taken. There would be much force in this contention of counsel, if it were not for the statute of this state, which requires the report to be in the form in which we find it in this record. The statute reads: "The report of the commissioners or the verdict of the jury in every case shall state: First, an accurate description of the land taken; second, the value of the land or property actually taken; third, the damages, if any, to the residue of such land or property; and, fourth, the amount and value of the benefit." Mills' Ann. St. § 1732. In Railroad Co. v. Stark, 16 Colo. 291, 26 Pac. 779, it is said that the statute is mandatory as language can make it. Under these circumstances, the fact that the commissioners in making their award followed the language of the statute literally should not occasion surprise. It is evident, however, that they fully understood the nature of respondents' title to the premises sought to be condemned; hence we cannot assume that they awarded compensation for a higher estate than that actually held by respondents. Although the language of the award is susceptible of such a construction, it is, we think, apparent that the award in this particular was framed in compliance with what was understood to be the command of the act. At no time has the nature of respondents' title been in dispute. It is alleged in the complaint, and admitted in the answers, while in the report the lands taken are referred to, not as the lands of the respondents, but as the lands occupied by them. Under the circumstances, we think it would be improper to assume that respondents were awarded damages for a greater interest than that actually held by them in the premises. We shall therefore decline to follow counsel into a discussion as to the rule of damages in cases of pre-emption, homestead, or leasehold claimants. There was no error in ordering an additional deposit sufficient to cover the amount of compensation ascertained and awarded. It is required by the statute, where, as in this case, petitioner desires to occupy and use the premises pending appellate proceedings. Mills' Ann. St. §§ 1725-1728; Railroad Co. v. Lamborn, 8 Colo. 380, 8 Pac. 582. The order must be affirmed. If, however, petitioner desires to abandon the proceedings and surrender possession of the property, it should present its application in this behalf to the district court immediately after the remittitur from this court is filed therein. Affirmed.

(20 Colo. 528)

SULLIVAN et al. v. COLLINS. (Supreme Court of Colorado. Feb. 8, 1895.) TAX TITLES - ACTION BY GRANTEE TO RECOVER LAND-EVIDENCE-LIMITATIONS.

1. In an action by a holder of a tax deed to recover a lot conveyed by it, it appeared that in the city plat the lot was described as “lot 5, block 144, C.'s addition to the city of D.," and that it was described in the tax list and in

plaintiff's deed as "lot 5, block 144, East D., A. county, Col." Held, that parol evidence was admissible to show that the two descriptions applied to the same property, and that the property was as well known by one description as by the other.

2. Mills' Ann. St. § 3904, provides that actions for recovery of land sold for taxes must be brought within five years after execution and delivery of deed, provided that when the owner of such land shall, when the deed is executed and delivered, be a minor, or insane, or an idiot, and residing within the United States, such person, his heirs or legal representatives, may bring action to recover such lands one year after such disability is removed, etc. Held, that such statute does not apply to an action by a purchaser at a tax sale, but only to an action by the prior owner, whose title is sought to be divested by the tax sale.

Appeal from district court, Arapahoe county.

Action by Edward H. Collins against A. B. Sullivan and others to recover a lot under tax

deed. From a judgment for plaintiff, defendants appeal. Affirmed.

This is a contest between Edward H. Collins, a grantee claiming under a tax deed executed by the county treasurer, and A. B. Sullivan et al., grantees of the owner at the time of the tax levy. The property was sold for taxes for the year 1876. As listed for taxes for that year, it is described as lot 5, block 144, East Denver, Arapahoe county, Col., and by this description is conveyed by the treasurer's deed. Under Colorado statutes, a tax deed executed by the county treasurer in his official capacity, properly attested, acknowledged, and recorded, is made prima facie evidence of the following facts: "First. That the real property conveyed was subject to taxation for the year or years stated in the deed. Second. That the taxes were not paid at any time before the sale. Third. That the real property conveyed had not been redeemed from the sale at the date of the deed. Fourth. That the property had been listed and assessed at the time and in the manner required by law. Fifth. That the taxes were levied according to law. Sixth. That the property was advertised for sale in the manner and for the length of time required by law. Seventh. That the property was sold for taxes as stated in the deed. Eighth. That the grantee named in the deed was the purchaser or the heir at law, or the assignee of such purchaser. Ninth. That the sale was conducted in the manner required by law." Gen. St. § 2932. In the district court it was claimed that the tax deed, and also the assessment, were void for uncertainty, and that plaintiff's action was barred by the statute of limitations. In the fourth defense the nature of plaintiff's title, as understood by the defendants, is set up, with certain facts tending to show the invalidity of such title. This defense was stricken out, upon motion; and the plaintiff thereafter, by leave of court, filed an amended answer, in which this defense was omitted. The statute of limitations with reference to the payment of taxes upon

unoccupied lands for five years, when such lands are held under color of title, was pleaded in the replication to the amended answer. A trial in the district court resulted in a verdict and judgment for plaintiff. The defendants bring the case here upon appeal.

Sullivan & May, for appellants. Markham & Carr, for appellee.

HAYT, C. J. (after stating the facts). It is conceded that prior to the levy of the taxes for the year 1876 the property was platted as a part of Clement's addition to the city of Denver, and that upon this plat, which was duly filed and recorded, the premises in controversy are described as lot 5, block 144, Clement's addition to the city of Denver. The contention of appellants is that the property could only be listed for taxes and sold by the latter description, while appellee contends that the property was equally as well known as lot 5, block 144, East Denver, and that it was properly assessed, advertised and sold by this description. In the court below, oral testimony was allowed for the purpose of showing that the two descriptions applied to one and the same property, and that the property was as well known by the one description as by the other. This testimony was objected to by counsel, and its admission is assigned for error in this court. It is a fundamental principle of the law of real property that parol evidence is admissible for the purpose of showing that a description used in a conveyance, as commonly understood in the vicinity, clearly designates the property. This principle, announced at an early day, has been so universally followed since that we shall rest content with citing a few cases in which it has been recognized: Laughlin v. Hawley, 9 Colo. 170, 11 Pac. 45; Chambers v. Watson, 60 Iowa, 339, 14 N. W. 336; McGregor v. Brown, 5 Pick. 170; Scheible v. Slagle, 89 Ind. 323; Caldwell v. Village of Carthage, 40 Ohio St. 453. Likewise, it has been held that a description of lands for taxation is sufficient if it afford means of identification, so that it can be determined exactly what lands have been sold, and for this purpose extrinsic evidence is competent. 1 Desty, Tax'n, p. 569; 2 Desty, Tax'n, p. 921.

It was contended in the court below, and is insisted upon here, that plaintiff's action was barred by section 3904 of Mills' Annotated Statutes. This section reads as follows: "No action for the recovery of land sold for taxes shall lie, unless the same be brought within five years after the execution and delivery of the deed therefor by the treasurer, any law to the contrary notwithstanding: provided, always, that when the owner or owners of such land, sold as aforesaid, shall at the time of the execution and delivery of the deed by the treasurer, be

minor or minors, or insane or an idiot, and residing within the United States one year after such disability is removed, it shall be lawful for such person or persons, their heirs or legal representatives, to bring their suit or action for the recovery of lands so sold, and when the recovery is effected in all cases, the value of the improvements, etc., made on the land so sold, and all taxes paid after the sale thereof, with interest thereon at the rate of fifteen per cent. per annum, shall be ascertained by the jury trying the action for the recovery, and paid by the person or persons recovering the same, before he, she or they shall obtain possession of the land so recovered." It is apparent that this section has no application whatsoever to the purchaser at a tax sale. It applies solely to the owner of the property, whose title is sought to be divested by the tax proceedings. The fallacy of applying this statute to the purchaser is well illustrated in this case. The property in question was sold in 1877 for the taxes of 1876, and in pursuance of said sale a tax deed was duly executed in the year 1880. The property was unoccupied and unimproved; hence, there was no necessity for the grantee of the tax deed to bring an action for the possession of the property, or to have his title declared legal, until some adverse claim should be set up thereto. The delinquent owner seems to have paid no attention to the property after the sale, until in the year 1889, when appellants sought him out, in a foreign land, and, for a small consideration, secured a deed to the property in controversy. Thereafter, appellants entered upon the premises, and erected improvements thereon, and thereupon appellee brought this action to recover possession. It is apparent from the foregoing statement that there was no necessity for appellee to bring his action at an earlier date, and, if he had done so, it must have been without avail. Until some party set up a title adverse to him, he was certainly not called upon to defend the title procured at the tax sale. The statute is for the purpose of protecting claimants under tax deeds, and, to that end, it is provided that an action by the owner shall be barred, if not brought within five years after the sale thereof. The bar in this case is against appellants. It is not a good defense to appellee's action. A demurrer to the second defense was therefore properly sustained. Moreover, as plaintiff, with color of title, had paid all taxes upon said property for five successive years, his title was protected by section 2187, Gen. St. 1883. De Foresta v. Gast, 20 Colo. -- 38 Pac. 244.

The fourth defense need not be separately considered, as, in so far as the facts pleaded were competent, they were admissible under the general issue. The judgment of the district court must be affirmed. Affirmed.

(20 Colo. 546)

DOWNING v. AGRICULTURAL DITCH CO.

(Supreme Court of Colorado. Feb. 8, 1895.) SUFFICIENCY OF COMPLAINT-SUIT FOR INJUNCTION -INDEFINITE ALLEGATIONS-AVERMENT OF

NEGLIGENCE.

1. A complaint to enjoin an irrigation company from making certain sales of its water, from which it may be inferred that plaintiff claims by virtue of rights acquired in the water prior to defendant, which he had never surrendered to it, and which, by arrangement with defendant, were to be enjoyed through its ditch; and that he claims under a contract between him and defendant made at the time the ditch was built, whereby plaintiff surrendered his prior rights, and defendant agreed to supply him with certain water before it supplied its stockholders; and that he claims priority over other stockholders because his purchase of stock was prior in time to the purchase of stock by the others; and which complaint does not show under which one of the claims plaintiff seeks relief, is too indefinite as to plaintiff's right to the water.

2. In charging defendant with negligence in regard to supplying plaintiff with water, the facts constituting such negligence should be set out, a mere allegation of negligence stating only a conclusion of law.

Error to district court, Jefferson county.

Action by Jacob Downing against the Agricultural Ditch Company to restrain defendant from selling water to its stockholders in proportion to their stock, regardless of the land which they held, and from supplying more recent subscribers to their stock to the damage of older and prior users and appropriators of the waters of their irrigating ditch. From a judgment for defendant, plaintiff brings error. Affirmed.

In the court below a demurrer to the original complaint was sustained, and the plaintiff filed his amended complaint, of which the following (omitting the formal parts) is a copy: "That the said defendant is a corporation duly organized under the laws cf the state of Colorado, and doing business in the county and state aforesaid; that said company was organized on or about the 1st day of April, A. D. 1874; that the purpose for which said company was organized was and is to irrigate lands situate in range 69, townships 3 and 4, and other lands, in Jefferson and Arapahoe counties, in the state of Colorado, and for farming and stock raising; that the capital stock of said company is $20,000, divided into 200 shares of $100 each, which said stock was and has been issued; that the water for said defendant's operations is taken from Vasques Fork or Clear Creek, in the county of Jefferson, aforesaid; that the lands owned and occupied by the plaintiff, hereinafter mentioned, were owned and occupied by said plaintiff in the year A. D. 1869, and long prior to the construction of said ditch of said defendant, and the said plaintiff was then entitled to water for the irrigation of the same from said Vasques Fork or Clear Creek, and was entitled to have said water conducted through said ditch for the purpose afore

said, and upon the construction of said ditch said plaintiff procured, as hereinafter stated, from said ditch company, and appropriated, applied and diverted, two hundred inches of said water, for the purposes aforesaid, and has never since waived or abandoned said right to have and use the said two hundred inches, but is still entitled to the said amount of water; that the capacity of the ditch of said defendant is about six thousand inches; that the average amount of water carried by said defendant in s said ditch during the irrigating season, because of the negligence and bad management of its officers, servants, and employés, has not and does not exceed, to wit, three thousand inches; that the said defendant, during the irrigation season, can legally obtain sufficient water to run said ditch at its full capacity, to wit, at six thousand inches, but has hitherto neglected so to do; that, by the by-laws of said company defendant, no one can obtain water from said ditch except stockholders in said company; that said plaintiff is a stockholder in said company, and has been for about twelve years last past the owner and holder of three shares of said stock, which is in the name of said plaintiff upon the books of said company, with no assessments or other indebtedness thereon; that said plaintiff owns and occupies a large body of land, to wit, five hundred acres of land, situate in said county of Jefferson, and within the township and range hereinbefore mentioned, under cultivation, and depending on the waters of said ditch, so taken from said Vasques Fork, and capable of being irrigated and supplied by water from said ditch, and, for the purpose of securing his said water by means of said ditch for the irrigation of said land, said plaintiff became a stockholder in said company, and with the agreement and understanding with said defendant that said plaintiff should have sufficient water to irrigate the said land properly during the irrigating season, and said plaintiff is ready and willing, and has always been ready and willing, to pay, and has tendered the said defendant the compensation required, for the water, to wit, two hundred inches, needed by said plaintiff to irrigate his said land, and which said defendant could have supplied but for its collusive, unjust, and inequitable discrimination in the distribution of said water, and its collusive, fraudulent, and improper management of its said business in the premises; that if said defendant, its officers, servants, and employés, would carry in said ditch a quantity of water equal to its capacity, and would properly and equitably distribute the waters so carried in said ditch, said plaintiff might have sufficient water to irrigate his said lands during the irrigating season; that said plaintiff became a stockholder in said company long prior to numerous stockholders (at present unknown to plaintiff, but who, when discovered, plain

tiff prays may be made parties hereto, if necessary), but that said subsequent stockholders claim the right under and by virtue of their said stock, and not because of any prior rights over said plaintiff, to be entitled to take and use the waters of said ditch, regardless of the prior rights, appropriation, uses, and rights of said plaintiff, and said defendant has heretofore and still does accede to and comply with the demands of said subsequent stockholders, to the great damage of said plaintiff; that said defendant persists in apportioning the waters of said ditch in accordance with the shares of stock held by the several stockholders, ard not in accordance with the necessities of the land to be irrigated, and the prior rights of the parties interested therein, and that could and otherwise would be irrigated and supplied with water from said ditch; that said plaintiff, for the proper irrigation of his said land, requires at least two hundred inches of water; that said defendant, being able to supply said plaintiff with said two hundred inches, has heretofore refused so to do on request, pretending that other and subsequent stockholders were, by reason of their said stock, entitled to take, use, and appropriate the waters of said ditch in the proportion of forty inches to each share of stock, and said plaintiff avers that to so apportion said water would more than exceed the capacity of said ditch, and that certain of said stockholders have no lands whatever to be or that could be in any circumstances supplied with water from said ditch for irrigation or any other purpose; that said plaintiff has repeatedly called upon certain of the stockholders, as well as upon the trustees, of said company defendant, to take such steps as would remedy the grievances complained of herein, but that said stockholders holding a majority of said stock and said trustees have hitherto neglected and refused to do anything whatsoever to remedy the grievances aforesaid; that said defendant has heretofore and at all times collusively, and contrary to equity and good conscience, discriminated between the parties entitled to water from said ditch, and has hitherto failed, and still fails, neglects, and refuses, to properly and equitably distribute the waters of said ditch, and to supply the necessary quantity to said plaintiff and other prior appropriators, purchasers, and users of said waters. And said plaintiff avers that, without the intervention of this honorable court, he is remediless in the premises, and the grievances aforesaid will be continued by said defendant to the irreparable injury and damage of said plaintiff; that said defendant should be restrained by an order of this honorable court from supplying, or attempting to supply, water to said stockholders apportioned to their stock regardless of the land to be, and which would otherwise be, supplied with water from said ditch, and from supplying the more recent v.39p.no.3-22

subscribers to said stock to the damage of the older and prior users and appropriators of the waters of said ditch." Then follows the prayer for relief by way of injunction. To this amended complaint the defendant interposed a demurrer, on the grounds that the same does not state facts sufficient to constitute a cause of action; that it is uncertain and insufficient, in that it fails to state with sufficient particularity the facts upon which the plaintiff relies for a recovery; and that there is a defect of parties defendant. This demurrer was sustained by the court below, and plaintiff brings the case here upon a writ of error.

L. B. France, for plaintiff in error. C. J. Hughes, for defendant in error.

CAMPBELL, J. (after stating the facts). The grievance of which the plaintiff complains, and which he has attempted to state in his complaint, is that the defendant has deprived him of the use of water for irrigating his lands, to which water he asserts a right superior to that possessed by the defendant. In order to entitle him to the relief sought, his pleading must show that he has such prior right, and that defendant has un. lawfully deprived him of it. The pleader has set forth, at considerable length, what he claims to be the facts which constitute plaintiff's priority, but he has not done so, in accordance with the correct rules of pleading. There are three different phases in which defendant's alleged priority may be considered. It might be inferred that he claims his priority by virtue of an appropriation made long before the construction of defendant's ditch, which he never surrendered or conveyed to defendant, and which, by some arrangement with the defendant, was to be enjoyed by plaintiff through the defendant's ditch. It may be inferred that the right claimed originated as the result of a contract entered into between the plaintiff and defendant at the time of the construction of the defendant's ditch, whereby the plaintiff surrendered and conveyed to the defendant the prior right theretofore possessed by him, and in lieu thereof defendant agreed to supply him with the 200 inches of water before it supplied its other stockholders. Another inference that might be drawn is that plaintiff claimed his priority over the other stockholders of the defendant company because his purchase of stock from the defendant company was prior in time to the purchase of stock by the others. These inferences, however, do not enable us to reach any conclusion as to what the plaintiff's contention is. It may be said that it was unnecessary for plaintiff to state how, or of whom, he acquired his superior right; but that, if his right is paramount, it is immaterial to the defendant when, or how, or from whom the same was obtained. Counsel for the plaintiff, however, evidently assumed that it was proper to do so, as the pleading sufficiently