ditch, and in releasing it from certain liens existing at the time of the execution of the deed of trust. The Alta Company then, in May, 1893, attempted to supply its ditch with water by means of the pumping-plant, but, after operating it for three or four days, the machinery was found to be inadequate, and the work was abandoned. This work resulted in getting water through, and settling, about one-half mile of the ditch. George Smith and Alexander Struthers were the principal officers of the Alta Company, and were in personal charge of its affairs. In October following this attempt to get water into the Alta ditch by means of the pumping plant, Smith and Struthers and others formed the Smith & Struthers Ditch Company, and built what is known as the "Smith & Struthers Ditch," which is described in the testimony as a ditch eight miles long, that taps Plateau creek about three-quarters of a mile from the mouth of the creek; thence, along the bank of Grand river until it comes to Rapid creek, where there is a head gate; thence, down the bank of the river, about one mile, where it crosses the Grand river by means of a pipe line; thence, through a cañon, by about 800 feet of fluming; and thence two miles, to the terminus of the ditch. The ditch is said to have cost $50,000. It was built to supply the lands under the Alta Land & Water Company's ditch with water, by flowing water from the Smith & Struthers ditch through the Alta ditch, and with the intention (as is shown by the correspondence) of deeding it, when completed and in operation, to the Alta Land & Water Company.

Upon the representations of Smith and Struthers that they were short of money, owing to the expense incurred in building the Smith & Struthers ditch, the appellant company granted several extensions of time to the Alta Land & Water Company in the payment of interest, and paid some taxes that should have been paid by the Alta Land & Water Company. Shortly after the commencement of the Smith & Struthers ditch, the iron pipe that was used at the pumping plant of the Alta ditch was, with the consent of the appellant company, moved about a mile up the river by the Smith & Struthers Company, and used to convey water across the river from the Smith & Struthers ditch to be turned into the Alta ditch; and water was so turned into the Alta ditch in sufficient quantity to settle about six miles of that ditch, but no further use has been made of it.

In 1897 a survey was made by Alexander Struthers of a ditch called the "Plateau Grand Canal," intended as an enlargement and extension of both the other ditches, and a statement was filed claiming appropriations of water from the Grand river, Plateau creek, and Rapid creek, but no work appears to have been done on it, and, in any event, the appellant company can have no stronger

claim to this ditch as subsequently acquired property, or as appendant or appurtenant to the Alta ditch, than it has to the Smith & Struthers ditch.

The court ordered a foreclosure of the deed of trust on all the property mentioned in it, including the iron pipe which was moved from the pumping plant to a point up the river, and found "that the Smith & Struthers ditch is not bound by the deed of trust to the plaintiffs, and that the lien created by said deed of trust of the Alta Land & Water Company does not attach to, nor include, the said Smith & Struthers ditch, and that the rights and appropriations acquired by the Alta Land & Water Company were not changed as to the place of diversion by the construction of the Smith & Struthers ditch; that Smith & Struthers, notwithstanding the fact that they were officers of the Alta Land & Water Company, were not estopped from acquiring title and property, as against the Alta Land & Water Company and its assigns, to the Smith & Struthers ditch and its appropriations, although the water conveyed through the Smith & Struthers ditch may have been, and was, allowed to flow into and through the ditch of the Alta Land & Water Company; * that the Smith & Struth

ers ditch was constructed as an entirely separate and distinct appropriation of water from Rapid creek and from Plateau creek, and did not in the least interfere with the appropriation of the Land & Water Company's appropriations of water from the Grand river; that the plaintiff had full knowledge that the defendants Smith & Struthers were constructing said ditch under and by virtue of an entirely different and separate appropriation from that of the Alta Land & Water Company's, and consented to the use of certain iron pipe, belonging to said company, for the purpose of connecting the Smith & Struthers ditch with the Alta Land & Water Company's ditch, and for conveying the water across the Grand river."

These findings of fact are supported by the evidence, and the law as announced by the court, based upon these findings of fact, is undoubtedly correct. The testimony shows that no money of the Alta Land & Water Company or of the Farm Investment Company was used in the construction of the Smith & Struthers ditch, and that Smith & Struthers were not employed by the Alta Company or the Farm Investment Company to build this Smith & Struthers ditch. So that it clearly appears that the Alta Company did not have either a legal or an equitable interest in the Smith & Struthers ditch.

It has been announced by this court that, where apt words are used in the mortgage, property acquired subsequently to its execution may become subject to the lien thereof (Jarvis v. Bank, 22 Colo. 309, 45 Pac. 505, 55 Am. St. Rep. 129); but no case has been cited to us which holds that property stand

ing in the name of some person other than the mortgagor becomes subject to the lien of the mortgage, unless the mortgagor has a legal or equitable interest therein.

The Farm Investment Company was permitted to foreclose its deed of trust as to all of the property of the Alta Land & Water Company at the time of the foreclosure. This embraced, not only the property in existence at the time of the execution of the deed of trust, but an extension of six miles or more made thereafter to the Alta ditch. It was denied the right to sell under its deed of trust the Smith & Struthers ditch, which was never owned by the Alta Land & Water Company, but which was constructed by Smith & Struthers with their individual funds, in the hope, it is true, of getting water upon the lands conveyed by the deed of trust, and of making sales of such lands, and of paying the indebtedness of the Alta Land & Water Company, and, finally, of consolidating the ditches; but the court found that it was constructed under a separate and distinct appropriation from that of the Alta Land & Water Company, that it did not in the least interfere with the appropriation of that company, and that the plaintiff company had full knowledge that it was being so constructed, and consented to the use of the iron pipe in the Smith & Struthers ditch. The fact that Alexander Struthers and George Smith were officers and directors of the Alta Land & Water Company and of the Smith & Struthers Ditch Company did not estop the latter company from acquiring as its property the eight miles of ditch above the head gate of the Alta Land & Water Company's ditch.

Under the circumstances of this case, it would seem to be most inequitable and unjust to subject this property to the lien of the deed of trust as after-acquired property of the Alta Land & Water Company, as it affirmatively appears that no money of the Alta Land & Water Company or of the Farm Investment Company has been used in the construction of the ditch, and that the construction of the ditch has not, except by the temporary removal of the pipe, impaired the security of the plaintiff company. The facts as established clearly sustain the judgment of the court refusing to extend the lien of the deed of trust to the property of the Smith & Struthers Ditch Company, and the judgment is therefore affirmed. Affirmed.

jurisdiction, or could submit the case to the jury without in the order distinctly stating the questions to be tried, or that the title to an 1fice could not be tried on mandamus, should not be considered in the appellate court unless the district was injuriously affected by the rulings thereon.

2. Though no objection to the sufficiency of an alternative writ of mandamus is made previous to trial on the merits, the question of sufficiency of the complaint may be raised in the appellate court, but will not theu prevail unless the pleading is so radically defective that it will not support the judgment rendered.

3. Plaintiff alleged that at a regular school election he received a majority of the votes for director. The defendants. members of the school board, refused him a certificate of election, or to recognize him as a member of the board. They claimed the office vacant, and had called another election to fill the vacancy. Held, that the complaint did not state a cause of action against the school district, since the district was not responsible for and could not control any of the wrongful acts complained of. 4. Where, in mandamus against a school district and its directors to compel the recognition of plaintiff's rights as a director, judgment is entered for plaintiff, and the district alone brings error, the judgment against its co-defendants does not injuriously affect the district, and no errors in the proceedings or judgment against them should be considered.

Error to Phillips county court.

Mandamus by Bernard Flanigan against school district No. 15, in the county of Phillips, and others. From a judgment for the plaintiff, the school district brings error. Reversed.

J. S. Bennett and Wm. T. Rogers, for plaintiff in error. W. D. Kelsey, for defendant in error.

GABBERT, J. This is a proceeding in mandamus originally instituted by defendant in error, as petitioner in the court below, to compel the plaintiff in error and certain individuals, alleged to constitute the board of directors of school district No, 15, as respondents, to issue him a certificate of election to the office of school director for such school district, to admit him to the rights and privileges of such office, and to restrain the respondents from holding an election for the purpose of electing a director ostensibly to fill the office to which he claimed to have been elected. On the issues made by the pleadings, the findings were in his favor, and judgment rendered accordingly. From this judgment the school district brings the case here for review on error.

The record proper is all that is before us. We can only look to the pleadings to determine the rights of the parties. They are exceedingly informal and imperfect. On behalf of plaintiff in error the cause is presented upon the theory that the court below had no jurisdiction of this proceeding; that it erred in submitting the case to a jury without distinctly stating in the order for that purpose the question to be tried and determined; and that in this proceeding title to the office of school director is involved, which cannot be tested and tried on mandamus. All these propositions may be correct, but they

are wholly immaterial, unless the rights of plaintiff in error have been in some way injuriously affected by the errors complained of. It is the only one of the respondents which has brought the case here for review. The others are not complaining of the judgment rendered. Therefore the school district cannot take advantage of any error which does it no injury, no matter how erroneous the proceedings may have been with respect to its co-respondents. Teller V. Hartman, 16 Colo. 447, 27 Pac. 947; Ball v. Nichols, 73 Cal. 195, 14 Pac. 831.

The point is made by counsel for the district that the pleadings of petitioner do not state a cause of action. It is only necessary to consider this one question for the purpose of determining whether or not the judgment of the court below is erroneous, so far as the school district is concerned. No effort appears to have been made in the trial court on behalf of the district to test the sufficiency of the alternative writ previous to trial on the merits. Notwithstanding this omission, that question can be raised on review. In such circumstances, however, it is not regarded with favor, and will not prevall unless the pleading thus attacked is so radically defective that it will not support the judgment rendered. In re Thomas' Estate, 26 Colo. 110, 56 Pac. 907; Insurance Co. v. Bonner, 24 Colo. 220, 49 Pac. 366.

The claim of petitioner, as stated in the alternative writ, is that at the regular school election of school district No. 15, held in May, 1899, for the purpose of electing a school director, he received a majority of the votes cast, but notwithstanding this fact the members of the school board, who were parties below, refused to issue him a certificate of election, recognize him as a member of the board, or admit him to the enjoyment of the office, and, in furtherance of their claim that there was a vacancy in the office to which petitioner claimed to have been elected, called another election for the purpose of selecting some one to fill such vacancy. The only material matter necessary to notice in the return to the writ is to the effect that, for some reason undis closed by the pleadings, the respondents insisted that the election at which petitioner claimed to have been elected was a nullity. All the facts stated in the alternative writ may be true, and yet no cause was stated against the school district. It is not responsible for the action of its board in refusing to recognize petitioner as a member thereof, or their refusal to issue him a certificate of election, or the refusal of one of their number to surrender his office to him, or their action in calling an election to fill a vacancy which they claimed to exist in the board. All such conduct upon their part, however wrongful as against the rights of petitioner, are acts for which the guilty parties would alone be responsible to the person injuriously affected thereby. In other words, the person

injured by such action could only call the individuals to account therefor, and not the district. It is not required to perform or refrain from any of the acts upon which petltioner bases his right to the relief demanded. It is plain, therefore, that no cause of action was stated as against the plaintiff in error.

The remaining question is, does the judgment rendered against the co-respondents of plaintiff in error injuriously affect its interest? The contest below was over the right of petitioner, as against one of the individual respondents, to occupy the office of director of the school district. With this contention the district is not concerned. Such

a controversy is limited to those contesting for the place. It is a purely personal matter between such individuals. To a proceeding to determine such a controversy the district is not, and cannot be made, a party, so that, although the judgment of the court below as to the merits of the controversy between petitioner and the individual respondents may have been erroneous for one or more of the reasons assigned by counsel for plaintiff in error, or the pleadings of petitioner may not state a cause of action against these respondents, the judgment rendered against them is not one in which plaintiff in error has any interest whatever; neither has it any interest in the subjects to which such judgment relates. For these reasons it is clear that any errors which the trial court may have committed in rendering judgment against its co-respondents do not affect its rights, and it cannot take advantage of such errors. The judgment of the county court, in so far as it granted relief or rendered judgment against the district in favor of petitioner, is reversed, and the cause remanded, with directions to dismiss the proceeding as to such district, with its costs. Reversed and remanded.

(28 Colo. 381)

WOODWORTH et al. v. HENDERSON. (Supreme Court of Colorado. April 8, 1901.) VENUE-ACTION AGAINST CORPORATION-RECOVERY OF PENALTIES.

Code Civ. Proc. § 26, provides that an action for the recovery of a penalty or forfeiture imposed by statute shall be tried in the county where the cause of action arose. Action was brought against the directors of a domestic corporation to enforce the penalty imposed by Mills' Ann. St. § 491, for failure to file an annual statement in a county other than that in which the corporation had its general offices and carried on its principal business, and in which county the officers resided and were served with process. Held, that the court had no jurisdiction, except for the purpose of granting an application for a change of the place of trial to the county where such directors lived, and ordering such change.

Error to Chaffee county court.

Action by Robert M. Henderson against I. J. Woodworth and others, as directors of a corporation. to recover certain penalties. From a judgment in favor of plaintiff, the defendants bring error. Reversed.

holders of water rights therein. By a supplemental agreement between the company and most of the holders of the water rights it was agreed that, when water rights equal to the amount of 160 cubic feet of water per second of time (or less, if the company should so elect) have been disposed of, it should, without further consideration, for the benefit of the purchasers of water rights, deed its canal, franchises, and property to a new company, in the manner provided in the original water deeds. The company has sold, approximately, water rights aggregating one-half of the estimated capacity of the ditch. It still retains the title to the ditch, and has made no offer to deed to the consumers, as provided in the water deeds or the supplemental agreement thereto. The company is still offering to sell water rights, and purposes enlarging its ditch so that its capacity may equal 160 cubic feet per second. The constitution (article 10, § 3) provides, "Ditches, canals and flumes, owned and used by individuals or corporations for irrigating lands owned by such individuals or corporations, or the individual members thereof, shall not be separately taxed, so long as they shall be owned and used exclusively for such purpose." In harmony with this provision, the legislature has provided "that all ditches used for the purpose of irrigation, and that only, where the water is not sold for the purpose of deriving a revenue therefrom, be and the same are hereby declared free from all taxation, whether for state, county or municipal purposes." Section 2397, 1 Mills' Ann. St. In designating the property which shall be exempt from taxation, the statutes state: * * Ditch

* *

es, canals, and flumes, owned and used by individuals or corporations for irrigating lands owned by such individuals or corporations, or the individual members thereof, shall not be separately taxed, so long as they shall be owned and used exclusively for such purpose Section 3766, Id. Exemptions from taxation are to be strictly construed, and cannot be enlarged by construction; for, unless the privilege is limited to the very terms of the law under which it is claimed, its operation would be extended beyond what was intended. Cooley, Tax'n (2d Ed.) 205; 25 Am. & Eng. Enc. Law (1st Ed.) 157; Railroad Co. v. Dennis, 116 U. S. 665, 6 Sup. Ct. 625, 29 L. Ed. 770.

The proposition of counsel for plaintiff in error is, in effect, that those owning water rights in the ditch are not charged for the use of water; that, by virtue of the ownership of such water rights, they are owners of interests in the ditch, and that water is not furnished to any one except these consumers; hence that it is used exclusively for irrigating lands owned by such consumers. The full material facts do not admit of this conclusion. True, the consumers pay nothing in the shape of an annual rental for the use of water, except such assessments as may

be levied for the purpose of keeping the ditch in repair. Conceding that they own an interest in the ditch, they are not as yet the sole owners. The company is a co-owner with them. The title to the ditch is still vested in the corporation. It has reserved to itself the right to retain such title until the capacity of the ditch has been sold. It still has a large number of water rights which it is offering for sale. While it may be true that at some time in the future the ditch will be owned exclusively by those using water therefrom for the purpose of irrigating lands which they own or in which they are interested, that is not the condition at the present time. The evident purpose of the company in still retaining the title to the Iditch is to derive a revenue from the fur

ther sale of water rights. That the purchasers of such rights may use the water in irrigating their lands only does not change the situation. The fact still remains that so long as the company is interested in the ditch, with water rights remaining unsold, it is its purpose to make use of the ditch as a means through which to derive a profit from the sale of further water rights. The provision of the constitution upon which the ditch company relies was adopted for the sole benefit of those canals which are exclusively used for irrigating lands owned by those who own the canal in whole or in part. Empire Land & Canal Co. v. Board of Com'rs of Rio Grande Co., 21 Colo. 244, 40 Pac. 449. The consumers appear to be making the use contemplated by the constitution, but the ditch company is not; hence the ditch is not used exclusively for the purpose of irrigating lands belonging to the owners of the ditch. In Empire Land & Canal Co. Case, supra, the facts as deduced from the averments of the complaint are essentially different from those in the case at bar. It was there held that, according to the statements in the complaint, the canal was used only for the purpose of irrigating lands belonging to the owners of such canal. The judgment of the district court is affirmed. Affirmed.

(28 Colo. 414)

RUSSELL v. SHURTLEFF et al. (Supreme Court of Colorado. Dec. 17, 1900.)

PLEADING-JUDGMENT-FORM-DEFAULT.

1. Under Mills' Ann. Code, § 169, providing that, if there is no answer, the relief granted to plaintiff shall not exceed that which he shall have demanded in his complaint, where the complaint prayed for judgment for a certain sum less one-fourth thereof, with interest, in the proportion of the respective interests of the defendants, a joint judgment against all the defendants for such sum on their default is beyond the jurisdiction of the court, and void.

2. Under Mills' Ann. Code, § 49. providing that the complaint shall contain a demand for the relief which plaintiff claims, a complaint damanding judgment against several defendants for a certain sum less one-fourth thereof in the proportion of their respective interests. and for other and further relief, as the court might deem just and equitable, does not au