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not, in the nature of things, identify certain specific water as belonging to himself, while the same is running in the natural channel. Being entitled only to a certain quantity of the water, less than the whole, it is only after a proper diversion of such quantity into his own separate ditch or lateral that the prior appropriator can be said to have title, in kind, to the specific water thus diverted. Wheeler v. Northern Colo. Ir. Co., 10 Colo. 587, 588. So long as the prior appropriator is able to secure the full amount of water to which he is entitled, he will not be heard to complain that some other person or persons located higher up the stream are diverting its


3. Keeping this principle in view, it follows that if plaintiff had, by "priority of appropriation," actually acquired "the better right" to the use of the water of the natural stream than either or all of the several defendants, he was entitled to have such priority protected against their acts, whether joint or several, and for that purpose was entitled, if necessary, to join them all as defendants in one action. Plaintiff did not claim a prior right to the use of all the water in the natural stream, and the amount diverted by any single defendant might not interfere with plaintiff's use. Hence, he might not be able to maintain an action against any one of the defendants separately for diverting the water. So plaintiff might not be able to show that any two or more of the defendants acted jointly in diverting the water; nevertheless, he might be able to show that the result of their several diversions in the aggregate was to deprive him of its use altogether. The joint result of their several acts would, under such circumstances, justify their joinder as defendants.

To illustrate: Let us suppose that the natural flow of water in the West Fork of Elk Creek is only 200 inches, and that plaintiff, as the prior appropriator, is entitled to 100 inches thereof. Mansfield, owning lands on said stream above plaintiff, diverts 100 inches of the water; Saint next below Mansfield, but still above plaintiff, diverts another 100 inches; thus it results that plaintiff is wholly deprived of

the use of the water, though he is the actual prior appropriator thereof. To obtain redress, plaintiff commences his action by injunction against Mansfield. The action is resisted; Mansfield shows that he leaves water enough in the natural stream for plaintiff; and, thus, plaintiff is defeated, unless he assumes the burden of proving that Mansfield's appropriation is junior to Saint's—a matter in which plaintiff has no interest. The same result follows if Saint be sued separately; and thus the party actually having the better right is prevented from maintaining it. To prevent a failure of justice in cases of this kind the prior appropriator cannot properly be required to assume any such risks or burdens. But he may bring and maintain an action jointly against all parties, junior in right to himself, whenever the result of their acts, either joint or several, deprives him of his better right to the use of the water, or substantially interferes therewith. He may thus secure protection to his own priority, and leave the several junior appropriators to settle their relative priorities among themselves.

Upon plaintiff's theory we have no hesitation in saying that there was no misjoinder of parties defendant. The theory of the Saint brothers that they were the owners of the ditch, and therefore entitled to control the same to the exclusion of plaintiff, must be regarded as involving a question of fact. The evidence upon such question was conflicting and the finding of the trial court thereon cannot properly be disturbed on this appeal.

4. Whether plaintiff had or had not acquired a right of way for the irrigation ditch across the lands of the Saint brothers was a question of fact to be determined by the trial court upon the evidence. It is idle to say that the court could not determine whether such right of way did or did not exist, for the reason that this was not a proceeding under the act of eminent domain. The court did not undertake to grant a right of way, as by a decree or rule in condemnation proceedings; the finding of the court was to the effect, that plaintiff was in the possession and enjoyment of

such right of way as an existing right antecedent to the commencement of this action.

It appears that the ditch was originally constructed through the unsurveyed public domain of the United States. It was constructed before any of the parties to this litigation owned any of the ranches now claimed by them respectively. The Saint brothers claimed the ditch by virtue of a purchase of the possessory title of the former occupants. This claim was controverted by plaintiff; and the issue being decided by the trial court, upon conflicting evidence, in favor of plaintiff, its decision will not be disturbed.

5. Certain rulings of the court occurring at the commencement and during the progress of the trial, are assigned for


The court called a jury to try such specific questions of fact as might be submitted to them, reserving to itself the power to make its own findings upon consideration of the evidence and the verdict of the jury. This was correct practice, the case being one of equitable cognizance and triable by the court either with or without the aid of a jury under the statute. Code, section 173; 1 Thompson on Trials, sec. 884; Abbott v. Monti, 3 Colo. 561; Hall v. Linn, 8 Colo. 267.

6. The defendants, the Saint brothers, demanded a separate trial, which was refused. A separate trial for the several defendants in a civil action is certainly not a matter of right; and it was not error for the court to refuse the demand.

7. It was not error for the court to refuse defendant's request to have the jury view the premises and ditch in dispute. The granting or refusing of such request was a matter resting in the sound discretion of the trial court. Code, sec. 188.

8. The action of the court in propounding to the jury certain questions, as requested by plaintiff, is assigned for error. It would seem that the court extended great indulgence to the parties in the matter of submitting questions to the jury. The record does not affirmatively show that the parties were allowed to ask as many questions as they pleased, but it does

show that twenty-five questions on behalf of plaintiff, and twenty more on behalf of defendants, were duly submitted to the jury. Without discussing these questions in detail, we feel constrained to suggest the impropriety of submitting so many questions to the jury in an action of this kind. The right to require certain specific questions of fact to be passed upon by the jury is a matter for the court. Code, sec. 199. Counsel cannot insist upon the privilege ad libitum. The number and character of the questions should be controlled within reasonable limits, or the jury may be confused, and the court embarrassed, rather than aided, by the practice.

9. The calling of the jury was a matter of discretion with the court; their verdict or answers were only advisory; and as the court by its own specific findings determined every material matter in issue, neither the questions to nor answers by the jury furnish sufficient ground for a reversal of the findings and judgment of the court. Considering the nature of the action, and that only certain specific questions of fact were required to be answered by the jury, subject to the power of the court to accept or reject the answers in whole or in part, it was not error for the court to refuse to give instructions to the jury. The requirements of the Code, sec. 187, in reference to instructions are applicable to causes or issues triable by jury as a matter of right. The case of Welch v. Watts, 9 Ind. 115, cited by appellants' counsel, is not a case of this character. But see Danielson v. Gude, 11 Colo. 96, and authorities there cited.

The judgment of the district court might have been affirmed, but for the fact that the court erred in determining the amount of plaintiff's prior appropriation through the irrigating ditch in controversy. By his amended statement the plaintiff claimed the prior right to the use of one hundred inches of water from the Dry or West Fork of Elk Creek to be conveyed through said irrigating ditch. The jury made no findings as to the amount of this claim; the court, however, allowed the full amount of the plaintiff's claim; but from the evidence in which there is little or no conflict, it is

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manifest that the plaintiff never actually applied to beneficial use more than sixty inches of water prior to the defendants' appropriation. The judgment of the district court will, therefore, be reversed, with directions to that court to enter judgment awarding plaintiff a priority of appropriation as against the defendants for sixty inches of water from said West Fork of Elk Creek through said irrigating ditch. Reversed with directions.


COMMON LAW DEDICATION, WHEN IMPLIED.-Where a road runs through
private lands its dedication as a public highway may be implied:
1. When it is satisfactorily proved that it was the owner's intention to
set apart the land occupied as a road to the use of the public as a
highway, and that there has been an acceptance by the public of
the land for such use;

2. The evidence of intent must consist of such acts or declarations by
the owner as clearly and unequivocally indicate his purpose to make
the dedication, or such conduct on his part as equitably estops him
from denying such intention;

3. The acts and declarations of the owner connected with the matter of the alleged dedication may be given in evidence in his favor;

4. The line of the road must be certain and definite; a general privilege or license by the owner to cross his lands, without reference to any special route, will not suffice;

5. User of the road by the public for a considerable length of time without objection by the owner of the land may increase the weight of the evidence, if any there be, arising from acts or declarations of the owner indicating his intent to dedicate; but mere user, without such acts or declarations, unless for a period of time corresponding to the statutory limitation of real actions, cannot be held sufficient to vest the easement in the public, as by prescription.

Error to District Court of Lake County.

INJUNCTION against obstructing public highway. This was an action brought by the public authorities of Lake county,

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