tion of the witness to give testimony favorable to the estate of William H. Rohrer in the matter of the alleged fraudulent claims against it. This consideration must be held to be immoral, contrary to sound public policy, and subversive to the pure administration of justice.

Doubtless the conservator and the court had in mind only the protection of the estate, which they justly feared might be imperiled by the testimony of a witness, if defeated in her own desire to accomplish a selfish, if not a criminal, purpose.

T. A. McHarg, of Boulder, and B. F. Reed, C. M. Hawkins, and Horace N. Hawkins, all of Denver, for plaintiff in error.

Tedrow & Fitzgerald, of Boulder, for defendants in error.

ALLEN, J. This is an action which was brought upon a written contract, in the nature of a mining lease, by the lessees, hereinafter referred to as the plaintiffs, against the Wolf Tongue Mining Company, defendant and lessor, to recover "the market price of certain tungsten ores," which had been delivered by the plaintiffs to the defendant under the contract. The plaintiffs prevail

error.

But we can see no distinction in moral effect between such an inducement and one that has for its purpose the securing of tes-ed in the trial court, and defendant brings timony of a particular character to win a suit, universally condemned by all courts. Clearly then, the consideration or inducement to make the order was insufficient in law as being against good morals, and the county court was without power to do so, under our statutes.

Therefore the order of the county court authorizing the compromise of the claim of Mrs. Wagenblast is set aside, and the case pending in the district court must be tried on its merits.

The judgment is reversed.

[1] Numerous errors are assigned, but the only question that need be determined is whether or not the written contract in question permits a recovery upon the theory taken by the plaintiffs, or, in other words, provides for the payment of the prevailing marIn this ket prices for the ores delivered. connection, the language of the contract is as follows:

to

"The lessees covenant and agree deliver all marketable ore which shall be accounted for by the lessor upon the terms and conditions of its schedule and an

GARRIGUES, C. J., and DENISON, J.,nouncement of prices being paid by it at its

concur.

(67 Colo. 406)

said mill at the time of shipment."

It is shown by the record that the defendant did have and maintain a schedule and announcement of prices for tungsten ore de

WOLF TONGUE MINING CO. v. HINMAN livered to it. It is conceded that the plain

et al. (No. 9170.)

tiffs received payment for ores delivered by them in the amount fixed by such schedule

(Supreme Court of Colorado. May 5, 1919. and announcement, but they proceed upon

Rehearing Denied July 7, 1919.)

1. MINES AND MINERALS -CONSTRUCTION.

70(2)—CONTRACTS

A mining lease contract, by which lessees agreed to deliver all marketable ore to be accounted for by the lessor upon the terms of its schedule and announcement of prices being paid by it at its mill at the time of shipment cannot be construed as meaning that the schedule and announcement should correspond with the market price.

2. EVIDENCE 461(1) -PAROL EVIDENCE MINING LEASE-INTENT.

Where a mining lease contract plainly fixed the price to be paid for ore to be as scheduled and announced by the lessor, parol evidence is inadmissible to show that the parties intended that the prevailing market price for ores should

govern.

Department 3.

the theory that the contract means that the Schedule and announcement should correspond with the prevailing market price. The language of the contract admits of no such construction. There is nothing in the contract showing that the parties intended to make the schedule and announcement of prices at all times conform to the prevailing market price. It was left to be fixed by the defendant alone. The language employed in the contract cannot by any rule be construed to mean that the defendant should pay the market price, or that any price was intended other than the one scheduled and announced by the defendant. The provision as to the price to be paid is plain and unambiguous. As said in Shuler v. Allam, 45 Colo. 372, 101 Pac. 350:

"Where the words * ⚫ employed clearly exhibit the intention of the parties, there is no

Error to District Court, Boulder County; need for applying any technical rules of conNeil F. Graham, Judge.

struction, for where there is no doubt there is no room for construction other than that which the language of the contract imports."

[2] The contract plainly fixing the price at the defendant's schedule and announcement

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(182 P.)

of prices being paid by it at its mill at the time of shipment, parol evidence was not admissible to show that the parties intended or agreed that the announced prices should correspond with the prevailing market prices. Such evidence would merely add to the terms of the written contract, instead of explaining any of the expressed terms alleged to be ambiguous.

For the reasons above indicated, the judgment is reversed, and the cause remanded,

with directions to dismiss the action. Reversed.

pany obliged to turn it out to them regardless of their needs.

5. WATERS AND WATER COURSES 156(8)—
IRRIGATION · APPROPRIATION GRANT OF
RESIDUE AND RIGHT OF WAY.
Contract between original appropriators of
water in a ditch and a mutual ditch company
held not only to have granted to the company a
right of way in the ditch for water above the
needs of the original appropriators, but also to
have granted all incidents to such right of way,
the right to enlarge the ditch and carry water
through it to the limit of its enlarged capacity,
the control and management of the water, and
the residue of a decreed appropriation after the

GARRIGUES, C. J., and BAILEY, J., con- needs of the original appropriators were satis

cur.

(66 Colo. 429)

NEW BRANTNER EXTENSION DITCH
CO. v. KRAMER et al. (No. 9106.)
(Supreme Court of Colorado. May 5, 1919.
Rehearing Denied July 7, 1919.)

1. WATERS AND WATER COURSES 156(2)—
LIMITATION OF RIGHTS BY CONTRACT-RIGHT
TO COMPLAIN.

Individual landowners who constructed an irrigation ditch, and thereafter granted excess water to a corporation, cannot complain because, by such contract, 3 years before decree awarding an appropriation of water to the ditch generally, they placed limitations on their rights which granted the residue to the ditch

company.

2. WATERS AND WATER COURSES 144, 153 -IRRIGATION-APPROPRIATION OF WATERAPPLICATION TO OTHER Land.

An appropriator of water, after his right based on contract has ripened, if there has been no abandonment since the decree of appropriation, may apply the water to other land than that upon which the first application was made, or to sell it to others, who may apply it to other lands; such a transfer being legitimate. 3. WATERS AND WATER COURSES 144-AP. PROPRIATION-USE OF WATER.

fied.

En Banc.

Error to District Court, Denver County; Charles C. Butler, Judge.

Suit by the New Brantner Extension Ditch Company against John Kramer and others. To review a judgment for defendants, plaintiff brings error. Reversed and remanded.

The original construction of the old Brantner ditch taken out of the South Platte river immediately west of Brighton for the irrigation of certain river bottom lands was begun in 1860. It was then 11⁄2 miles long, and in 1863 2 miles more were added, and in 1872 it was extended to about 6 miles in length. This is spoken of as the old

Brantner ditch. Eight settlers then owned the water rights and the ditch. A right was a one-ninth interest, and was intended for of the original owners had one right each, the irrigation of 160 acres of land. Seven and one had two rights, making nine rights, and eight consumers. Like most of the early ditches, it was not incorporated, they were tenants in common, and it was owned and managed as a co-operative ditch for the purpose of supplying these early settlers with water. February 12, 1880, the right owners Water decreed a ditch for general irrigation entered into a written agreement with is not confined to the land on which the right other settlers and neighbors below the end growing out of contract ripened, and, if not of the ditch who wanted to enlarge and exabandoned subsequent to the decree, may be tend it to irrigate their lands. The latter applied to new or additional lands without put-represented promoters of a mutual ting the appropriation to a double use or duty. 4. WATERS AND WATER COURSES 158(2)CONTRACTS-OBLIGATION TO TAKE OR FUR

NISHI.

Where landowners owning water rights in a ditch contracted with a mutual ditch company to permit excess water to pass down the ditch for the use of members of the company, the company was obliged, under the contract and a decree declaring an appropriation of water, to keep a certain maximum flow in the ditch for the use of the original owners or appropriators when it could be obtained from the decreed priorities, and was needed, but the original owners ere not obliged to take such water, or the com

ditch

corporation, called the Brantner Extension
Ditch Company, which was organized for
this purpose. The contract was executed by
the right owners, as parties of the first part,
and by representatives of the proposed cor-
poration, as parties of the second part. It
recites that first parties own the ditch and
water, that second parties desire to use the
ditch and its right of way to procure water
for irrigation for themselves and associates.
In consideration of the premises, second par-
ties agree that, before April 15, 1880, they
will properly repair the ditch and put it in
good condition for use during that season,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
182 P.-2

In the original general adjudication proceeding, 3 years after the execution of the contract, the company filed its statement of claim headed, "Statement of Claim of Brantner Ditch, Now Brantner Extension Company's Ditch," which was signed and verified by the secretary of the company and by one of the original right owners, wherein it claimed "all water said ditch and its ex-ities awarded the Brantner ditch, and is a tensions will carry by reason of its original construction and several enlargements and extensions to the full capacity of said original construction and by reason of the re

(182 P.) construction of the contract that it grants an interest in the use of the water as well as the right of way, and the object of the suit is to ascertain that interest and quiet title thereto. Defendants claim, and the court below held, that it granted only a right of way through the old Brantner ditch. It is admitted that priorities Nos. 1, 4, and 27, amounting to 47.88 cubic feet per second, are based upon appropriations made by the old settlers, and the lower court, in effect, held that plaintiff's stockholders have no interest in, and are entitled to no part of, this water. The point of diversion has always remained the same, and there has been no greater diversion, either in volume or point of time, than decreed the ditch, and no abandonment. One hundred and eleven and eighteen one-hundredths second feet were awarded the whole ditch generally for irrigation after the enlargements and extension, unlimited in time, for the benefit of those entitled to the use thereof, and one object of this suit is to determine plaintiff's right to the use, and to quiet the title.

the construction we placed upon the contract, such part of the reserved water, regardless of the aggregate volume reserved, as was not used or needed by defendants on the laud under the ditch, was the remainder or residue, and was granted to plaintiff. This residue we said was conveyed by the contract, and we did not remand the case for the purpose of determining whether the use of the remainder had been granted. That was settled by the former decision.

2. Plaintiff is entitled, when needed, to divert all the ditch appropriation for irrigation upon the lands under the whole ditch system. There is no limit in the decree confining the use to any section of, or upon any lands under, or to any length of, the ditch. The water has been used since the decree indiscriminately for 29 years upon all the lands under the ditch, except that defendants have had the first call or preference right to the use of the reserved water to the extent of their necessity, and the residue has been used by plaintiff. It is well known that no consumer under a ditch like this uses water constantly. At such times as there was no use or need for its use by defendants upon their lands under the old ditch, plaintiff used, and was entitled to use, the remainder or residue; that is, the water not used or needed by defendants. In other words, the parties to this suit absorb the entire appropriation; when defendants' necessities are supplied, plaintiff is entitled to the use of the remainder. The part decreed the ditch and flowing therein, after sufficient has been distributed to defendants for the proper irrigation of their lands lying under the ditch when the contract was executed, is the residue or remainder.

3. The decree of the lower court was necessarily based upon a finding that nothing was granted by the contract, except a right of way through the ditch. This is not in harmony with what we said in 57 Colo. 218, 141 Pac. 498, Ann. Cas. 1916B, 1225, where we held that the residue or remainder was conveyed to plaintiff by the contract, and remanded the case for the lower court to ascertain and define the residue and quiet title thereto. It found that the volume of the first three priorities was reserved under the contract. Even if this be true, under

[1] 4. Counsel for defendants in error argue a number of points trying to uphold the action of the lower court, one of which is that the law prohibited the granting of the use of the residue or remainder. This, if the law, is but a general declaration not applicable to the facts of this case. We have defined what is meant by the residue or remainder of the reserved water, and the contract, for a valuable and sufficient consideration, grants the residue of the reserved water to plaintiff to be taken, owned, and used as it might desire. Three years later, after plaintiff enlarged the ditch and constructed the extension, and was in possession of all the ditch and the use of the residue, it was claimant wherein the ditch was awarded an appropriation of 111.18 second feet for irrigation use generally, not for any particular acres, or to any length of the ditch, or to any set of users, but to the whole ditch system. After the entry of the decree when the ditch superintendent called for the water, the water commissioner diverted into the river headgate, in the order of the decreed priorities, the appropriations decreed the ditch, and plaintiff used all the water diverted into the ditch, except that used by defendants. Defendants cannot complain now because they, by contract, 3 years before the decree, placed limitations upon their rights which granted the residue to plaintiff. That consumers from a co-operative or mutual ditch may regulate the use of the water among themselves by agreement upon the lands under the ditch has often been decided.

[2] Another point argued is that the use of the water appropriated by means of the old ditch is limited by law to the land upon which the appropriation was originally made, and that its application to additional acres under the extension constitutes an enlarged use of the appropriation in quantity or time. As hereinbefore stated, the decree is for general irrigation, with no limitation, excepting that of waste, upon the time of the use or the acres upon which the water may be applied. The ditch, under the decree, was entitled to divert all its decreed appropriation when obtainable and needed for irrigation. There would be times when defendants would not need to exercise their preference rights to the use of all the water reserved, and when not required by them their lateral headgates would be closed, and

[5] The court wholly ignored the grant of the residue, and its findings are based on the theory that the contract granted nothing but a right of way, whereas, it not only granted a right of way and all the incidents thereto, but the right to enlarge the ditch and carry water through it to the limit of its capacity when enlarged, and the control and management thereof, and the residue of the water after defendants' necessities were supplied.

the water flow onward for the use of others maximum amount, and plaintiff is obliged down the ditch. This we said was the re- to keep this maximum volume flowing in mainder which, under the contract, was the canal for their use when it can be obgranted to plaintiff. It is well known that tained upon the decreed priorities, and is since the entry of the early decrees in this needed, but this does not mean that defendstate the old irrigated lands require less ants are obliged to take it, or that plaintiff water, and improvements in the construction is obliged to turn it out to them regardless of ditches and more scientific methods of of their needs. irrigation have made possible a greater saving of water, so that the water of the early decrees may be applied upon a greater acreage than that upon which the right ripened. It would be an insular policy that would curtail the use of water, not abandoned, to the acres and kind of crops that were grown when the early appropriations were made. The decree is necessarily conclusive that there had been no abandonment of the first three priorities at the time the contract was signed. An appropriator, after the right has ripened, if there had been no abandonment since the decree, may apply the water to other lands than that upon which the first application was made, or sell it to other who may apply it to other lands; that such a transfer is legitimate has been so many times decided by us that it requires no citation of authorities.

[3] Another point argued is that to allow plaintiff to use the residue would be putting the appropriation to a double use or a double duty. The doctrine of double duty does not limit the use of the decreed appropriation to the lands under, or to the length of, the ditch as it was originally constructed. Water decreed a ditch for general irrigation is not confined to the land upon which the right ripened, and if not abandoned subsequent to the decree may be applied to new or additional lands. Weldon Valley Ditch

There is no need of a retrial of the case. The judgment of the lower court is reversed, and the case is remanded, with directions to enter a decree in accordance with the views herein expressed. Reversed and remanded.

(66 Colo. 332) (No. 8952.) May 5, 1919. Rehearing Denied July 7, 1919.)

SEIWALD V. PEOPLE. (Supreme Court of Colorado.

1. CRIMINAL LAW 576(1)—DELAY IN TRIAL-RIGHT TO DISCHARGE.

Defendant, charged with murder, was not entitled to an absolute discharge because two terms of court elapsed between filing of information and trial.

2. CRIMINAL LAW 200(1) — FORmer Jeop

ARDY-DISTINCT OFFENSES.

Where a person robbed and a police officer related in time, two distinct offenses were comwere killed, though the homicides were closely mitted by the murderers, so that defendant's former conviction of murder in the second degree of the officer did not interfere with his subsequent trial for murder of the person

293-PLEA-DEMURRER.

Co. v. Farmers' Pawnee Canal Co., 51 Colo. 545, 119 Pac. 1056; Arnold v. Roup, 61 Colo. 316, 157 Pac. 206. In mutual ditches where there are divers owners, at times some will only use part of their water, at other times not any, and the unused water flows on down the ditch for the use of others, which permits of the irrigation of a larger number of acres than that upon which the right rip-robbed. ened. This is not putting the water to a 3. CRIMINAL LAW double duty. In passing on the state's demurrer to de[4] It is also argued that the lower court fendant's plea of former jeopardy, nothing as found that plaintiff, under the agreement, to the evidence likely to be produced could be was required to leave in the old Brantner assumed. ditch at all times for use of defendants 2,592 inches of reserved water. This would be impossible except in the sense that we have interpreted the contract; that is, that the water must be taken from the flow in the ditch as it passes the lateral headgates, and that the remainder or residue not used or needed by defendants would pass down the ditch and may be used by plaintiff's stockholders. The contract and the subsequent decree involved running water which defendants had the right to use up to a

4. CRIMINAL LAW 53-HOMICIDE 309 (2) INSTRUCTION-MANSLAUGHTER-INTOXICATION.

In a prosecution for murder, trial court did not err in failing to instruct as to manslaughter, despite defendant's evidence as to his intoxication, as drunkenness, under Rev. St. 1908, § 1617, is not an excuse for crime, unless occasioned by the fraud, contrivance, or force of some other person, to cause perpetration of the offense.

Scott, J., dissenting.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes