated that although the railroads exercised every precaution in the construction of their engines, the choice of their operatives, and clearing their rights of way of all combustibles, still fire was emitted from their engines, and the citizen's property burned, notwithstanding his efforts to extinguish it, and notwithstanding he had in no way contributed to setting it out, it is perfectly competent for the state to require the company who set out the fire to pay his damages. He is as much entitled to the protection from fire set out by the engines, as he is against the killing of his stock by those engines." In the case of Campbell v. Mo. Pac. Ry. Co., 121 Mo. 340, 25 S. W. 936, 25 L. R. A. 175, 42 Am. St. Rep. 530, the court, in construing a statute of the state of Missouri, imposing a liability upon railroad companies for damages resulting from fire set out or caused by the operation of its road, had this to say: "It is unquestioned that the utmost diligence and care cannot prevent the escape of fire from locomotive engines. We have, then, this condition of things. The corporation is given the right, by the statute, to run its engines by steam power, necessitating the use of fire. Fire necessarily escapes, and is scattered along the route. The citizen owns property on the line of the road, which is exposed to fire from those engines, regardless of the care and vigilance he may exercise. Both parties are faultless, but, nevertheless, the property of the owner is consumed by fire from an engine. The property owner has the right to own This latter case was taken by writ of erthe property, and to claim protection under ror to the Supreme Court of the United the law, equal at least, to the right of States (St. Louis & S. F. R. Co. v. Mathews, the corporation to use fire on its engines. 165 U. S. 1, 17 Sup. Ct. 243, 41 L. Ed. 611), The loss must necessarily fall upon one or where it was affirmed. Mr. Justice Gray, in the other of these parties. Which one of delivering the opinion of the court, has this them shall suffer the loss, the one through to say: "The motives which have induced, whose agency the damage was caused, though and the reasons which justify, the legislain the lawful use of its own property, or tion now in question, may be summed up |