Sec. 209. Abandonment Special plea.

See Abandonment.

When abandonment is pleaded as a defense, it comes within the general definition of new matter and must be specially pleaded. Hector M. Co. v. Valley M. Co., 28 Colo. 315-317, 64 Pac. 184.

Sec. 210. Adaptation of law to changed conditions.

"It would be unfortunate, indeed, if the law were such that it could not be adapted to changed conditions resulting from the character of crops grown by those engaged in agricultural pursuits." Seven Lakes R. Co., v. New Loveland & G. I. & L. Co., 40 Colo. 382-386, 93 Pac. 485.

Sec. 211. Arizona and New Mexico dissimilar to Colorado.

The statutes and customs of those states are so dissimilar to those of Colorado that the decisions in those states are of little value in Colorado. Fort Lyon C. Co., v Chew, et al., 33 Colo. 392-403, 81 Pac. 37.

Sec. 212. Adjudication-Allegation of Prima facie.

The allegation of an adjudication presents a prima facie case. Medano D. Co., v. Adams, Trustee, 29 Colo. 317-328, 68 Pac. 431.

Sec. 213. Allegations Legal conclusions.

Syl. "A complaint which merely alleges a priority of appropriation of the water of a natural stream, without alleging facts showing such prior appropriation, states a conclusion of law, only, and is upon demurrer fatally defective." Farmers' H. L. C. & R. Co. v. Southworth, 13 Colo. 112, 21 Pac. 1028.

a.

When appropriation is not an issue.

"The question of priority is not involved in the case at bar. Its purpose was to restrain the defendants from diverting water belonging to or under the control of, the plaintiff,

from the canal through which it was being conducted to its stockholders. The important ultimate question presented was, did the defendants have any right to this water? No question of priority of appropriation as between the parties was involved, and hence the strict rule regarding pleading a priority of appropriation will not be enforced." Hackett v. Larimer & Weld Co., 48 Colo. 178-183, 109 Pac. 965.

Sec. 214. Amount of water in adjudication.

Syl. "A complaint which alleges a contract for the use of water from a ditch sufficient to irrigate 160 acres of land. is sufficiently definite as to the amount of water, to state a cause of action." McClure v. Keon, 25 Colo. 284, 53 Pac. 1058.

"To now deprive them of these rights (water rights) would despoil them of the benefit of their expenditures and years of labor. To impose upon them, in case of a collateral attack, the burden of showing affirmatively that all steps had been taken to authorize the court to render the decree relied upon would, in many instances, work this result. While it is true that under the doctrine of some jurisdictions, the district courts of this state, in adjudicating water rights under the statute, would be held courts of limited jurisdiction, we prefer to adopt the rule, supported by abundant authority, that our district courts in such proceedings are courts of general jurisdiction, and thus protect the claimants of adjudicated water rights from the possibility of losing the fruits of their toil by the neglect or inadvertance of persons for which they are not responsible." Farmers Union D. Co., v. Rio Grande C. Co., et al., 37 Colo. 512-520, 86 Pac. 1042.

The publication and posting of notice of adjudication as required by statute is presumed, and the decree can not be attacked collaterally on the ground that such notice has not been given. Farmers' Union D. Co., v. Rio Grande C. Co., et al., 37 Colo. 512-519, 86 Pac. 1042; Van Wagenen v. Car

penter, 27 Colo. 444, 61 Pac. 698; Burris v. Craig, 34 Colo. 383, 82 Pac. 944.

1081.

See 17 A. & E. Encyl. of Law (2nd Ed.) Sec. 1080

Sec. 216. Criminal law-Contempt.

Proceedings for contempt will not lie against one interferring with a water commissioner in closing a headgate, Roberson v. People, ex rel. Soule, Water Com., 40 Colo. 119, 90 Pac. 79.

Sec. 217. Criminal law—Information.

"The information should show that the applicant for the water is of the class of persons entitled to invoke the protection of the statute; that is, to demand of the ditch owner and receive from him the water upon compliance by him with the terms of the statute. *** The pleading should designate the land for which the water was demanded as being so situatë that the duty of the ditch to furnish water for its irrigation is made to appear and that the company might ascertain its location so as to deliver the water." Schneider v. The People, 30 Colo. 493-499, 71 Pac. 369.

Sec. 218. Cross bill.

"The subject-matter of the cross-bill is not foreign to the subject of the original bill; it is the same subject-matter, but the cross-bill goes further, and like the answer, states additional facts relating to the controversy, for the purpose of justifying the conduct of the appellee, and to show a right to affirmative relief against the acts of appellant. This is not only admissible, but in most if not all cases, absolutely necessary to be done in drafting a cross-bill." Crisman v. Heiderer, 5 Colo. 593.

Sec. 219. Enlarged use.
See Sec. 70c.

Sec. 220. Evidence-None-Dismissal.

"Since no evidence was heard or offered by any of the parties, and as the first defense of the answer is a general denial of the material averments of the complaint, the judgment dismissing the action might be affirmed on that ground alone." Combs, et al., v. Farmers' H. L. C. & I. Co., 38 Colo. 420-423, 88 Pac. 396.

Sec. 221. Judgment Conclusiveness Condemnation.
See Damages, Sec. 136.

Sec. 222. Equity.

a. Jurisdiction-Easements.

"It is further insisted that this is not a case of equitable cognizance. As seen *** the action was brought to protect plaintiff in its enjoyment of an easement; such a proceeding is peculiarly within the jurisdiction of equity. Pomeroy's Equity Jurisprudence, Vol. 3 Sec. 1351; Fuller v. Swan River Placer M. Co., 12 Colo. 12, 19 Pac. 836." Croke v. The Am. Natl. Bank, 18 Colo. App., 3-7, 70 Pac. 229.

b. Jury-Advisory.

"In an equity case, where the issues are submitted to a jury their verdict is merely advisory to the court, and may be disregarded. *** 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." Buckers I. M. & 1. Co., et al. v. Farmers' I. D. Co., 31 Colo. 62-69, 72 Pac. 49.

c. Sufficiency of pleading.

"Upon reason and principle it would seem, therefore, that what the statute (in re adjudication procedure) regards and expressly requires as material facts to be alleged and shown in order to sustain a statutory decree, should be none the less essential to uphold a decree in a suit in equity intended to accomplish the same purpose, conceding that this form of

action may be maintained." Church v. Stillwell, 12 Colo. App. 43-47, 54 Pac. 395.

d. Relief to one not a party to an adjudication.

"If such relief can, in any event, be granted to one not a party to the original proceeding, the available remedy is a suit in equity and not a proceeding under the statute." Broad Run Co. v. Deuel & Snyder Co., 47 Colo. 573-577, 108 Pac. 755.

The "relief" meant is that sought by one not a party to the adjudication proceeding and after four years has elapsed.

Sec. 223. Estoppel.

a. Acquiescence.

"It is further alleged that ever since the date of the decree (1884) *** the defendant has in each and every year exercised its right to have the water turned into its ditch by the water commissioner to the extent of the appropriation awarded it, and that the water commissioner has recognized, during all such time, a seniority of the defendant's appropriation over that of the plaintiff, and that plaintiff, and its grantor, during all of such time, well knew that the defendant and its grantor claimed, took and used the water by virtue of its said priority; and notwithstanding the same, the plaintiff and its grantor were silent with respect thereto, and made no complaint, objection or protest to the defendant or to the water commissioner until about the time of the beginning of this action in August, 1893." Water S. & S. Co., v. Tenney, et al. 24 Colo. 344-346, 51 Pac. 505.

"We are satisfied that it (allegations of estoppel and evidence) is not sufficient to work a forfeiture of the superior rights which the decree conferred upon the ditch owned by the plaintiff company. *** in shutting down the headgates of these two ditches at different times the water commissioner frequently did it so nearly simultaneously and with so little apparent discrimination in favor of one against