cloud by having advertised for sale the lands ! for such alleged and pretended irrigation district taxes, and that the defendant is now threatening to, on the 5th day of December, 1913, sell the lands for such pretended irrigation taxes pursuant to advertisement; that if the defendant is permitted to sell the lands under the tax sale as advertised, then and in that event, great and irreparable injury will result to this plaintiff in this, that a cloud will be further created and placed upon her title by reason of the sale and the issuance of a certificate therefor; that the irrigation district is not the owner of any irrigation system or water works constructed or existing under the laws of this state, and has no need or requirement for a general fund; that the irrigation district has no valid, outstanding and subsisting bonded indebtedness in any amount drawing interest, or at all; and that plaintiff has no plain, adequate or speedy remedy at law. A demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, nor sufficient facts to authorize the granting of the relief prayed for, was interposed and overruled. An answer was filed setting forth, among other things, the same objections to the jurisdiction of the court and the sufficiency of the complaint as were raised by the demurrer. A motion to strike, and a demurrer to the answer, were interposed by plaintiff and overruled, whereupon replication was filed. The cause was tried to the court without a jury. When plaintiff rested her case a motion for non-suit was made for the reason, among others, that the complaint states no cause of action; indeed, the proceeding was challenged promptly and at every opportunity upon that identical ground. Sections 3457 and 3459, Revised Statutes 1908, respectively, read as follows: of money on the assessed valuation of the property of said district shall be increased fifteen per cent. to cover delinquencies. For the purposes of said district it shall be the duty of the county commissioners of each county in which any irrigation district is located in whole or in part, at the time of making levy for county purposes, to make a levy, at the rates above specified, upon all real estate in said district within their respective counties. All taxes levied under this act are special taxes." The complaint affirmatively shows that the irrigation district is a duly organized and lawfully existing municipal corporation under the laws of this state, and also discloses the precise amount of the tax levied, respectively, for general expense and for bond interest. It was the unconditional duty of the board of county commissioners, under the law, to levy, as was done, the amount of taxes for both funds as certified by the We see board of directors of the district. no reason why taxes regularly, assessed and levied for the use and benefit of a duly organized and lawfully existing irrigation district are not of equal validity and dignity with, or why they should not be respected and enforced the same as other taxes. That The complaint fails to state a cause of action of equitable cognizance. It does not appear therefrom that plaintiff has no plain, adequate or speedy remedy at law. a multiplicity of suits would be avoided is no more than a mere inference to be drawn from the title of the cause, there being no averment whatever in the body of the complaint on this subject. That failure to grant the relief prayed would work irreparable injury to plaintiff is simply the viewpoint of the pleader and not otherwise deducible; no issuable fact or facts are alleged which show or indicate that such a result will or can follow if injunctive relief be denied. The only allegation against the validity of the tax levied for the general expense fund is that the district is not the owner of any "It shall be the duty of the board of directors (of an irrigation district), on or before September first of each year, to determine the amount of money required to meet the maintenance, irrigation system under the laws of this operating and current expenses for the ensuing year, and to certify to the county commissioners of the county in which the office of said district is located, said amount, together with such additional amount as may be necessary to meet any deficiency in the payment of said expenses theretofore incurred." "It shall be the duty of the county commissioners of the county in which is located the office of any irrigation district, immediately upon receipt of the returns of the total assess ment of said district, and upon the receipt of the certificate of the board of directors certifying the total amount of money required to be raised as herein provided, to fix the rate of levy necessary to provide said amount of money, and to fix the rate necessary to provide the amount of money required to pay the interest and principal of the bonds of said district as the same shall become due; also, to fix the rate necessary to provide the amount of money required for any other purposes as in this act provided, and which are to be raised by the levy of assessments upon the real property of said district; and to certify said respective rates to the county commissioners of each county embracing any portion of said district. The rate of levy necessary to raise the required amount state and has no need or requirement for a general fund. In the absence of other averments of fact from which these allegations necessarily follow they are mere conclusions. Equity intervenes only where issuable facts of equitable cognizance are stated. Certainly this complaint does nothing of the sort, especially in view of the plain provisions of the statute commanding the assessment, levy and collection of taxes for irrigation district purposes. [2] It has been so often held by this and other courts that equity will not entertain suits to enjoin the collection of taxes, except when brought under some well recognized head of equity jurisprudence, the wonder is that such actions are still brought, when no facts are alleged which bring them within the settled rule. Insurance Co. v. Bonner, 7 Colo. App. 97, 42 Pac. 681; same Wason v. case, 24 Colo. 220, 49 Pac. 366; Major, 10 Colo. App. 181, 50 Pac. 741; Hal lett v. Arapahoe County, 40 Colo. 308, 90 Pac. 678; Bent County v. Santa Fé Co., 52 Colo. 609, 125 Pac. 528; City of Highlands v. Johnson, 24 Colo. 371, 51 Pac. 1004; Woodward v. Ellsworth, 4 Colo. 580; Price et al. v. Kramer et al., 4 Colo. 546; Tallon v. Vindicator Consol. Gold Mining Co., 149 Pac. 108; State Railroad Tax Cases, 92 U. S. 575, 613, 23 L. Ed. 663; Dows v. City of Chicago, 11 Wall. 108, 20 L. Ed. 65; Singer Sewing Machine Co. v. Benedict, 229 U. S. 481, 33 Sup. Ct. 942, 57 L. Ed. 1288; Union Pac. R. Co. v. | Board of Com'rs, 217 Fed. 540, 133 C. C. A. 392; same case on rehearing, 222 Fed. 651, 138 C. C. A. 175; High on Injunctions, § 34 and notes. grieved, has a plain, adequate and speedy remedy at law, to which she should be remitted. Since it clearly appears that no cause of action at all is stated in the complaint, it would be a grotesque proceeding under such circumstances for the court to discuss or determine other important, vital and far-reaching questions presented and argued. In view of the fact that plaintiff has had abundant opportunity to amend her complaint and has persistently declined to do so, the judgment is reversed and the cause remanded to the trial court, with directions to enter an order of dismissal. Judgment reversed and cause remanded. HILL, J., not participating. (60 Colo. 417) UNION PAC. R. CO. v. GILL. (No. 8279.) (Supreme Court of Colorado. Nov. 1, 1915. Opinion Modified and Rehearing Denied Jan. 3, 1916.) GROUNDS Under the facts of this case as disclosed by the complaint, in view of the statutes requiring assessment and levy of taxes for irrigation districts, there is no issuable averment which shows or even tends to show that the tax assessed for general expense fund purposes is not a valid and existing claim against the property of plaintiff. An allegation of payment or tender of payment at least of that tax was necessary to maintain 1. CONTINUANCE 26 DILIthis proceeding. The complaint contains no Where the affidavits accompanying an apsuch showing. Hildreth v. City of Long-plication for a continuance showed knowledge mont, 47 Colo. 79, 107, 105 Pac. 107; Hallett v. U. S. Sec. & Bond. Co., 40 Colo. 281, 288, 90 Pac. 683; City of Denver v. Kennedy, 33 Colo. 80, 92, 80 Pac. 122, 467; City of Highlands v. Johnson, supra; County of Teller et. al. v. Acorn Gold Mining Co., 23 Colo. App. 407, 414, 130 Pac. 74; Walsh v. Sprankle, 21 Colo. App. 129, 121 Pac. 951. [3] To uphold the injunction issued upon this complaint would be an invitation to every taxpayer in the state to undertake to escape payment of any tax levied, by filing complaint containing only argumentative allegations and conclusions to the effect that the tax is void, that a cloud is created on title, or threatened, and that irreparable injury will result if collection be not enjoined, without a single fact averment as a basis for such conclusions. Equity requires complete, clear and distinct allegations of issuable facts to justify the injunction in this class of cases, and it must definitely appear by proper averments that great and irreparable injury will result, either because of a multiplicity of suits or otherwise, before equity will lend its extraordinary aid. Upon a full consideration of public interest, of judicial pronouncement in general upon the subject involved, and of our statute, section 5750, R. S. 1908, which affords a complete remedy in a proper case, we are of opinion that it is rarely possible, and then under most exceptional and unusual circumstances, that a cause of action to restrain the collection of taxes can be stated of which equity will or ought to take cognizance. In this case nothing is averred to negative the conclusion that plaintiff, if ag GENCE. that an insurance company whose papers defendant desired to have brought in under suband the subpoena was directed to its local agent, pœna duces tecum, was a foreign corporation, from whom defendant could have discovered the whereabouts of the papers which were outside the state, the affidavit failed to show such dilipapers were not produced by the local agent, gence that refusal of the continuance, when the was an abuse of discretion. [Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 74-93; Dec. Dig. 26.] 2. CONTINUANCE 25 - GROUNDS-MATERIALITY OF EVIDENCE. ant carrier in a personal injury case on affidavit Where a continuance was sought by defendshowing that defendant, if permitted, could produce an application for insurance made after the injury in which plaintiff stated he was in quire a continuance, for the evidence would bear good health, the affidavit was insufficient to reonly on plaintiff's credibility, and not on the fact of injury. 1066 HARMLESS [Ed. Note.-For other cases, see Continuance, Cent. Dig. § 73; Dec. Dig. 25.] 3. APPEAL AND ERROR ERROR-INSTRUCTIONS. In an action for injuries to a passenger in a collision, an instruction that after plaintiff proved the collision and that he was then a passenger, the burden was on the defendant to show the abstract, was not prejudicial, under the preits freedom from negligence, while erroneous in sumption of the carrier's negligence arising from injury to a passenger on a train, defendant having offered no proof on the question of negligence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. 1066.] 4. CARRIERS 318-INJURIES TO PASSENGERS NEGLIGENCE-EVIDENCE-SUFFICIENCY. In an action for injuries to a passenger, evidence of the trainmen that the train was running on the main track, that the motorman did not try to stop it, being busy at something else, and that it struck, head on, a freight train, in broad daylight, was sufficient to show negligence of the company. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1270, 1307-1314; Dec. Dig. Life Company, of Des Moines, Iowa,' the de318.] 5. APPEAL AND ERROR 1004 PERSONAL INJURIES-AMOUNT OF DAMAGES -QUESTION FOR JURY. In an action for injuries to a passenger on a railway train, where the evidence as to the extent of injuries to plaintiff's eye was voluminous, technical, conflicting, and unsatisfactory, the question was for the jury, whose finding will not be disturbed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. 1004.] Error to District Court, Weld County; Neil F. Graham, Judge. Action by W. H. Gill-against the Union Pacific Railroad Company, a corporation. From a judgment for plaintiff, defendant brings error. Affirmed. "The said 'papers, documents and writings of and concerning the application of W. H. Gill for reinstatement and insurance in the Bankers' fendant is informed and believes, contain evidence material to the defendant's defense in this cause, and that the defendant has used due diligence in endeavoring to procure the same." This contains no statement of fact which the plaintiff expected to prove. It is a mere conclusion that whatever the evidence may be, it is material. The application was supported by affidavits of counsel, and it is contended that the affidavit of a Mr. Southard shows that the papers and documents desired contained evidence material to the defense. The statement in this affidavit is as follows: Hughes & Dorsey, E. D. White, John Q. Dier, and Henry W. Toll, all of Denver, for plaintiff in error. Elbert C. Smith, of Gree-ny; that said application for reinstatement in ley, for defendant in error. notice. [1, 2] 1. The defendant company contends that the court erred in denying its application for a postponement of the trial. At the request of defendant, the court entered an order authorizing the issue of a subpoena duces tecum directed to J. T. Kendall, the general agent for Colorado, of the Bankers' Life Company of Des Moines, Iowa, a foreign insurance corporation, requiring said agent to bring with him and produce at the time of the trial, to be used as evidence, "any and all papers, documents, and writings of and concerning the application of W. H. Gill, plaintiff, for reinstatement and insurance in the Bankers' Life Company of Des Moines, Iowa." The subpoena was duly served on Kendall in the city of Denver, on December 10, 1913. Kendall at once wired his company the fact of the service of the subpoena. The company wired Kendall on December 12th as follows: "You can answer in court that you have no papers, that they were all sent here, and show them the company's wire. We hold all these matters in confidence unless compelled to disclose by taking our deposition. This statement is all that can be required of you." "That he is one of the attorneys for the defendant in the above-entitled cause; that on or about the 2d day of December, A. D. 1913, he was informed that plaintiff, W. H. Gill, had been insured in the Bankers' Life Company of Des Moines, Iowa; that said policy, for some reason unknown to your affiant, had lapsed, and that thereafter the said plaintiff made application for reinstatement in said insurance compasaid company was made after the alleged accident set forth in said plaintiff's complaint; that in said application for reinstatement said plaintiff, as your affiant is informed and believes, and so states the fact to be, in substance, stated that his physical condition was such that he could and should be reinstated in said company under the rules and regulations thereof, and that he had suffered no injury which would disqualify him, the said plaintiff, from being reinstated in said company; that thereafter and before final action had been taken by said insurance company upon said application for reinstatement, the attention of said W. H. Gill was called to the fact of the pendency of this action, but that said W. H. Gill, while alleging that said accident had occurred, stated in substance that the same was of little or no consequence; that thereafter, as your affiant is informed and believes the said W. H. Gill was reinstated for insurance in said the Bankers' Life Company of Des Moines, Iowa." The subpoena duces tecum was directed to Kendall, the general agent of the company in Denver. It called for any and all papers, documents, and writings concerning Gill's application for reinstatement as a policy holder. The The affidavit alleges that the insurance company is a foreign corporation with its principal offices at Des Moines, Iowa. showing is that such application and the papers connected with it were at Des Moines, and not with Kendall at Denver. If the defendant did not know this at the time, it could have easily ascertained the fact from Kendall, and therefore the issuance of the subpoena to Kendall was useless and ineffective. If the defendant had proceeded immediately to take the deposition of the officers at Des Moines, there might have been a better exhibition of diligence. The affidavit states that Southard is informed and believes that the application stated that the physical condition of Gill was such that he could and should be reinstated under the rules and regulations of the company, and It was alleged in the affidavit for a contin- that he had suffered no injury which would uance that: disqualify him from being reinstated. For other cases seg same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes This "In this case the burden of proof is upon the plaintiff to establish by a preponderance of the evidence the allegations of the complaint; that is to say, it is incumbent upon the plaintiff to establish the fact that he was a passenger for pay upon the motor car of the defendant and was injured by reason of the motor car in which he was a passenger, colliding with a freight train of the defendant company; and when the plaintiff has shown these facts by a preponderance of the evidence, that is sufficient to establish the presumption of negligence on the part of the defendant. Then the burden of proof shifts and it is incumbent upon the defendant to establish by a preponderance of the evidence the fact that it was without negligence." The last sentence of this instruction in the abstract is not an accurate statement of the law, but it does not constitute prejudicial error under the facts of this case, whatever may be said of it as applied to different circumstances. The defendant introduced no testimony upon the question of negligence, and so far as the testimony is concerned, the negligence of the defendant appears without dispute. Still further, the negligence stands without attempted excuse or explanation. The authorities cited by plaintiff in error are conclusive against its contention of prejudice here. Among these are the following: "In the case of a passenger the fact of an accident carries with it a presumption of negligence on the part of the carrier, a presumption which in the absence of some explanation or proof to the contrary, is sufficient to sustain a verdict against him." Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361. "It is sometimes said that the mere happening of an accident in this class of cases raises a presumption of negligence, but this is hardly accurate. Negligence is never presumed. If it were, it would be the duty of the court, in the absence of exculpatory evidence by the defendant, to direct a verdict for the plaintiff, whereas in these cases the question is for the jury. The accurate statement of the law is not that negli gence is presumed, but that the circumstances amount to evidence from which it may be inferred by the jury." East End Oil Co. v. Penn. Torpedo Co., 190 Pa. 350, 42 Atl. 707. motorman in charge of the car at the time of the injury, and who were still in the employ of the company at the time of the trial. The conductor testifies as follows: "I work for the Union Pacific Railroad Company as a conductor, and was so employed on February 11, 1913. On this day I was conductor in charge of a motor car running between Brighton and Boulder, and we left Brighton that morning at 8:40. Gill was on the motor car that morning and paid a fare from Brighton sion, west of Valmont, with a freight train. to Boulder. * We had a head on colliConductor Mitchell was in charge of the freight train, and he was working for the same company I was. I don't know whether or not Mitchell ever run a passenger train as I had never seen him when he was so employed. ** • Q. Well, when this collision occurred, that was on the main track, was it? A. Yes, sir. We were on the main line, and the next station was Boulder Junction, and the one following that was Boulder, which was about four miles or near that. The last time I saw Mr. Gill before the accident he was in the second seat in the ladies part of the coach, or car rather, on the left-hand side. He was sitting alone, but I don't recall just where we were, but it was some where around Liggett, or between Liggett and Valmont. Liggett is about five miles from Valmont." The motorman testified as follows: "I live in Boulder, and I am a motorman for the Union Pacific Railroad Company, and was so employed February 11, 1913, running the motor car from Brighton to Boulder. There was a collision that morning just west of Valmont, and I was in the engine room of the motor car ning on our own time, and the collision occurred at the time, running the engine. We were runabout three hundred feet west of the switch on the Union Pacific right of way. I did not make any effort to stop before the accident, as I was We were running on our own time, and just busy doing something else and did not see them. after the accident I noticed a locomotive in front of us. Conductor Mitchell had charge of that train, which was a Union Pacific train, and Mitchell was working for the Union Pacific. It was a freight train, and after the accident I saw Mr. Gill, whom I had seen before and knew by his name. I was not well acquainted with him, but remember seeing him in the motor car that morning after the accident." It would be difficult to conceive a clearer case of negligence than is thus disclosed by this undisputed testimony. Under this state of facts it is idle to discuss the instruction complained of as being in any sense prejudicial to the defendant. [5] The only question of merit in the case, and the only one concerning which there was any real dispute in the testimony, was as to the extent of an injury to plaintiff's eye, and the resulting effects. This testimony appears "The doctrine does not dispense with the re- to be voluminous, highly technical, given by quirement that the party who alleges negligence experts upon this question, and as is usual must prove the fact, but relates only to the mode in such cases, very conflicting and unsatisof proving it. The fact of the accident furuishes merely some evidence to go to the jury, factory. This was for the jury, and we see which requires the defendant to go forward no reason why the finding of that body should with his proof.'" Stewart v. Van Deventer Carpet Co., 138 N. C. 60, 50 S. E. 562. The freight train was on the same track with the motor car, and there is not sufficient in the record even to disclose clearly whether the train was standing still, moving forward, or backward. [4] The only testimony upon the question be disturbed. There are 61 other assignments of error, which we have considered, but which we do not deem of sufficient importance to justify discussion in this case. The judgment is affirmed. GABBERT, C. J., and GARRIGUES, J., Colo.) (60 Colo. 412) COLORADO GOLD DREDGING CO. v. STEARNS-ROGER MFG. CO. COLORADO GOLD DREDGING CO. et al. (Supreme Court of Colorado. Jan. 3, 1916.) 1. MINES AND MINERALS 112 PLACER LIENS "DEPOSIT YIELDING METALS OR MINERALS." Rev. St. 1908, § 4028, declaring that the provisions of the lien act shall apply to all persons who shall do work or shall furnish materials or mining, milling or other machinery or other fixtures for working, preservation, prospecting, or development of any mine, lode, or mining claim or deposit yielding metals or minerals, applies to placer mines, such mines being included under the words, "deposit yielding metals or minerals." [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 233-235; Dec. Dig. 112.] 2. MINES AND MINERALS 112 "FIXTURE.' LIENS A dredge boat, used in placer mining by means of artificial pond whereby gravel in front of the boat is drawn up, washed, and deposited in the rear, which was of large substantial size, is a fixture within Rev. St. 1908, § 4028, giving liens to all persons who shall do work or furnish materials, or mining or milling or other machinery or fixtures for the working, preservation, or developing of any mine or deposit yielding metals or minerals, and so one furnishing machinery for the dredgeboat is entitled to a lien. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 233-235; Dec. Dig. êm 112. For other definitions, see Words and Phrases, First and Second Series, Fixture.] 3. MINES AND MINERALS 112-LIENS-MA CHINERY. Where the owner of a mining claim required those who entered under option to purchase to construct a dredgeboat to mine the placer, persons furnishing machinery for the dredgeboat are under Rev. St. 1908, § 4028, providing for liens upon mining property in favor of those furnishing machinery, etc., entitled to a lien on the claim itself. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 233-235; Dec. Dig. 112.] 4. MINES AND MINERALS ORITY-NOTICE. 116-LIENS-PRI One who acquired a mining claim with notice after liens were attached, takes it subject to the lien. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 238; Dec. Dig. 116.] 5. MINES AND MINERALS HANCEMENT IN VALUE. Where the owner of a placer claim required one entering under option to purchase, to construct a dredge, it will, in a proceeding to affix a lien on the land on account of sums due on 8. APPEAL AND ERROR 170 Error, Cent. Dig. 88 1035-1052, 1099, 1100; C. C. Holbrook, Judge. Action by the Stearns-Roger Manufacturing M. Irwin, of Colorado Springs (A. H. Waller, to reverse a judgment whereby the defend- 117-LIENS-EN-presented so as to entitle it to consideration machinery for the dredge, be presumed that the mine was enhanced to the value of the dredge. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 239; Dec. Dig. 117.] 6. MINES AND MINERALS 112 APPLICATION. Where a placer mine formed a single, undivided property intended to be worked by one dredgeboat, it is proper, the dredge not having been paid for, to extend the lien over the whole mine although it consisted of several claims. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 233-235; Dec. Dig. 112.] "The provisions of this act shall apply to all terials or mining, milling or other machinery or persons who shall do work or shall furnish maother fixtures, as provided in section 1 of this act, for the working, preservation, prospecting or development of any mine, lode or mining claim or deposit yielding metals or minerals of any kind or for the working, preservation or de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |