contracts covering these 155 rights were the same as the contracts covering the 133 rights theretofore sold. These 288 rights, with the 1/25 mentioned in the contract, which seems to have been regarded by the irrigation company as 12 rights or 1/25 of 300 rights, disposed of all the reservoir rights prior to the commencement of this action.

The pleadings in this action are very voluminous. The appellees, White, Houston, and Steele, each owning several reservoir rights, some of which were sold before and some after the date of the contract to supply water to the sugar factory, began this action against the irrigation company and the sugar company, setting up the construction, ownership, and details of operation of the ditches and reservoir, the reservoir contracts, the contract with the grantors of the sugar company, and alleging, in substance, that the irrigation company had supplied and would continue to supply to the sugar company more than one twenty-fifth of the water which was collected in the reservoir, or capable of being collected therein, either by permitting water to pass by the headgate of the Barnes ditch and into the canal or by taking it direct from the reservoir, so as to supply the sugar company a continuous flow of four cubic feet per second and at times more than that amount, and praying that the sugar company be restrained from demanding or receiving more than one twenty-fifth of such water as may annually be stored in the reservoir, and from diverting from the Barnes ditch water that may be lawfully stored in the reservoir from September 15th to February 15th in each year, and that the irrigation company be required to divert into the Barnes ditch and store in the reservoir all water coming to the headgate of the Barnes ditch during that period. The court below found the issues in favor of the plaintiffs, and, in short, adjudged that all of the water reaching the headgate of the Barnes ditch should be diverted through that ditch and stored in the reservoir during the nonirrigation season; that the sugar company was not entitled to any water from the reservoir unless it failed to get four cubic feet per second elsewhere, and then not in excess of the one twenty-fifth part, and the court found that the sugar company was not entitled to any of the water that was stored in or capable of being stored in the reservoir through the Barnes ditch, except the one twenty-fifth part as aforesaid. By the judgment, the sugar company must depend upon the accretions of water in the river below the headgate of the Barnes ditch and the seepage into the canal from the reservoir, and, if from these sources it does not receive a flow of four cubic feet per second, it may demand and receive from the reservoir enough water to make up the deficiency, not exceeding the one twenty-fifth part. The sugar company has appealed to

the reply brief as follows: "Our claim is the contract called for a continuous stream of four feet when available from the supply coming down the river to grantor's system during time specified, to be supplemented, if needed, by one twenty-fifth of water previously impounded in Lake Loveland, as a reserve to insure the quantity called for if at times the full river supply might not be available." The sugar company thus claims that under the contract of December 26, 1900, it is entitled to receive in the canal a continuous flow of four cubic feet per second from the water which reaches the headgate of the Barnes ditch, and that, if insufficient water reaches the headgate of the Barnes ditch to supply such a flow, it may receive from the reservoir enough water to make up the deficiency, not exceeding one twenty-fifth of what may be stored in the reservoir. While nothing is said in the quotation from the brief about the holders of reservoir rights, elsewhere it is said that, while the claimed rights of the sugar company cannot interfere with the holders of the 133 rights purchased before December 26, 1900, the reservoir rights sold after that date are subject to the contract as construed by the sugar company. The errors assigned all turn upon the construction of that contract. If the construction by the lower court is right, the judgment is right.

It is contended that during the operation seasons, from 1901 to 1903, immediately after making the contract, the factory owners received a continuous flow of four cubic feet per second. The sugar company in its claim does not make clear from whence this flow came. It claims that this was a construction of the contract by the parties themselves, which permitted a continuous flow of four cubic feet per second from the waters of the irrigation system, and that this construction is deserving of great, if not controlling, weight. If the weight of a contemporaneous construction by parties to an ambiguous contract be admitted as contended for, it cannot be applied here, for what was done by the parties to the contract from 1901 to 1903 does not conform to the construction now contended for. The court found, and that finding is binding because supported by sufficient competent evidence, that during all portions of the nonirrigation seasons, from the construction of the reservoir in 1893 to the commencement of this action in 1904, the owner of the reservoir "caused to be diverted, by means of its Barnes ditch, all of the waters flowing in said Big Thompson river at the headgate of said canal (Barnes ditch), and conveyed the same to said reservoir to be stored therein for the use and benefit of said corporation (owner of reservoir) and the holders of its reservoir contracts." So that from 1901 to 1903 the factory received a continuous flow of four cubic feet per second in one of two ways: First,

ditch and seepage, supplemented by not exceeding one twenty-fifth part from the reservoir; or, second, from the reservoir in excess of the one twenty-fifth part. If the factory was supplied in the first way aforesaid, it was in entire harmony with the contract as construed by the court below. If, however, it received more than one twentyfifth part of the water collected in the reservoir, it was in direct conflict with an unambiguous provision of the contract, and cannot be taken as a construction of a part of the contract, which needs no construction beyond its plain words. Another reason why it is doubtful whether the contemporaneous construction of the contract can have the weight contended for is that this contract affects the rights of third parties, the holders of reservoir rights who are not parties to it. Since the rights of those who are not parties to this contract are to be affected, it is likewise doubtful if the rule of strict construction against a grantor contended for should be applied here. In any event, it does not appear necessary to resort to such a rule. Human minds are bound to differ in the construction of a contract whenever there appears to be something in it that is ambiguous and uncertain. However, that which really appears ambiguous and uncertain to some may really appear unambiguous and certain to others.

What were some of the circumstances surrounding the water supply in the river at the time this contract was made? All of the water of the river coming to the headgate of the Barnes ditch had been appropriated for the reservoir, and for at least seven years before had been actually diverted from the river through the Barnes ditch into the reservoir, and from thence had been supplied to the holders of reservoir rights. If such diversion of all the water was to continue, the parties could not have had in mind any water from that source in excess of the one twenty-fifth part stipulated. What other supply, if any, appeared available? Before the contract was entered into, examinations of the water supply were made, and a measurement taken, and it was found that there were three cubic feet in the canal from seepage independent of any water from the river. The court found "that between the headgate of the Barnes ditch and the headgate of the Loveland and Greeley ditch (the canal) certain waters return into the Big Thompson river which are capable of being diverted by the Loveland and Greeley ditch, varying in amount from 3 to 10 cubic feet per second of time; that certain water came into the Loveland and Greeley canal below its headgate from the outlet of the reservoir and other sources which does not come directly from the river, and which aggregates from one to three cubic feet per second of time." The evidence showed, however, that much of this water was lost by seeping out of the canal

and otherwise before the factory was reached. It is alleged in the complaint that during the period from September 15, 1903, to February 15, 1904, the amount of water which the sugar company was entitled to receive from the accretions and seepage and 1/25 of that in the reservoir averaged not to exceed 24 cubic feet per second, and varied in amount from time to time. However, here was a source of supply about which the parties might contract, and from which they might reasonably hope to obtain the four cubic feet per second without interfering with other appropriations theretofore made, except possibly to the extent of 1/25 of the water in the reservoir. It is true that these accretions in the river and seepage in the canal were not certain and constant sources of supply. That the parties had in mind sources that were not certain and constant is evidenced to some extent by the fact that the supply was to be supplemented by water from the reservoir, if needed, and also by the fact that the contract itself protects the grantor in every conceivable way from a failure to supply four cubic feet continuously. It says that the grantor shall not be liable for a failure of supply, and then provides that there shall be no liability for any shortage in the supply occasioned by litigation, want of legal right to supply, drouth, or accident, and that, if there should be a shortage in the supply, there should be a pro rata reduction of the annual rental, which was fixed at $625 a year.

Looking at the contract itself, it says that there were to be supplied continuously four cubic feet per second of time flowing through the canal "from such water as the said party of the first part may be able to lawfully get into its said canal or its Loveland reservoir each year." How much would the irrigation company be able to lawfully get into its reservoir each year? The answer is, all the water coming to the headgate of the Barnes ditch. There can be no dispute about that. After it has thus gotten into its reservoir such water as it might be able to lawfully get there and which is all the water in the river at the head of the Barnes ditch, what water can it lawfully get into its canal? The answer is, the accretions and seepage which have been mentioned. It would be impossible for the irrigation company to get into the reservoir such water as it might be able to get there, and at the same time get any part of that water into the canal directly from the river, for no part of such water can be in two places at the same time. From such water as may be lawfully gotten into the canal and such water as may be lawfully gotten into the reservoir the four cubic feet of the sugar company are to be drawn. If the contract stopped there, the construction contended for by the sugar company might be irresistible. It does not stop there, however. It continues: "But the

maximum quantity to be drawn from the said reservoir during said period shall not exceed 1/25 part of the total amount of water that may be in the reservoir each year." The "total amount of water that may be in the reservoir each year" is, as before provided in the contract, such water as the irrigation company may be able to lawfully get into its reservoir, and which, as has been seen, is all the water coming to the headgate of the Barnes ditch. It follows, therefore, that the maximum quantity to be drawn from the water coining to the headgate of the Barnes ditch shall not exceed one twenty-fifth part of such water. To hold otherwise would be to render nugatory the limitation of the one twenty-fifth part. To say that under the terms of the contract more than one twenty-fifth part of the water which may be gotten into the reservoir may be taken at the head of the Barnes ditch, but only one twenty-fifth part of that which may be permitted to get into the reservoir may be taken, is in effect to entirely eliminate the limitation. Leaving out of view the difference, if any, in the loss by seepage, there is no difference in effect between taking the water directly from the reservoir and taking it on its way to the reservoir. In either way more than the one twenty-fifth part of the water which it may be able to get into the reservoir may be tak

en.

The contract does not appear to be one for the supply of a constant stream of four cubic feet per second, but appears to be one for the supply of that amount of water if it can be obtained from the water mentioned, for it provides that in case of a failure of supply there shall be no liability, but a pro rata diminution of the rent to be paid.

To this court the contract appears to be unambiguous and certain, and as the lower court, after a more extensive examination of the facts and circumstances surrounding the making of the contract and its subject matter, gave it the same construction as this court, the judgment is affirmed. Judgment affirmed.

STEELE, C. J., and CAMPBELL, J., con

session as it existed at the time the suit was commenced, evidence that defendant was in possession at the time of the trial was inadmissible, in the absence of a supplemental answer presenting such issue.

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. §§ 84-87; Dec. Dig. § 43.*] 3. PLEADING (§ 277*)-SUPPLEMENTAL PLEADINGS NECESSITY.

Matters occurring after the issues are made by the original pleadings cannot be considered unless brought into the case by supplemental pleading.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 834; Dec. Dig. § 277.*] 4. PUBLIC LANDS (§ 114*)-RIGHT TO PATENT -TITLE.

Where the right to a patent has vested in a purchaser of public lands, the execution and delivery of the patent are mere ministerial acts, and a patent does not invest the purchaser with any additional property, but merely gives him better legal evidence of the title first acquired by his certificate of purchase.

[Ed. Note.-For other cases, see Public Lands, Cent. Dig. § 314; Dec. Dig. § 114.*] 5. PUBLIC LANDS (§ 114*)-RIGHT TO PATENT

-TITLE.

Where a corporation purchased public lands certificate of purchase, the title to the property and became entitled to a patent, and received a vested in it, and the issuance of a patent, subsequent to its dissolution and the appointment of a receiver, conveyed no additional title, but was merely legal evidence of a title acquired by the receiver's receipt, and inured to the benefit of those who had obtained title through the proceedings to dissolve the corporation and their grantees.

Cent. Dig. § 314; Dec. Dig. § 114.*] [Ed. Note.-For other cases, see Public Lands,

6. CORPORATIONS (§ 621*)-DISSOLUTION-APPOINTMENT OF RECEIVER-TITLE. poration on its dissolution did not vest in the If the appointment of a receiver of a correceiver title to real estate situate outside the state in which the appointment was made, the of the corporation, and it could dispose of it as property outside of state remained the property if no receiver had been appointed, and a conveyance by it to the receiver was valid. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 621.*]

7. CORPORATIONS (§ 621*)-DISSOLUTION—APPOINTMENT OF RECEIVER-TITLE.

If the appointment of a receiver of a corporation on its dissolution vested in the receiver the title to all property of the corporation, wherever found, the validity of a deed of the corporation, conveying to the receiver property outside of the court's jurisdiction, was immaterial.

[Ed. Note.-For other cases, see Corporations, Dec. Dig. § 621.*]

8. WILLS ($ 434*) - FOREIGN PROBATE - EF

FECT.

Under Mills' Ann. St. § 4678, providing how a will probated in another state may be admitted to probate in Colorado, a will admitted to probate in a sister state is not valid for the purpose of devising real estate in Colorado, and a copy of a will admitted to probate in a sister state is not admissible to establish title under the will to real estate in Colorado.

[Ed. Note. For other cases, see Wills, Cent. Dig. $$ 940-944; Dec. Dig. § 434;* Evidence, Cent. Dig. § 1416.]

The Legislature may prescribe the form and

requisites of a tax deed.

[Ed. Note.--For other cases, Dec. Dig. 745.*]

see Taxation,

10. TAXATION (§ 754*)-TAX DEEDS-VALIDITY. An officer in executing a tax deed acts under a naked statutory power, and to be valid the deed must comply substantially with the statutory form.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1504; Dec. Dig. § 754.*]

11. TAXATION (8 765*)--TAX DEEDS-VALIDITY.

Under Mills' Ann. St. § 3902, providing that a tax deed shall be signed by the treasurer in his official capacity, and attested by his official or private seal, a tax deed without one or the other of the seals is void.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1524; Dec. Dig. § 765.*]

12. TAXATION (§ 765*) — TAX DEEDS-RequiSITES-SEAL-STATUTES.

Mills' Ann. St. § 441, providing that a conveyance of real estate need not be executed under the seal of the grantor, etc., affects private conveyances only, and has no application to tax deeds.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1524; Dec. Dig. § 765.*]

13. TAXATION (§_745*)-TAX DEEDS-NECESSITY OF SEAL-REPEAL OF STATUTE.

Mills' Ann. St. § 3902, providing that a tax deed shall be signed by the treasurer in his official capacity and attested by his official or private seal, is a special statute, and is not modified by section 4411, subsequently enacted, providing that conveyances of real estate need not be executed under the seal of the grantor; for it will not be assumed that the Legislature intends to modify a special statute by a subsequent general statute, in the absence of an intention to do so clearly appearing.

[Ed. Note. For other cases, see Taxation, Dec. Dig. $ 745.*]

14. TAXATION (§ 805*)-SUIT TO SET ASIDE TAX DEED-LIMITATIONS.

Mills' Ann. St. § 3904, limiting the time within which to sue for the recovery of land sold for taxes, does not bar an action to set aside a tax deed, on the ground that it is void on its

face.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1593-1597; Dec. Dig. § 805.*] 15. ADVERSE POSSESSION (§ 70*) COLOR OF TITLE.

Color of title can only arise out of a conveyance purporting to convey title to real estate. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. § 395; Dec. Dig. § 70.*] 16. ADVERSE POSSESSION (§ 79*)-COLOR OF TITLE-TAX DEED-LIMITATIONS.

Under Mills' Ann. St. § 3902, providing that when a tax deed is recorded, it vests in the grantee the title of the former owner, a tax deed does not purport to convey any title to real estate until it has been filed for record in the proper office; and Mills' Ann. St. Rev. Supp. 88 2923e, 2924, relating to possession of lands under color of title, do not give the grantee in a tax deed color of title until it has been filed for record.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. § 462; Dec. Dig. § 79.*]

ACTION-SUIT TO SET ASIDE TAX DEED. time within which to sue after the accrual of a Under Mills' Ann. St. § 2912, limiting the cause of action, the bar does not begin to run against a suit to set aside a tax deed, as void on its face, until the deed is recorded, because it is only after it has been filed for record that any title of the owner is conveyed.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 805.*1

Appeal from District Court, Gilpin County; A. H. De France, Judge.

Action by W. L. Sage against Hal Sayre. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Dorsey & Hodges and Edward I. Thayer, for appellant. Elliott & Bardwell and Sam' W. Johnson, for appellee.

GABBERT, J. Appellee, plaintiff below, brought suit against appellant, as defendant, to quiet title to the Borton lode mining claim, and to have a tax deed declared void. The judgment was in favor of the plaintiff, from which the defendant appealed.

The first point urged is that plaintiff failed to establish he was in possession of the property in controversy at the time he commenced his action. There is testimony from which it appears that defendant took possession of the lode claim in 1893, and possibly it might be said remained in possession until December, 1902, although it does not appear that he exercised any acts of possession over the property from September, 1898, to the commencement of this action. On the 8th of December, 1902, plaintiff had the ries with monuments and stakes, and emproperty surveyed, and marked its boundaployed a party, who performed work there on for a few days. Suit was commenced by filing a complaint the next day. It does not appear that prior to the commencement of the action defendant resumed possession. It is urged that taking possession in the manner indicated was tortious, that it was for the purpose of bringing suit, and that pos session acquired in such circumstances will not support an action to quiet title. In taking possession plaintiff committed no violence, nor did he obtain it by the use of unThe most that can fair or corrupt means.

be claimed is that he committed a trespass, but he obtained possession peaceably; and, even though it may have been for the purpose of bringing his action, a possession so obtained is sufficient for the purpose of maintaining a suit to quiet title. Phillippi v. Leet, 19 Colo. 246, 35 Pac. 540.

It is next urged that the court erred in rendering judgment in favor of the plaintiff because he failed to show that he was in possession of the property at the time the cause was tried. The defendant at the trial, over the objection of the plaintiff, intro

Plaintiff deraigned his title through a patent from the United States to the Rochester Gold Mining Company, a corporation. It is contended by counsel for defendant that this patent was of no force or effect, because of the following facts: The patent was dated August 1, 1877. The corporation had been dissolved, and a receiver appointed therefor on June 26, 1876. Upon these facts it is urged that no title passed by the patent because there was no corporate entity to receive it from the United States at the time it was issued. Whether or not this contention is sound, from the facts above narrated, is immaterial, because from other facts it is clear that the title to the property was in the corporation at the time the receiver was appointed. The company had purchased the lode claim from the government on the 7th day of June, 1876, and it became entitled to a patent as of that date, although it was not issued until the 1st of August the following year. Where the right to a patent has once become vested in a purchaser of public lands from the government, it is equivalent, so far as the latter is concerned, to a patent actually issued. The execution and delivery of the patent after the right to it has become vested are mere ministerial acts of the officers charged with that duty. U. S. v. Freyberg (C. C.) 32 Fed. 195; Simmons v. Wagner, 101 U. S. 260, 25 L. Ed. 910. A patent does not invest the purchaser with any additional property in the land which it purports to convey. It only gives him better legal evidence of the title which he first acquired by his certificate of purchase issued by the officers of the local land office. Omaha & Grant S. & R. Co. v. Tabor, 13 Colo. 41, 21 Pac. 925, 5 L. R. A. 236, 16 Am. St. Rep. 185; StrubyEstabrooke Co. v. Davis, 18 Colo. 93, 31 Pac. 495, 36 Am. St. Rep. 266. By virtue of the certificate of purchase issued to the corporation prior to the time a receiver was appointed therefor, the title to the property in controversy was vested in it, and the subse quent issuance of the patent conveyed no additional title, but was merely legal evidence of the title acquired by the receiver's receipt,

for the Borton lode. It is claimed that this deed is of no force or effect, for the reason that it was executed without an order of the court in which the dissolution proceedings were pending, and as the corporation had ceased to exist, it had no authority to execute such conveyance. We do not regard this proposition of any moment. If we should adopt the view of counsel for the defendant, to the effect that the appointment of a receiver for a corporation does not vest in him its title to real estate, situate outside the state in which the appointment is made, in support of which Simpkins v. Smith & Parmalee Gold Co., 50 How. Prac. (N. Y.) 56, is cited, then it follows, on the authority of that case, that the Borton lode remained the property of the corporation, and could be disposed of by it as if no receiver had been appointed, and hence the deed of the corporation to the receiver was valid. On the other hand, if the law be as claimed by counsel for plaintiff that the appointment of a receiver on the dissolution of a corporation vests in the receiver the title to all property of the corporation wherever found, whether within or without the jurisdiction of the court making the appointment, in support of which American Nat. Bank v. Nat. Benefit & Casualty Co. (C. C.) 70 Fed. 420, High on Receivers, § 303, and Owen v. Smith, 31 Barb. (N. Y.) 641, are cited, the title to the subjectmatter of controversy vested in the receiver. The receiver conveyed the property in controversy to one W. N. Sage. Plaintiff claims title as follows: Sage died intestate, deyising the property to his wife and son, the plaintiff. Mrs. Sage died intestate, leaving as her sole heir the plaintiff. The will was admitted to probate in the state of New York, the domicile of deceased. A certified copy thereof, together with certificates to the effect that it had been duly admitted to probate, and was proven agreeable to the laws and usage of the state of New York, was admitted in evidence on behalf of plaintiff. This, it is urged, was error, upon the ground that the will had not been admitted to probate in this state. We are of the opinion that the copy of the will was not admissible, and that the objection of defendant thereto was well taken, and should have been sustained. The probate of a will in one state does not establish its validity as a will devising real estate in another state, unless