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also that the interest of the Garcias was two work necessary to keep the ditch, headgate, feet of water out of the ditch, whose capac- and dam in repair, and that the plaintiff is ity was found to be 91/10 feet or cubic feet; entitled to the use of one-half of the water but this two feet appears to refer more to in the ditch at all times, when water shall the amount the Garcias needed at the time, be flowing therein. It was adjudged that than to refer to their actual interest in the the plaintiff is the owner of one-half of the water right. Through the many years that water right adjudged to said ditch, by the preceded the year 1902, each owner seemed decree of 1883, and the title of the plaintiff to get all the water he wanted, without par- to that amount of water was quieted in him, ticular reference to the exact rights of each, and it was further adjudged that the plainand each helped in the work on the ditch as tiff has a right to the use of the ditch for required, and each seemed to recognize the the purpose of conveying his said water to rights and duties of the other, whatever they his said land, as long as he shall perform were, springing from the arrangement be one-half of the work necessary to keep the tween Stewart and the Garcias in 1882. ditch, dam, and headgate in repair. The

No difficulty or dispute arose, until about findings and judgment of the court below, the summer of 1902. At that time Stewart as to the interest which the appellee Austin claimed that Austin, through his representa- has in the water right and as to the amount tive, refused or failed to work on the ditch of work necessary for him to perform to when the work ought to have been done. keep the ditch, headgate, and dam in repair, On this account Stewart claimed that Austin are not supported by any legal evidence. had no right to use the ditch, and interfered In determining the interest of each, there with Austin's use of it. Stewart does not can be no question of abandonment, as appelappear to dispute that Austin had an interest lee contends, for nothing appears to have in the water right, nor that Austin had a been abandoned. The acreage to which the right to use the ditch, if the work had been water has been applied by Austin and his done; for Stewart testified that, if he had grantors had been gradually increased to 400 helped to work on the ditch, Austin would acres or over, and by the Stewarts to 600 have the right to use it. Austin brought

acres or over. Austin's 400 acres, now irrithis action in the nature of a suit to quiet gated, bears the same ratio to Stewart's 600 title, alleging that he is the owner of an un- acres, now irrigated, as the Garcias' original divided two-thirds of the ditch and water two quarter sections, susceptible of irrigaright; that he derives title thereto by pur- tion, bore to Stewart's three quarter sections, chase from the Garcias, and by prescription susceptible of irrigation. As has been seen, and by use thereof, without objection; that the interests of the Garcias in the water the defendants have set up a claim of right rights evidently rest upon original appropriato two-thirds interest in the ditch and water tions made by them, and their right to the right, and have interfered with and prevented the use, by plaintiff, of his two-thirds in- use of the ditch rests upon contract with terest, and that the defendants have only a

Stewart. To ascertain the respective interests one-third interest in the ditch and water of Stewart and Austin in the whole approright, and pray that the defendants set forth priation, and of the rights of Austin in the their claims, and that upon the final hear- ditch, which the court found was owned by ing it be adjudged that plaintiff is the own. Stewart, subject to Austin's right, all that is er of two-thirds of the ditch and water necessary to do is to determine the intention rights, and that the defendants be enjoined and acts of Stewart and the Garcias, when from interfering with plaintiff's use thereof. the arrangements between them were made. The defendants answered, substantially de- In determining this, the statements made by nying the allegations of the complaint, and those interested at the time, to which each alleging that the only interest that the Gar- assented, and the acts done by them at the cias had in the ditch or water right was a time, which were accepted by each, furnish mere temporary use, under annual rental the best evidence, after the lapse of so many agreements with Stewart, whereby they years, of what their intentions were, and so would have the right to the carriage of water far as this record is concerned these statethrough the ditch for the irrigation of about ments and acts are best shown by the testi50 acres of land, they making payments an- mony and statements of claim in the adjudinually to Stewart for the use thereof; that cation proceeding which led up to the decree the whole of the ditch and all of the water of 1883. Woods v. Sargent, 43 Colo, 268 at right belonged to Stewart; that the Garcias 272, 95. Pac. 932. had no transferable interest therein, and that The court below found that Stewart and whatever right they, or any one claiming Austin were each the owner of one-half of through them, may have had is terminated. the water right. If there was sufficient legal

The court below found, among other evidence to support this finding, under the things, that the ownership of the ditch was well-known rule of this court, the finding in the defendants, subject to the right of would not be disturbed. The appellants claim plaintiff to use it for the conveyance of wa- there is no evidence to support it and the ter, upon complying with certain terms and appellee, while attempting to point out evi.

to bring the mind to a settled conclusion that gate his land, and upon these claims and he is right. The appellee argues that Stew- testimony, and with reference to the same, art stated at the adjudication that the ca- the priority decree was entered by the pacity of the ditch was 864 inches, and that court, and each claimant concurred in claimat the same time Stewart said he claimed ing that with this priority it was proposed to 400 inches, and as 400 inches is nearly one irrigate five quarter sections of land, or half of 864 that fact, taken in connection which Stewart owned three and the Garcias with the testimony mentioned above, of an two, all of which appears to be substantially intermittent use, not apparently adverse, of the same in condition. From this it follows from one-half to two-thirds of the water in that upon this record, by their acts, aside the ditch, sustains the finding. The trouble from their intentions, the appropriators of here is that 400 is not one-half of 864, and water through this ditch fixed the relative besides, in the same adjudication, the Garcias interest of each in the appropriation at each claimed only 155 inches, or a total of three-fifths for Stewart and two-fifths for 310 inches, out of the 864 inches, and for a the Garcias. long time they and their successors used a The district court found and adjudged less proportion out of the ditch. If the that Austin should do half the work necesclaim of Stewart is to bind him, then the sary to keep the ditch, dam, and head gate claim of the Garcias must bind them and in repair. It did this, no doubt, because it their successors. The number of inches claim- found that Austin owned one-half of the ed by Stewart and the Garcias aggregates water right. The only evidence in regard to 710. If the claims of each, as expressed in this was that Stewart told the Garcias they inches, should now fix the respective inter- might use the ditch, if they would help keep ests of each, then for all practical purposes it up. Nothing was said as to how much four-sevenths would be the interest of Stew work they should do. In the absence of any art and three-sevenths that of the Garcias. other evidence, it would be presumed that This, however, would not sustain the find- each was to do an amount of work in proporing of the court.

tion to his interest in the water right to be The expression, in inches, of the claims of conveyed through the ditch. the several owners is indefinite as to what As the finding and judgment of the court was really intended. In fact, the use of the relative to the interest of each in the water term "inches” creates confusion. The w'hole right has failed, the finding and judgment volume of the appropriation, or the full ca of the amount of work to be done must fall pacity of the ditch, was computed, at the with the finding upon which it was based, time, to be 864 inches, whatever that may and the finding and judgment with regard mean. The aggregate of the claims of the to the work should be that Austin perform owners, as expressed in inches, in their state- two-fifths thereof. This also will conform to ments of claim was 710 inches. They certain section 4051, Rev. St., if that section is aply did not intend to abandon the other 154 plicable to this case. The court adjudged inches. That they did not so intend is shown that Stewart should pay all the costs. Ausby the fact that the court, by priority decree, tin did not maintain the allegations of his awarded them a volume that would flow in complaint in their entirety; neither did a ditch that was, at the time, computed to

Stewart those of the answer. The parties be of a capacity of 864 inches, so that the are equal in this regard. They were both

interested in having the matter definitely declaim of Stewart to 400 inches and of the two Garcias to 310 inches cannot be fairly that each should pay half the costs in the

termined. For these reasons it is fair to say taken as the expression of their understand

district court. ing of the division of the whole appropriation among them. It appears, without con- is expressed that this litigation be ended, the

The judgment is reversed, and, as a desire tradiction, that it was the intention of Stewart and the Garcias, at that time, to use the district court to set aside the decree and

cause is remanded, with directions, to the appropriation to irrigate five quarter sec- modify it, so as to conform with the views tions of land. In their several statements, herein expressed, and as so modified to enter and in the testimony before the referee, they it as of its former date as the final judgment were particularly careful in bringing out the in this cause. The motion for rehearing is facts that Stewart owned three quarter sec

denied. tions and the Garcias two quarter sections of land; that all this land was susceptible of with directions. Motion for rehearing de

Judgment reversed and cause remanded, irrigation; that Stewart claimed so much

nied. of the water as was sufficient to irrigate his land, and each of the Garcias claimed so CAMPBELL, C. J., and GARRIGUES, J., much of the water as was sufficient to irri- concur.

(50 Colo. 597)

| in the court, at which time the court chargCASSERLEIGH . MALONE. ed the plaintiff with having obtained money (Supreme Court of Colorado. May 1, 1911.) from the said receiver and converting it to 1. JUDGES ($ 36*)-WRONGFUL ACTS-LIABIL- his own use; that plaintiff demanded to be ITY.

heard, but the said defendant refused to The correctness of a trial judge's action bear him, and did then and there command in a matter in which he had jurisdiction cannot be questioned in an independent action against that plaintiff and his said receiver, Latta, him as an individual, being determinable only pay at once to said Lipscomb the sum of on proper proceedings for review.

$100 and carry the same to him at a hos[Ed. Note.-For other cases, see Judges, Dec. pital, a distance of perhaps one mile from Dig. $ 36.*]

said court, and make the delivery within one 2. JUDGES ($ 36*)-PERSONAL LIABILITY. Judges of district courts are not liable for

hour. Following this the defendant said: official acts at the suit of private parties, re- "I will have no quibbling about this matter. gardless of motives.

Thomas Lipscomb is in the hospital, on [Ed. Note.-For other cases, see Judges, Cent. what may be his deathbed; you pay to him Dig. $$ 165, 173, 178, 179; Dec. Dig. $ 36.*]

$100 within an hour, or I shall do something Error to District Court, City and County of without delay.” It was then alleged that Denver; Harry C. Riddle, Judge.

upon account of fear of his personal liberty Action by J. H. Casserleigh against Booth at the order of the court they complied M. Malone. Judgment for defendant, and therewith. plaintiff brings error. Affirmed.

Plaintiff further alleges that on the same Duncan McPhail, for plaintiff in error. date the said defendant, Malone, while preWilliam H. Malone and John F. Shafroth, tending to act as judge, made the further for defendant in error.

statement to the plaintiff: "Casserleigh, you

and some lawyer obtained $125 through an HILL, J. The plaintiff in error was the order issued by this court a few days ago, plaintiff in the court below. Eliminating by representing to the court that it was to many immaterial and surplusage parts, the be paid to Thomas W. Lipscomb as attorsubstance of the complaint is that plaintiff ney's fees. What did you do with that monhad previously obtained a judgment in said ey?"--that plaintiff, in answer to the decourt for upwards of $39,000 and costs; that fendant, stated, “I paid my debts with that said judgment was declared to be a lien up-money; but I never obtained it under the on certa in property; that the defendant in pretense that I would pay it to Thomas this action was one of the duly elected, Lipscomb, as attorney's fees; and, further, qualified, and acting judges of said district I did not owe Lipscomb then, and am not court; that, upon the motion and application now indebted to him in any amount whatof this plaintiff in said former suit, this de- ever." fendant as such judge did appoint Robert H. Plaintiff further alleges that the said orLatta as receiver in said cause, to take pos- der or command was made by the defendant session of and preserve the property of the without any other notice or any service of defendants therein, etc.; that the said Latta process, and without any opportunity to be duly qualified and entered upon the perform- heard or to make any defense, and after reance of his duties as such receiver; that fusing the plaintiff an opportunity to be there came into his hands as such $600 of heard, and without having obtained juristhe property of said defendants; that dur- diction of the subject-matter of the alleged ing all of this time one Thomas W. Lips- or pretended claim of Lipscomb, or of eicomb was a practicing attorney; that plain-ther this plaintiff or said Latta, or of the tiff had employed him as such on one or fund in the hands of said receiver on whom two occasions to act for him in such capaci- the said order was pretended to have been ty, but had made full settlement of their made; that the said defendant subsequently, accounts, and had paid him in full for said for the purpose of giving a false color to the matters, was never indebted to him thereaft-jurisdiction of his acts, did cause to be er, and that he at no time pleaded or made spread upon the records in said case an orany claim against the plaintiff, nor in said der commanding the said receiver, Latta, to court, nor before said Latta, receiver, etc.; pay from out of the funds then in Latta's that subsequently, without any claim being possession as receiver $100 to Thomas W. filed in this court by Lipscomb or any one Lipscomb, and charge the same to Casserelse, and without notice or process, and with leigh, the plaintiff ; that said act was without authority over plaintiff or his said re-out notice to plaintiff and without jurisdicceiver, Latta, or the subject-matter, or with- tion, for the reasons set forth; that said in any matter pending before him for hear- Latta gave the $100 to the plaintiff, Cassering, the said defendant, Malone, sent a bail- leigh, which he was compelled to pay Lipsiff to plaintiff, requesting that he come to comb for reasons aforesaid, which $100 court; that in obedience to said request he Casserleigh was entitled to have applied in appeared in court; that on his appearance satisfaction of his judgment and to his damthere he found said receiver, Latta, present I age in the sum of $100.

A motion to strike the complaint from the jas pleading those facts, will avail the plainfiles and for judgment on the pleadings was tiff nothing. It is well settled in this jurissustained. The plaintiff has brought the diction that judges of district courts are not cause here for review upon error. The mo- liable in damages for official acts at the tion was based upon the complaint and upon suits of private parties, and their motives the records and files in the other suit refer- cannot in this way be the subject of judicial red to. Eliminating the question of whether inquiry. Hughes v. Cummings et al., 7 Colo. it was proper to consider the records and 141, 2 Pac. 289; Hughes y. McCoy, 11 Colo. files in other cases in the same court in con- 591, 19 Pac. 674; Terry V. Wright et al., nection with this motion, we think the court | 9 Colo. App. 11, 47 Pac. 905. right in its rulings thereon.

The judgment will be affirmed. [1] The complaint shows that the defend Affirmed. ant, Malone, was, at the time mentioned, a duly elected, qualified, and acting judge of CAMPBELL, C. J., and GABBERT, J., said court; that the receiver in the original concur. action was appointed by him, upon the application of this plaintiff, and the court's right

(50 Colo. 363) to do so is in no way challenged. It is further shown that the receiver had

HURLBURT et al. v. KDPHART. qualified, and was in the performance of his (Supreme Court of Colorado. April 3, 1911.) duties as such, at the time the order was 1. PRINCIPAL AND SURETY (8 59*)-CONSTRUCmade, which was against the receiver, com

TION OF CONTRACT-STRICTISSIMI JURIS. manding him to make this payment to the to contracts of suretyship, is not a rule of con

The rule of strictissimi juris, as applied attorney. He was an officer of the court struction, but is rather a rule of application of which appointed him, and under its jurisdic- a contract after its meaning has been ascertaintion; the court had the right, by suitable ed; the contract being subject to the same tests

for ascertaining its meaning as those applicable orders, to arrange and provide for other to other written instruments. matters pertaining to the duties of the re [Ed. Note.--For other cases, see Principal and ceiver, the employés to be retained by him, Surety, Cent. Dig. $ 103; Dec. Dig. § 59.*] including those of counsel, and to provide 2. PRINCIPAL AND SURETY (8 70*)-STATE DEfor the compensation of all such. At the

POSITS IN BANK-BONDS-CONSTRUCTION. time this order was made, the receiver was a state treasurer, reciting that the treasurer

A bond executed by a bank with sureties to in court. It is not stated in the complaint would deposit certain moneys in the bank, and that he made any objections to the court's that the bank should keep, etc., all "said sums proceeding in this matter, nor in his com- so deposited or to be deposited as aforesaid," pliance therewith. It is not stated the kind secured deposits made by the treasurer prior to

its execution. of notice that was served upon the plaintiff ;

(Ed. Note.-For other cases, see Principal and whatever it may have been it answered its Surety, Cent. Dig. $ 120; Dec. Dig. $ 70.*] purpose, and he was likewise in court at 3. PRINCIPAL AND SURETY ($ 37*)---DEPOSITSthe time the order was made, although it did SECURITY FOR REPAYMENT-CONSIDERATION. not run against him. Besides, from state

A bond given by a bank to a state treasur

er, to secure repayment of sums deposited or to ments made by the court, it appears that be deposited, did not provide when the funds this order was made because the plaintiff were to be deposited in the future, nor the had failed to do what the court said he amount thereof. It was agreed between the agreed to when he secured a former order redeposit certificates amounting to $15,000. then

treasurer and the bank that the former should of the court, under which the court claims in the bank, and that, in case any part of such he had received certain moneys from the amount should be withdrawn, the treasurer, as receiver.

soon as the state's funds permitted, would deIn any event, the complaint shows that the that left on deposit, would amount to $15,000.

posit additional money in the bank which, with defendant in error was not only pretending No part of the original sum was withdrawn prito act as a judge of the district court in a or to the failure of the bank, nor had any rematter which he claimed to have jurisdic- Held, that the obligation of the bond was not

quest or claim been made for other deposits. tion, but it shows that he was acting as nugatory for failure of consideration, in that no the judge of the court in a case where he money was deposited after the execution of the had jurisdiction over both the party who bond. was commanded to act and the subject-mat- Surety, Cent. Dig. $ 70; Dec. Dig. & 37.*1

[Ed. Note.-For other cases, see Principal and ter to be affected, to wit, of the receiver and the money in his hands. Whether the

Appeal from District Court, Montrose judge acted correctly or not is not here for County; Sprigg Shackleford, Judge. review, and could not be in this action;

Action by George W. Kephart against that can only be determined when properly George R. Hurlburt and others. Judgment brought here for review, and not by an in- for plaintiff, and defendants appeal. AIdependent action against the judge as an

firmed. individual.

Story & Story, for appellants. Charles J. [2] The allegations that he acted malicious- Hughes, Jr., and Bell, Catlin & Blake (P. ly and corruptly in the premises, if sufficient | W. Mothersill, of counsel), for appellee. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

HILL, J. This action was brought by the hart, whereby, in consideration that this appellee, a former State Treasurer, to recov- money was allowed to remain in this bänk or er judgment against the appellants and oth- to be so redeposited in the name of Kepers as sureties on a bond alleged to have hart, the bank would cause to be executed been given to secure deposits of state funds and delivered to the Treasurer a good and made by Kephart as State Treasurer, in the sufficient bond to secure its safe-keeping, reBank of Montrose. A demurrer was sustain- turn, etc.; that under this agreement a bond ed to the original complaint; the appellee de- was prepared by the Treasurer and delivered clined to amend; judgment was entered to Mr. McClure, who took the same to Montagainst him, which was reversed by our rose, together with the old certificates of deCourt of Appeals. Kephart v. Buddecke, 20 posit (which had been indorsed to Kephart), Colo. App. 546, 80 Pac. 501. That court held with instructions that upon the execution of that the sureties on the bond were liable for the new bond to have it returned, together the safe-keeping and payment of the money with new certificates, made in the name of deposited prior to the execution of the bond, Kephart, for the amount of the old ones; as well as afterwards, and that the promise that in compliance with this understanding in the bond of the Treasurer to make fu- Mr. McClure returned to Montrose, arriving ture deposits in the bank was a sufficient there upon Saturday, the 16th, at which time consideration to the bank and its sureties to he instructed the cashier to have executed make them liable for all money already on new certificates in the name of Kephart and deposit with the bank and to be deposited in to date them back as of date January 12th, the future. After the reversal of the judg- the date Mr. Kephart was inducted into office ment, the appellants filed an answer in (which was done), evidently for the purpose which, 'first, they deniel certain allegations of having interest commence thereon as of of the complaint, and for a further defense that date. they pleaded a failure of consideration. To The bond was not executed or at least not this defense a replication was filed, denying dated, until Monday, the 18th; all were then its allegations. The replication also set returned to Denver together. The certififorth facts attempting to establish several cates were accepted by Kephart in lieu of considerations for the execution of the bond. the old ones, and the bond was accepted as A demurrer to the replication of the further security for these deposits. All of this mondefense was overruled, Trial was to the

ey remained on deposit thereafter. Septemcourt, which resulted in separate judgments ber 28, 1897, the bank became insolvent, closagainst each of the appellants for their pro- ed its doors, refused to pay depositors, and portionate share of the amount of the loss, immediately made a general assignment for caused by the failure of the bank, based up the benefit of its creditors, and passed into on the number of signers to the bond. From the hands of an assignee, and forever failed this judgment, this appeal was prosecuted by and refused to pay the amount of said desome of the defendants. At the trial it was shown that one signer which was paid by the assignee, being the

posit and interest, except a small portion of the bond had gone through bankruptcy Treasurer's proportional share made out of proceedings; while others had made satis

its assets. factory arrangements for their proportionate shares of the loss. The court rendered

The bond reads as follows: "Know all men separate judgments against the defendants

by these presents, that we, Bank of Montcontesting this claim, limiting them to the rose, as principals, and J. E. McClure, F. H. proportionate amounts that would have been Reinhold, Fred G. Farner, N. G. Clark, R. C. owing by each had all paid their respective Diehl, J. M. Cunningham, J. W. Owens, A. shares, and we do not understand that any E. Buddecke, James A. Fenlon, W. T. Ryman serious contention is made concerning the and George R. Hurlburt, as sureties, are held form or amount of the judgment.

and firmly bound unto Geo. W. Kephart, Eliminating the outside picket line con

Treasurer of the state of Colorado, in the tentions, the material facts as disclosed by just and full sum of thirty thousand /00 the record are: That Mr. Kephart was the dollars, for the payment of which well and State Treasurer during the years 1897 and truly to be made, we hereby bind ourselves, 1898; that when he was inducted into office our heirs, executors and administrators, joint(January 12, 1897) Mr. Mulnix, his predeces- ly and severally, firmly and by these pressor, tendered to him, as part of the state ents. Sealed with our seals and dated the funds, certificates of deposit in this bank 18th day of January, A. D. 1897. The conto the amount of $15,000; that a Mr. Mc- dition of this obligation is such that: WhereClure, who was solicitous of having this mon- as, there is no depository provided by the ey retained upon deposit in this bank, was state for the use of the Treasurer, who is in Denver for that purpose; that he (Mc- nevertheless absolutely responsible for the Clure) had absolute control of the bank's pol- safe-keeping of its funds; and whereas, it icy and conduct, it being (as testified by its has been heretofore customary and expedicashier) a one man's bank; that some time be- ent to deposit the monies of the state in the tween the 12th and 16th of January an name of the Treasurer in divers banks and

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