the latter was also incurred by him "while acting in a fiduciary character." Whether we consider, therefore, the legal or the equitable aspect of the case, the debt sued for comes also within the provisions of the same section, and was not affected by the discharge. Treadwell v. Holloway, 46 Cal. 548; Herrlich v. McDonald, 80 Cal. 478, 22 Pac. 299; In re McEachran, 82 Cal. 223, 224, 23 Pac. 46; Dyer v. Bradley, 89 Cal. 563, 26 Pac. 1103; Siegel v. His Creditors, 95 Cal. 413, 30 Pac. 559; Carit v. Williams, 74 Cal. 185, 186, 15 Pac. 751. In the case last cited the debt was in the form of a judgment, and it was contended, as in this case, that the court could not look beyond the judgment to determine the character of the original debt; but the contrary was held. The liability of the defendants was not affected by the insolvency proceedings, and it was, therefore, unnecessary for the court to find with reference to them.

We advise that the judgment and order appealed from be affirmed.

We concur: GRAY, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(April 10, 1903.)

In Banc. On rehearing.

PER CURIAM. Rehearing denied.

(138 Cal. 481)

PEOPLE v. MCFARLANE. (Cr. 963.) (Supreme Court of California. March 10, 1903.)

STRIKING OUT TESTIMONY.

1. A motion to strike out the entire testimony of a witness, based on the ground that he had testified that he had "no recollection of any of the facts," was properly denied where the record showed that he did testify to certain facts from his own recollection.

In Banc. On rehearing.

For former opinion, see 71 Pac. 568.

PER CURIAM. A rehearing is denied, but in denying such rehearing the court places the denial, so far as the ruling of the trial court upon the motion to strike out the testimony of the witness Pennycook is concerned, solely upon the ground that the record shows that said witness did testify to certain facts from his own recollection, and the motion to strike out, being addressed to all of the testimony, was properly denied.

(31 Colo. 117)

HECHT v. WRIGHT. (Supreme Court of Colorado. Jan. 12, 1903.) CONTRACTS-SALE OF MILK-ADULTERATION -SUBJECT OF LAW.

1. Act April 17, 1893, § 69 (Laws 1893, p. 394, c. 133), declares it to be unlawful to sell watered or adulterated milk. Plaintiff con

tracted to sell milk, and failed to recover therefor because the milk was watered. Held, that an objection that his contract was impaired by such statute, in that defendant had an opportunity to examine the milk, and accepted it. was unfounded, but the judgment for defendant was based on the rule of law that a person may not found his cause of action on his own violation of a prohibitive statute.

2. The act of April 17, 1893, entitled "An act to preserve the public health, to create local boards of health, to define the duties and powers of such boards and to make certain acts misdemeanors, and provide for the punishment thereof, and to repeal all acts in conflict herewith" (Laws 1893, p. 376, c. 133), contains but one subject, and hence is not obnoxious to Const. art. 5, § 21.

Appeal from District Court, Arapahoe County.

Action by Charles Hecht against Mary Wright. From a judgment in favor of defendant, plaintiff appeals. Appeal dismissed. W. Henry Smith and O. A. Erdman, for appellant. Gondy & Twitchell, for appellee.

STEELE, J. The appellant began suit in the district court of Arapahoe county to recover the sum of $354.90 for milk delivered to the defendant in April and May, 1901, under a written contract in part as follows: "Broomfield, Colo., Feb. 1, 1901. This agreement, entered into between Mrs. Mary Wright, party of the first part, and Chas. Hecht, party of the second part. The party of the first part agrees to buy all of the party of the second part's milk for one year at the following prices: * The milk to be delivered at factory at Broomfield every morning." The defendant answered that the milk delivered to her under this contract had been adulterated by the plaintiff by the addition of large quantities of water, and she filed a cross-complaint for damages on account of such adulteration. Judgment was rendered in favor of the defendant for the sum of $200, and the plaintiff appeals to this court.

*

A motion is now made to dismiss the appeal for the reason that the amount involved is not large enough to give this court jurisdiction. It is contended by the appellant that we have jurisdiction, because his rights in the litigation are to some extent controlled by an act of the Legislature approved April 17, 1893, entitled "An act to preserve the public health, to create local boards of health, to define the duties and powers of such boards and to make certain acts misdemeanors, and provide for the punishment thereof, and to repeal all acts in conflict herewith" (Laws 1893, p. 376, c. 133), section 69 of which is in part as follows: "It shall be unlawful for any person, either by himself or agent, to sell or expose for sale within the state of Colorado any unwholesome, watered or adulterated or impure milk" (Id. p. 394, c. 133). He questions the constitutionality of this act upon the grounds that it impairs the obligation of contracts within the meaning of the federal and state con

stitutions, and that more than one subject is embraced within the act. The statute was passed long before the contract was made. The contract was not for the sale of milk and water, but the appellant secretly and fraudulently mixed water with the milk that he delivered. The appellant's contention is that, the contract not being for the sale of pure milk, there being no warranty of quality, the defendant having had an opportunity to examine the milk as it was delivered, and having accepted it, he would have been entitled, if there were no such statute, to recover from the appellee the price named in the contract; but that because of the statute, under the rule of law that a person may not found his cause of action upon his own violation of a prohibitive statute, he was prevented from recovering even for the milk contained in the solution delivered. If this be true, it is not such an impairment of the obligation of contracts as is prohibited by the Constitution of the United States or of this state. The so-called "impairment of obligation" arises rather from the rule of law above stated, which is universally recognized and enforced, than from the statute complained of. It was held in Clare v. People, 9 Colo. 122, 10 Pac. 799, that, "where the title of a statute contains but one general subject, the addition in the title of subdivisions under that subject does not render the act obnoxious to objection under section 21, art. 5, of the Constitution." And it has been held that it is a sufficient compliance with the constitutional requirement if the provisions of an act are germane to the general subject expressed in its title. Mining Co. v. Sharp, 23 Colo. 259, 47 Pac. 266, and eases there cited.

It follows that there is involved in this case no constitutional question that can be said to be fairly debatable, and the appeal is therefore dismissed. Dismissed.

(31 Colo. 62)

BUCKERS IRR., MILL. & IMP. CO. et al. v. FARMERS' INDEPENDENT DITCH CO.

(Supreme Court of Colorado. Nov. 3, 1902.) WATER RIGHTS-WATER SATURATING BED OF STREAM-ARTIFICIAL INCREASE-PERCOLAT

ING WATERS-INJUNCTION-EVIDENCE-PARTIES INTERROGATORIES SPECIFIC AND GENERAL FINDINGS CONFLICT - DECREEENTRY.

1. The fact that the court ordered a final decree to be entered in accordance with the verdict is not conclusive that the findings of the jury were adopted without modification.

2. Where it appears from the decree finally entered that the court found the issues joined in favor of plaintiff, it must be inferred that the court found those facts in favor of plaintiff which were responsive to the issues and essential to support the decree rendered, unless the contrary appears from the specific findings.

3. A specific finding that certain ditches intercepted all the waters flowing into a certain

& Bee Equity, vol. 19, Cent. Dig. §§ 815, 816. 72 P.-4

stream, and diverted all its surface and subterranean flow, did not conflict with the general finding that there had been no actual increase to the stream because of such ditches.

4. In an equity case, where the issues are submitted to a jury, their verdict is merely advisory, and the court may adopt the findings in whole or in part, and, in lieu of those not adopted, make findings of its own.

5. Water saturating the sand and gravel constituting the bed of the channels and sources of streams is as much a part of such streams as the surface flow.

6. Where the only water secured by means of defendant's ditches is derived from the natural flow of a stream to which plaintiff has a prior right, it must clearly appear that the water thus obtained is an actual and not an artificial increase.

7. Only the actual increase resulting from the addition of water to a natural stream, which would not. otherwise pass down either its surface or subterranean channel, can be diverted as against those entitled to its natural flow.

8. Waters passing through the sand and gravel constituting the bed of a stream, and the lands so nearly adjacent that the only and natural outlet would be through such channel, are not percolating waters, but are a part of the waters of the stream.

9. Where defendants made no claim to certain water, but alleged that it was claimed by other parties, they cannot complain of a decree establishing the right thereto in plaintiff as against themselves.

10. A ditch owned by third parties discharged its water into the river above the headgate of defendant's main ditch, and such water was turned into defendant's ditch under an agreement with such third parties to pay defendant for its carriage. Defendant paid its superintendent for distributing this water, and, when not called for by such third parties, it went in with the general supply flowing in defendant's ditch, and was distributed impartially and pro rata among its stockholders. Held that, as defendant was deriving a direct benefit by the use of such water, it could not complain of a decree preventing it from diverting it as against the prior rights of plaintiff.

11. Mills' Ann. St. § 2399, providing that the court, having properly acquired jurisdiction of a proceeding to adjudicate water rights, shall thereafter retain exclusive jurisdiction for that purpose, does not apply to an action in which it is merely sought to protect rights awarded in the adjudication proceedings.

12. Where, in a suit to protect water rights, the water commissioner was made a party defendant in his official capacity, he cannot complain because he was relieved from all further liability and his successor substituted in his

stead.

13. Defendants cannot take advantage of irregularity in the substitution of a codefendant which did not affect their substantial rights. 14. The admission of incompetent testimony which does not affect the result is not prejudicial error.

15. In an action to protect water rights, where no question of priority was involved, it was not error to exclude statutory statements of claim to the water in controversy.

16. In an equity case, where the issues were submitted to the jury, the determination of the court as to what interrogatories should be submitted cannot be disturbed.

17. Parties to an action cannot insist on a finding of fact, even though material to the issues, unless it appears from the testimony that it was involved.

On Rehearing.

18. The mere fact that the decree was not prepared or spread on the records until after the court had adjourned for the term was not ob

jectionable, where it appeared that it conformed to the findings of the court announced orally after the return of the verdict of the jury, though somewhat more in detail.

Appeal from District Court, Weld County. Action by the Farmers' Independent Ditch Company against the Buckers Irrigation, Milling & Improvement Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Charles D. Hayt and Clyde C. Dawson, for appellants. J. W. McCrury, for appellee.

GABBERT, J. The subject-matter of controversy is the right to water for the purposes of irrigation. To determine this question, appellee, as plaintiff, brought an action against appellants, as defendants. From a judgment for plaintiff, the defendants appeal.

The respective main ditches of the plaintiff and the defendant Buckers Company take their supply from the South Platte river. By statutory adjudication proceedings, the priorities of these ditches to the waters of this stream have been established, those of the plaintiff being in advance of the Buckers Company. The water in controversy is conducted through supply ditches known as the "Beaver Lake," "Smith Lake," and "Held Lake" ditches. All these ditches were constructed since the adjudication proceedings. The first two belong to the Buckers Company, and the latter to individuals who were not parties to this action. The water thus obtained is either drawn from sloughs or lakes, or collected by means of excavations between those lakes and sloughs and the river, and is either turned directly into the Buckers main ditch, or the volume from these ditches which is discharged into the river is turned into that ditch. So far as material to notice, it is claimed by plaintiff that all the water thus conserved will find its way into the river through natural channels and tributaries of that stream, were it not for the fact that it is intercepted by these supply ditches, and it is therefore contended that the Buckers Company is utilizing water which should go to the plaintiff to supply its priorities. To this claim as to the Buckers and Smith Lake ditches, the defendants interposed two defenses which, in effect are (1) that these supply ditches do not draw water from any tributary of the river, and (2) that, by dredging between the river and the sloughs, they have increased the flow of the natural channels along which these supply ditches extend by reclaiming waters resulting from seepage arising from the irrigation of uplands and from other sources, which would not otherwise reach the river through any natural channel, and therefore claim they are entitled to this increase. In order to more fully understand their position, it is proper here to notice *hat the defendant ditch companies, by their

joint answer, admit that they have made excavations along the channel leading from Beaver lake to the river for the purpose of collecting, controlling, and diverting the water from that lake, but assert that by so doing they have not interfered with the flow of water from the lake to the river, for the reason that the water from this source does not flow into that stream. They also, in effect, plead the same facts, and assert that the same conditions exist, with respect to Smith's lake and its outlet, except, perhaps, they claim that, previous to the construction of this ditch, no channel existed between Smith's lake and the river. With respect to the Held ditch, the defendant companies denied that they had constructed that ditch, or that they claimed or were diverting any water from that source. The defendant Hodgson answered to the effect that the right to the waters conducted through this ditch was claimed by certain persons, who, however, were not parties to this action, and that this water was reclaimed by the construction of a drainage ditch by these parties, who utilized it through the ditches of the defendant companies, and that he, in pursuance of his duties as water commissioner, turned it into these ditches.

For the purpose of aiding or advising the court on particular questions of fact material to the issues between the parties, questions were submitted to a jury for answer. From these answers it appears that each of the seepage or supply ditches is constructed in or adjacent to channels through which water flows into the river, and that the water thus collected is obtained from these channels, and from the sand and gravel underlying them and the sloughs and lakes which form their sources; that no water has been turned into either of these channels from any other source, and that the water flowing in these supply ditches has been increased to some extent since their construction from the irrigation of adjacent lands, but in what volume was not known. From these findings it is apparent that the several channels along and adjacent to the respective ditches are natural tributaries of the river. It is claimed by counsel for the defendants, however, that from the answers returned by the jury it appears that the volume of water flowing down the channels along which the Beaver and Smith Lake ditches are constructed has been increased by means of their supply ditches; that the findings of the jury were adopted by the court; and that the court erred in not awarding them this increase. Whether or not the court adopted as its own any finding which the jury may have made with respect to an increase of the flow of these streams is a matter which we must ascertain from such sources as it will be proper to consider in determining that question.

It appears from the record that the court ordered a final decree to be entered in ac

is not conclusive that the findings of the jury were adopted without any modification whatever. We must look to the decree as a whole to determine this question. After this verdict was filed, the character of the judgment which should be rendered was discussed by counsel, and the court, in expressing its views as to what was established by the verdict, very properly stated, in substance, that the answers must be construed as a whole; that it probably appeared there had been an artificial increase of the flow of water through the different sloughs or channels along and in which these ditches had been constructed, but that the defendant companies had not increased the supply of these several streams from any extraneous source; and that, in his opinion, from the testimony, whatever increase there might have been in the flow of these streams or sloughs occasioned by dredging and ditching was simply the concentration of the water already present in the gravel of these several channels. Turning to the decree which was finally entered, it appears that the court, from the evidence and upon the answers returned by the jury, taken and construed together, found the issues joined in favor of the plaintiff. From this we must infer that the court found these facts in favor of the plaintiff which were responsive to the issues made by the pleadings and essential to support the judgment rendered, unless the contrary appears from the specific findings which follow (Fanny Rawlings M. Co. v. Tribe, 29 Colo. 302, 68 Pac. 284); so that, according to this finding, the issue between the parties on the subject of increase was found in favor of the plaintiff. With respect to specific findings on that question, it appears from the decree that the defendant ditch companies, by the construction of their ditches, have intercepted all the waters flowing in Beaver brook, which is the name of the channel along which Beaver Lake ditch is constructed, and by such ditches have diverted all the surface and subterranean flow of that stream. This does not conflict with the general findings in favor of plaintiff. On the contrary, it indicates that the water which the defendants were diverting was derived solely from that which would naturally flow down the stream, and hence there was no increase. The court further finds the same conditions to exist with respect to the Smith Lake ditch, and that the surface and subterranean flows of the channel along which this ditch is constructed have not been increased to any appreciable or measurable extent from any source whatsoever. This is expressly against the defendants on the issue under consideration.

In an equity case, where the issues are submitted to a jury, their verdict is merely advisory to the court, and may be disregarded. Wilson v. Ward, 26 Colo. 39, 56 Pac. 573. The court may adopt such findings in

whole or in part, and, in lieu of those not adopted, make findings of its own. From the record, which discloses what the court did in this respect, it seems clear that if the jury, by the answers returned, did find that the defendant ditch companies had increased the flow of either of the streams along which the Beaver and Smith Lake ditches were constructed, the court disregarded this finding, and, in lieu thereof, found that such was not the fact. The location of these ditches with respect to the streams flowing from the sloughs or lakes from which they derived their supply of water, coupled with the finding of the jury that each of these streams was a tributary of the river, and that the water obtained by excavating these ditches was entirely secured from the surface flow and that flowing through the sand and gravel underlying these sloughs and streams, leads irresistibly to this conclusion. By these ditches the defendant companies not only intercepted the original surface flow of these streams, and withdrew water from the sloughs or lakes supplying them, but have likewise diverted the water saturating the sand and gravel constituting the bed of their channels and sources. This water is as much a part of the several streams as the surface flow, and is governed by the same rules. Platte Valley Irr. Co. v. Buckers Co., 25 Colo. 77, 53 Pac. 334; City of Los Angeles v. Pomeroy (Cal.) 57 Pac. 585. The defendants have not added to the water flowing down these several channels from any source, but are only diverting that which would naturally flow therein. Where, as in this instance, the only water secured by means of the ditches is derived from the natural flow of a stream, it must clearly appear that the water thus obtained is an actual and not an artificial increase. To permit parties to excavate in channels, or in lands so nearly adjacent that the water thus concentrated is derived from the stream itself, would result in the depletion of the stream, because it is obvious that, to the extent water is drawn from a natural channel, however accomplished, the result will be to decrease the volume discharged below the point of such diversion in the same proportion; and hence the necessity of parties, where their rights are based upon the alleged increase of the flow of a natural stream, to clearly establish that they have accomplished this result. It is only the actual increase resulting from the addition of water to a natural stream which would not otherwise pass down either its surface or subterranean channel to the benefit of other prior appropriators which the law recognizes as an increase of that character which can be diverted as against those entitled to its natural flow.

In so far as material to the issues between the parties, with respect to the Held ditch, the court found the same facts as regards the increase of water, and it is unnecessary to notice this phase of the case in detail.

No question of percolating waters is involved, because the waters passing through the sand and gravel constituting the bed of a stream, and the lands so nearly adjacent that the only and natural outlet would be through such channel, are not percolating waters, as ordinarily defined by the common law, but, as already stated, are a part of the waters of the stream. If they are withdrawn, the result is as much a depletion of the natural water course of which they constitute a part as though, diverted from the surface. Diversion by this means cannot be permitted when the rights of others are injuriously affected, for the natural and direct sources supplying the natural streams of the state must be protected from invasion, otherwise the rights of appropriators could be destroyed. Neither do we pass upon the question of seepage arising from irrigation, because it does not appear that any ascertained quantity of water was collected by either of the ditches from such sources.

Counsel contend that the court erred in rendering judgment against the defendants as to the Held's Slough ditch, irrespective of the question of increase. They base this contention upon the fact that the answer of the defendant Hodgson was not denied; that the persons who, from this answer, it appeared claimed the waters from this ditch were not parties to this action, and that there is no evidence tending to show that either of the defendants ever interfered with the water secured through this ditch. Whether or not the persons who, according to the answer of the defendant Hodgson, claimed the water diverted by this ditch, should have been made parties, and that their rights to such water could not be determined in their absence—a question which we do not determine-is wholly immaterial, if it appears from the testimony that the defendants against whom judgment was rendered were interfering with this water to the injury of the plaintiff. The defendant ditch companies made no claim to this water, and they cannot complain of any decree establishing the right thereto in the plaintiff as against them, so that their objections to the decree can only be considered in so far as it may include matters not warranted by the testimony under the issues on this branch of the case. They were enjoined from diverting the water from this source into their ditch. This is the only part of the decree to which they can be heard to raise any objection, because they have no interest in the water from this source. It appears, however, from the testimony, that the decree in this respect is correct. This ditch discharges its water into the river above the headgate of the main ditch of the Buckers Company, and, according to the testimony, is turned into that ditch under an agreement with the parties claiming it to pay them for its carriage. This water was handled precisely as the water derived from

the Smith's Lake ditch. The Buckers Company pays its superintendent for distributing this water, and, when not called for by the claimants mentioned in the answer of the defendant Hodgson, it goes in with the general supply flowing in the Buckers ditch, and is distributed impartially and prorated among all of the stockholders of the Buckers Company. It thus appears that the latter company is deriving a direct benefit by the use of this water, and it certainly cannot complain of the decree which prevents it from diverting it as against the prior rights of the plaintiff.

It appears, from the pleadings and supplemental answer of the defendants, that the proceedings adjudicating the rights to the use of water in the water district in which the ditches of the respective parties are located were had in the district court of Arapahoe county. For this reason counsel for defendants objected to the jurisdiction of the trial court to entertain the action, which was overruled. This objection was based upon the provision of section 2399, 1 Mills' Ann. St., which, in effect, provides that the court having properly acquired jurisdiction of a proceeding to adjudicate water rights shall thereafter retain exclusive jurisdiction for that purpose. No adjudication of water rights is sought in this action; no modification of the decree is asked. Plaintiff is simply seeking to protect the rights which were awarded in the adjudication proceedings. For this purpose the court had jurisdiction, without regard to the court in which the statutory proceedings were had. Medano Ditch Co. v. Adams, 29 Colo. 317, 68 Pac. 431.

Appellant Hodgson was made a party in his official capacity as water commissioner of the district in which the main ditches of the irrigation companies are located. During the progress of the trial his successor was substituted in his stead. It is claimed that this substitution was irregular, for reasons assigned, which it is not necessary to mention in detail. However irregular the proceedings of substitution may have been, is not a matter of which appellants can complain. Mr. Hodgson had no personal rights to protect; he was defendant in his official capacity; therefore he cannot complain because by the action of the court he was relieved from all further liability in the action. Neither were his codefendants prejudiced by the substitution, because the judgment rendered against them was in no manner affected by the change. The defendants cannot take advantage of irregularities or errors with respect to a codefendant which do not affect their substantial rights. School District v. Flanigan, 28 Colo. 431, 65 Pac. 24.

On behalf of plaintiff there was offered and received in evidence, over the objection of the defendants, copies of two decrees rendered in a case in which another party was