users were represented by stock. For several years in the early history of the ditch, Mr. Ryman used a considerable quantity of water, varying from 200 to 400 inches in a year. During that time there was a large flow in the creek, and there was enough water for everyone who wanted it. The plaintiff testified that from the time when he purchased his land from the grantee of Ryman, himself and his tenants did the work of repairing and keeping up the ditch, and used 500 inches of water, which was practically all the water running in the ditch; but Mr. Cushman testified that in 1895 and 1896 Mrs. Bonney used a considerable quantity of the water, and Mrs. Bonney testified that afterwards, on account of the plaintiff's objections, she was compelled to use a diminished amount, and in 1898 she used none at all, because the plaintiff would not let her have it; and that she sold her water rights because she was not able to fight for them. She also testified that from time to time she did a considerable amount of work in the way of maintaining and repairing the ditch. Latterly, for reasons which are not clearly disclosed, the flow of water in the ditch was largely diminished, amounting only to about 500 inches.

The plaintiff claims all this water, but he has not made the theory upon which he prefers his claim very comprehensible. In his complaint he alleges an abandonment of the ditch by the defendants and their grantors, and supports the charge by an averment that they entirely failed to maintain, repair and operate the ditch. In his argument he grounds his claim upon a prior appropriation of the water by himself and his grantors.

It is quite clear that the plaintiff derived no title to the water either through abandonment or by appropriation. There was no evidence that the defendants, or those under whom they claim, ever

abandoned any right they had in the water. Failure by them to make repairs or contribute toward repairs upon the ditch, even if such were the fact, would not alone prove abandonment; nor would the fact that for some years Mrs. Bonney did not use her share of the water, and during one year used none at all, even if the nonuser was voluntary with her, point in the direction of abandonment. An abandonment occurs when the party in possession deserts the property without an intention to reclaim it, and such intention is not shown by mere nonuser or failure to maintain.-Putnam v. Curtis, 7 Colo. App. 437.

But in view of the evidence that the defendants' immediate grantor, Mrs. Bonney, did contribute toward the maintenance of the ditch, and the uncontradicted evidence that her failure to use her share of the water for some years, and during one year to use any, was due to the conduct of the plaintiff himself, the charge of abandonment is not calculated to add weight to the plaintiff's contention. And a claim of prior appropriation is equally baseless. The water was appropriated by The Cushman Ditch Company; and it was from that company, and from no other source, that the plaintiff derived his title. The origin of the defendants' title was the same. The rights of the parties, plaintiff and defendant, in the water are evidenced by the stock of the company held by them respectively. The interest of the plaintiff is nine twenty-eighths of whatever water may be flowing in the ditch, and no more, the remainder being owned by the defendants and others; and while the taking by the plaintiff from the ditch of water which did not belong to him was an appropriation in the sense in which any wrongful taking of property is an appropriation, it was not an appropriation within the meaning of the law regulating water rights on the public domain.

The assignments of error go to the admission and rejection of testimony. We shall not discuss them, because the nature of the testimony admitted, and of that rejected, was such that the rulings could not in any manner affect the decision of the questions presented, or work injury to the plaintiff. Let the judgment be affirmed.

[No. 2826.]

Affirmed.

TALCOTT V. THE DELTA COUNTY LAND AND CATTLE COMPANY.

Appellate Practice-Reversal-New Trial.

Where a cause is reversed by the appellate court and remanded without any specific directions to the trial court, the appellee or defendant in error is entitled as a matter of right to a new trial, and it is reversible error to deny him a new trial.

Appeal from the District Court of Delta County.

Messrs. WOLCOTT, VAILE & WATERMAN and Mr. H. H. DUNHAM, for appellant. Mr. WILLIAM W. FIELD, of counsel.

Mr. D. V. BURNS, for appellee.

MAXWELL, J.

This being the second appeal in this cause, reference may he had to the case of The Delta County Land & Cattle Company v. Talcott, 17 Colo. App. 316, for a statement of the facts out of which this litigation arose. Upon this appeal the following statement presents the material points. The last paragraph of the opinion of this court in The Delta County Land & Cattle Company v. Talcott, supra, is as follows:

"Upon the evidence as it is presented in this record, I think the deed of Lamb to The Delta Land & Cattle Company vested a good title in the latter,

and that the court erred in canceling the deed of release. Let the judgment be reversed.

"Reversed."

The judgment entered by this court was:

"It is therefore considered and adjudged by the court that the judgment aforesaid of said district court be, and the same is hereby, reversed, annulled, and altogether held for naught; and that this cause be remanded to said district court for further proceedings, according to law."

The mandate was:

"Now, therefore, this cause is remanded to you, the said district court in and for the county of Delta, and state aforesaid, that such further proceedings may be had in said cause as shall conform to the judgment of this court entered as aforesaid, as also with the opinion filed therein."

Upon the cause coming on for trial in the district court of Delta county, the following motion was made:

"Comes now the defendant, The Delta County Land & Cattle Company, by D. V. Burns, its attorney, and moves the court for an order pursuant to the mandate of the court of appeals, sustaining its motion of nonsuit; also for an order canceling and holding for naught a certain entry made herein, on to wit, the 20th day of March, 1899, ordering expunged from the records of Delta county that certain release deed executed by Edward L. Kellogg, trustee, on the 20th day of April, 1892, and recorded on said day in book 4, at page 285, of the records of said Delta county, and for the judgment of dismissal and for costs," which motion was sustained.

At the time the foregoing motion was decided, the plaintiff "demanded the right of a new trial of this cause, offered to produce testimony additional

to the testimony which was produced on behalf of the plaintiff at the former trial thereof," and moved for a continuance to the next term of court, which motion for a continuance was supported by an affidavit of counsel for plaintiff. The application for a continuance and the motion to retry and introduce further evidence, were denied. Judgment was thereupon rendered in favor of the defendant, pursuant to its motion above set forth. Plaintiff appeals, and assigns for error the above recited rulings of the court.

The effect of a judgment of reversal without direction, is squarely presented for determination. Johnson v. Bailey, 17 Colo. 59, was before the supreme court for review the second time. On the first trial, Bailey v. Johnson, 9 Colo. 365, "The judgment was reversed and remanded." We quote from the opinion of the court in Johnson v. Bailey, 17 Colo. 59, as pertinent to the case before us, the following extracts:

"It is now contended that certain language used by the court in its former opinion of reversal concerning the title and possession of the property at the time of the levy, is res judicata of the facts of the case, and therefore that plaintiffs' claim of title must be sustained in any event as a matter of law."

"It is evident, however, that the opinion was not intended to be res judicata as to such matter in any future trial, else the case would not have been remanded generally, as for a trial de novo, but would have been remanded with directions to try the cause for the sole purpose of ascertaining the value of the property and the damages for its detention, and, thereupon, to render judgment in favor of plaintiffs. But such course was not directed by the judgment of reversal; nor was it the course actually pursued."