Sec. 235. Prescriptive right.

Syl. "Plea of a prescriptive right to divert and take the waters of a reservoir, while being afterwards carried through the canal, must show the taking and enjoyment of the waters of the reservoir. An averment that the defendants have for a long series of years, 'diverted water from the canal without let or hinderance, etc.,' not avering that the water so diverted was water from the reservoir, is insufficient." Hackett v. Larimer & Weld Co., 48 Colo. 179, 109 Pac. 965.

Sec. 236. Replication-Aiding complaint.

Syl. "A defective complaint may be aided, and omissions supplied by the answer, or by allegations in the replication if acquiesced in." Water S. & S. Co. v. Larimer & Weld I. Co., 25 Colo. 87, 53 Pac. 386.

Sec. 237. Prejudicial error-Presumption on appeal.
See Appeal, Sec. 38.

Sec. 238. Variance-When not fatal.

"A variance which neither surprises nor harms a party is not necessarily fatal to the judgment." Doland v. Grand Valley I. Co., 28 Colo. 150-154, 65 Pac. 300; C. F. & I. Co. v. Cummings, 8 Colo. App. 541, 46 Pac. 875; Outcalt v. Johnston, 9 Colo. App. 519, 49 Pac. 1058; Schmidt v. Bank, 10 Colo. App. 261, 50 Pac. 733.

8. Amendment.

"By strict practice the defendant might have been required to amend its defense to correspond to the proof, but under the liberal provision of our code, the judgment will not be reversed for its omission to make that request, or for its failure so to amend its pleading, when it is apparent that substantial justice has been done." Doland v. Grand Valley I. Co., 28 Colo. 150-154, 63 Pac. 300.

Sec. 239. Receivers-Indebtedness created by.

"The receiver's indebtedness had to be cared for, and the court had the inherent power to place itself in a position which would enable it to make and enforce orders with respect to such indebtedness." La Junta & L. C. Co. v. Hess, et al., 31 Colo. 1-11, 71 Pac. 415.

Sec. 240. Setting aside a decree Stranger to action.

A stranger may move to set aside a decree if he is injuriously affected thereby. Crippen, Trustee, v. The X. Y. I. D. Co., 32 Colo. 447, 76 Pac 794.

Sec. 241. Venue-Change.

The judge having been attorney for one of the parties. See Kerr v. Burns, et al., 42 Colo. 285-292, 93 Pac. 1120.

Sec. 242. Wyoming.

Statutes and proceedings compared with those in Colorado. Crippen, Trustee, v. The X. Y. I. D. Co., 32 Colo. 447456, 76 Pac. 794.

CHAPTER XIX.

PRESCRIPTIVE RIGHT.

Water from reservoir § 243.

Adverse user-Color of title § 24.

Paper title required § 245.

See Easement, Sec. 170.

Sec. 243. Water from reservoir.

"No facts were alleged from which it would appear that by the lapse of time the defendants had acquired any prescriptive right to the use of reservoir water, for the reason that it nowhere appears that they had diverted water belonging to the reservoir company. True, they say they have diverted water from the canal without let or hinderance on the part of the plaintiff company, but they do not charge that the water so diverted was the water of that company." Hackett v. Larimer & Weld Co., 48 Colo. 178-186, 109 Pac. 965.

Sec. 244. Adverse user-Color of title.

To establish an adverse use, the claim must be based on "color of title," which is a paper title. Lower Latham D. Co. v. Louden I. C. Co., et al., 27 Colo. 267-276, 60 Pac. 629. See Abandonment, Sec. 3b, 3.

Sec. 245. Paper title required.

"The evidence fails to disclose that........have a paper title such as the statute requires upon which to base their claim to the use of the water. ***" Clark, et al. v. Ashley, et al., 34 Colo. 285-289, 82 Pac. 588; Lower Latham D. Co. v. Louden I. C. Co., et al., 27 Colo. 267, 60 Pac. 629.

CHAPTER XX.

QUIETING TITLE.

Change of point of diversion § 246.

Complaint in action for § 247.
Jurisdiction-Equity § 248.
Parties to action § 249.

(a) State officers.

(b) Administrator.

To a parole gift § 250.

To a perpetual water right § 251.
To a water right § 252.

See Adjudication, Sec. 24b.

Sec. 246. Change of point of diversion.

"Change of point of diversion can not be raised in an action to quiet title." Fluke, et al. v. Ford, 35 Colo. 112-116, 84 Pac. 469.

Sec. 247. Complaint in action for.

"Complaint may properly allege general ownership and possession and call upon the defendant to set up any adverse interest he may have or claim-Chapter 22 of the Code." Kimball v. Northern Colo. I. Co., 42 Colo. 412-421-429, 94 Pac. 333.

A complaint in an action to quiet title to a water right may have some of the characteristics of a bill to quiet title and also some of the features of a suit to prevent a disturbance or obstruction of a right to use water for irrigation. Gutheil P. I. Co. v. Montclair, 32 Colo. 420-422, 76 Pac. 1050. Sec. 248. Jurisdiction-Equity.

"That a court of equity, independent of statute, has jurisdiction to restrain interference with a water right, seems

well settled." Gutheil P. I. Co. v. Montclair, 32 Colo. 420425, 76 Pac. 1050.

"The court having acquired jurisdiction to restrain interference with plaintiff's use of water, might properly retain jurisdiction and determine all the rights of the parties, even though plaintiff is not in actual possession." Id. 425.

Sec. 249. Parties to action.

"An action to quiet title * * * does not lie at the instance of an administrator." Travelers I. Co. v. Childs, Admr., 25 Colo. 360-363, 54 Pac. 1020.

Sec. 250. To a parole gift.

Syl. "In an action to quiet title, a complaint which alleges that after plaintiff became of age he rendered services for his father, one of the defendants, in consideration of which his father made him a parole gift of the premises in suit, which plaintiff accepted in liquidation of his claim, and relying on said parole gift, and with the knowledge and consent of the defendants, plaintiff went into possession of said premises and erected thereon permanent and valuable improvements and thereafter remained in possession, alleges a sufficiently definite contract and is sufficient to support the action." Brothers v. Brothers, 29 Colo. 69, 66 Pac. 901.

Sec. 251. To a perpetual water right.

"While, in some of the deeds offered in evidence the description of the water right conveyed is rather indefinite; if considered in connection with the testimony offered, the admissions of the appellant, and the allegations of the complaint not denied, the description is made certain." Grand Valley I. Co. v. Lesher, 28 Colo. 273-288, 65 Pac. 44.

Sec. 252. To a water right.

An action to quiet title to a water right will lie. Kimball, et al. v. Northern C. I. Co., 42 Colo. 412-413, 94 Pac.