usual, the courts cannot interfere. Although the statute expressly fixes the penalty for its violation as fine and imprisonment, or both, we know of no good reason why the provisions forbidding the use of unregistered docked horses may not be regarded as an additional punishment imposed upon those who violate the law. Counsel say the deprivation of the use of the unregistered docked horse was not imposed as an additional punishment upon the person who docked the horse, because the horse may have been docked in a state where the docking of horses' tails is not a crime, and brought here; and because if a burglar should break into a stable and steal a horse and then dock his tail, the owner, if he subsequently recovered his property, could not use his horse. The statute forbids the importation of docked horses. Whether that provision interferes with the right of Congress to regulate commerce between the states is not involved in this case for the reason that the horse 334 in question was docked in Colorado. What our ruling would be in a case where a thief had docked a stolen horse and the rightful owner had undertaken to use him after he was docked, we are not prepared to say; but the horse in question was not a stolen horse, nor was it docked by a thief. With full knowledge of the law the owner of the horse docked him and sold him to Bland, and Bland, with full knowledge of the law, bought a docked horse. Their property has not been taken without due process of law. The law has not destroyed their property; they have destroyed their own property. Bland sold the horse and within two weeks bought him back; in the interim the horse's tail was docked. There was no necessity for docking the horse's tail, and the parties concluded to defy the law, and they must take the consequences.

We regard the law as just, wise and humane, and withal a lawful exercise of the power confided to the legislature, because it conserves the public morals and because it punishes the cruel and senseless treatment by man of his best and most constant friend.

The judgment is affirmed.

Acts Which may be Declared Criminal is the subject of a monographic note to Booth v. People, 78 Am. St. Rep. 235-274.

BESSEMER IRRIGATION DITCH COMPANY T.

WOOLLEY.

[32 Colo. 437, 76 Pac. 1053.]

EQUITY JURISDICTION—Injunction-Quieting Title.-If one of the objects of an action is to enjoin interference with the use of water rights, this is sufficient to give a court of equity jurisdiction, and having obtained jurisdiction of the subject matter for that pur pose, it may decide all the questions involved and grant appropriate relief, even to entering a decree quieting plaintiff's title without proof of his possession. (p. 92.)

WATER RIGHTS, Although They may be Appurtenant to Land, are the subject of property, and may be transferred, either with or without the land. (p. 93.)

WATER RIGHTS-When Pass by Deed.-Whether a water right passes as an appurtenance to the land, granted by deed silent as to such water right, depends upon the intention of the grantor, to be ascertained from the circumstances, and whether such right is or is not incident and necessary to the beneficial enjoyment of the land, and in the absence of such showing the water right does not pass as an appurtenance to the land. (p. 94.)

PLEADING.-A Defective Special Denial does not control a good general denial, and a good general denial of each and every allegation of a complaint, not expressly admitted, puts in issue all other allegations, although some of them are impliedly admitted by the defective special denial. (p. 95.)

WATER RIGHTS-Conveyance of by Deed-After-acquired Property. If the habendum clause in a trust deed does not purport to grant any after-acquired property, but merely confirms in the grantee any estate or title in and to the lands specifically granted which the grantor might thereafter acquire, it cannot operate to convey a water right afterward acquired and applied to the land conveyed. (p. 96.)

APPELLATE PRACTICE-Assignment of Error-Waiver of Objection to Decree.-One party cannot, on appeal, object to a decree in the lower court in favor of the other party on the ground that the latter did not by his answer set up any cross-complaint nor ask for any affirmative relief, when such objection was not made in the court below, and no cross-errors are assigned on appeal. (p. 97.)

Devine & Dubbs, for the appellant.

Teller & Dorsey and M. J. Bartley, for the appellees.

439 CAMPBELL, J. Action to enjoin interference with irrigating ditches and water rights.

The subject matter of the controversy is the Cape Horn Ranch Ditch and the Wheel Ranch Ditch and their accompanying water rights. The general purpose of the action is twofold: to enjoin the defendant from using the same, and to quiet

plaintiffs' title, and the complaint contains every allegation that would be necessary in a bill to quiet title to these properties and to enjoin wrongful use of them. The 440 answer alleges possession and ownership in defendant and asks to have the action dismissed. The court quieted title in plaintiffs as to the Cape Horn Ranch Ditch and enjoined defendant from making use of it, and as to the Wheel Ranch Ditch quieted title in defendant and restrained plaintiffs from interfering therewith. Charles Cecil Campion is the common source of title. The plaintiffs claim as purchasers at a trustee's sale of lands to which, they say, the ditches and water rights are appurtenant, which sale was conducted under a foreclosure of a trust deed executed by Campion to the trustee to secure the indebtedness of the grantor. The defendant claims title to the ditches and water rights, separate from the lands, under a subsequent grant direct from Campion specifically describing them.

The first point made by the appellant (defendant below) is that plaintiffs did not show possession, and as this action was brought under section 255 of the code, which requires that the plaintiff be in actual possession when the suit begins, the action fails. The plaintiffs (appellees here) say that their allegation of possession in the complaint was not denied. In this they are mistaken, for the answer specifically alleges ownership and possession in the defendant, and this, in effect, is a denial of possession in plaintiffs, hence they were put upon their proof. If this were merely an action to quiet title, and nothing else, it might be, under our former decisions, that this lack of proof would be fatal to plaintiffs' case, but we cannot say that this was even the principal object of the suit. One, if not its principal, object was to enjoin defendant from interfering with plaintiffs' use of water rights. The court certainly had cognizance of this as an independent ground of equitable jurisdiction, and having obtained jurisdiction of the subject matter for this purpose, was at liberty to decide all of 441 the questions in the case and grant appropriate relief. In Gutheil Park Inv. Co. v. Town of Montclair, 32 Colo. 420, 76 Pac. 1050, decided at this term, the same question was raised and passed upon and the reasons given for our conclusion, which need not be repeated here.

The trust deed and the trustee's deed contained a specific description of certain lands which the plaintiffs claim were the lands for the irrigation of which the water rights in question were originally appropriated and for which they had been con

tinuously used and to which they became appurtenant, and were directly necessary and essential to the full enjoyment thereof, and without which the lands in question would be of little, or no, value. Neither in the granting clause, nor elsewhere in these instruments, were these water rights or ditches, as such, described, or in any way referred to. Plaintiffs (appellees here), however, maintain, and this is the main question in the case, that since the deeds were silent respecting the water rights and no reservation thereof was made by the grantor, the ditches and water rights necessarily passed as appurte nances to the lands which were specifically described in the instruments of conveyance. In support of this contention, they cite a number of cases from courts of the so-called arid states, where the doctrine of appropriation prevails, as well as from the states where the common-law rule of riparian ownership obtains, to the effect that a grant of a principal thing, in the absence of an express exception or reservation in the instrument of conveyance, perforce carries with it as an appurtenance whatever is in existence at the time and is directly necessary and essential to the principal thing granted.

Learned coun

It is unnecessary to dwell upon these cases. sel for plaintiffs are surely not unaware that this court has repeatedly announced a different 442 rule for this jurisdiction, although in their briefs counsel ignore them, and apparently suppose that their comment upon the authorities of our sister states and their elaborate discussion of the proposition will lead this court to overturn its own previous decisions. The rule was first clearly announced by Mr. Justice Goddard in Arnett v. Linhart, 21 Colo. 188, 40 Pac. 355, in this language: "Although a water right may be appurtenant to the land, it is the subject of property and may be transferred either with or without the land: Strickler v. City of Colorado Springs, 16 Colo. 61, 25 Am. St. Rep. 245, 26 Pac. 313. Being, therefore, a distinct subject of grant, and transferable either with or without the land, whether a deed to land conveys the water right depends upon the intention of the grantor, which is to be gathered from the express terms of the deed; or, when it is silent as to the water right, from the presumption that arises. from the circumstances, and whether such right is or is not incident to and necessary to the beneficial enjoyment of the land."

This case was followed in Gelwicks v. Todd, 24 Colo. 494, 52 Pac. 788; Travelers' Ins. Co. v. Childs, 25 Colo. 360, 54 Pac.

1020; Daum v. Conley, 27 Colo. 56, 59 Pac. 753; King v. Ackroyd, 28 Colo. 488, 66 Pac. 906; and is now stare decisis with us. We are satisfied with it and again approve it. in the opinion in Gelwicks v. Todd, 24 Colo. 494, 52 Pac. 788, was cited Frank v. Hicks, 4 Wyo. 502, 35 Pac. 475, 1025. Appellees place their main reliance apparently upon this case, which they say declares that, in the absence of a direct exception or reservation in a deed of lands in irrigating which water rights have been used, the water rights necessarily pass as an appurtenance. Our reference to the case was only to the point that a water right might, in certain circumstances, pass as an appurtenance. Whether or not it does pass in this state depends upon the intention of the grantor, which is to be ascertained 443 in accordance with the rule laid down in the Arnett case. In this connection it is not inappropriate to remark that in the Wyoming case the "entire property" of the mortgagor, both that then owned and all of the same kind thereafter acquired, was included in the mortgage, and the decision of the court might well have been put upon the ground that the proof showed that the mortgagor intended to pass the water rights with the land.

There was no evidence whatever on the trial below as to the intention of plaintiffs' grantors with reference to the water rights. The deed was entirely silent as to them. The intention of the grantor, then, must be gathered, if at all, from the circumstances of the case, and whether the water rights are, or are not, incident and necessary to the beneficial enjoyment of the land. In the absence of such showing we are constrained to say, upon the record now before us, that under the established doctrine in this state the water rights did not pass to plaintiffs as appurtenances to the lands which were the subject of the grant.

But appellees' counsel say that, though there was no evidence offered at the trial as to the intention of their grantor, there were in the complaint allegations of intention to convey the water rights, and that they were used upon, and were directly necessary and essential to the complete enjoyment of, the lands, and that these allegations are not denied by the answer, and therefore it was not necessary to introduce evidence to prove what was not denied. Some of the denials are a species of negative pregnant, others conjunctive denials of conjunctive allegations. In these respects the answer was faulty. A careful examination of its contents discloses, however, that, in addi