mortgagor, in his own name, recovers the whole loss, to the extent of the insurance; that where the mortgage debt exceeds the loss the mortgagee can recover the whole in his own name; that where the loss exceeds the mortgage debt the mortgagor and mortgagee each can sue for his share, unless by the terms of the policy the whole loss is payable to the mortgagee, although it may exceed his interest, in which case perhaps the mortgagee may be taken as assignee of the whole; and that in any case the mortgagor may sue for the whole loss, if the mortgagee consents, although the separate rights of each must be preserved at the trial, as it often happens that there are defenses against the mortgagor which are not available against the mortgagee. Palmer Sav. Bank v. Ins. Co. of N. Amer., 166 Mass. 189 (44 N. E. Rep. 211; 55 Am. St. Rep. 387; 32 L. R. A. 615). Sec. 413. Electing to repair-Liability of insurer. When an insurance company, under its contract, elects to repair, and fails to do so, and the assured completes the repairs, the insurance company is liable for the cost of the repairs, without reference to the amount of the insurance. The election to repair is a contract, which can only be discharged by its performance or execution. Defects in the material in the original building will not excuse nonperformance. Henderson v. Crescent Ins. Co., 48 La. 1176 (20 So. Rep. 658). IRRIGATION. EPITOME OF CASES. Sec. 414. Constitutionality of irrigation statutesLegislative control. Colo. Laws, 1887, p. 205, providing for the appointment of superintendents of irrigation who are required to distribute the water according to the decrees rendered, without reference to the water district in which such decrees are to be found, is held constitutional. Farmers' Inde. Ditch Co. v. Agricultural Ditch Co., 22 Colo. 513 (45 Pac. Rep. 444; 55 Am. St. Rep. 149). The court say: "As we have said, the act does not attempt to make such decrees conclusive as between the various districts, but in effect it provides that until the courts shall determine otherwise in some appropriate proceeding, the superintendent shall treat the decrees as prima facie correct, and distribute water accordingly. We believe this regulation is fairly within the police power of the state, as defined in the case of White v. Reservoir Co., 22 Colo. 191 (43 Pac. Rep. 1028), and that it violates no constitutional provision; the effect being only to require the distribution of water in a certain way until such time as the rights of the parties can be definitely ascertained and adjudicated. White v. Reservoir Co., 22 Colo. 191 (43 Pac. Rep. 1028). Undoubtedly the owners of priorities in one water district may, by appropriate pleadings, challenge the correctness of decrees entered in other water districts, where the rights of the former are unjustly affected thereby, and this may be done by answer in this case; but until such decrees are impeached no sufficient reason has been advanced why the public officers, intrusted with the distribution of water, should not be governed thereby, and, as we have attempted to show, such a course offers a solution free from constitutional objection, of what at best is a difficult problem." A canal used for the carriage of water for hire is affected by a public interest and subject to legislative regulation in respect to the distribution of the water; and a contract giving a consumer of water the right to draw and take from such a canal all he may be entitled to on tender or payment of the amount due therefor, if the owner of the canal fail or refuse to comply with the contract, is not protected against legislative interference made by a subsequent statute prohibiting such acts and regulating the distribution of water from such canals, but giving a remedy for the enforcement of the right to receive all the water to which the contract entitles him. White v. Farmers' Highline C. and Res. Co., 22 Colo. 191 · (43 Pac. Rep. 1028; 31 L. R. A. 828). Sec. 415. Appropriation-What constitutes-Abandonment. An appropriation proper is not made until there has been an actual application of the water claimed, to some beneficial purpose, or some useful industry; but the claimant is entitled to a reasonable time after he has diverted and carried the water to the place of use in which to make the actual application to the contemplated useful purpose. Nevada Ditch Co. v. Bennett, 30 Ore. 59 (45 Pac. Rep. 472; 60 Am. St. Rep. 777). Where one gives notice and records his claim of appropriation in accordance with a general custom and thereafter the work necessary and requisite to secure a diversion for a beneficial use is begun in good faith, and prosecuted with due and reasonable diligence until completed, and actual diversion made, the appropriation relates back to the first step taken; but if there has been an unreasonable delay in carrying forward the work of construction, and the works and appliances necessary to a diversion for the useful purpose intended are not completed within such time as reasonable diligence would require, the appropriation is considered as beginning with the date of actual diversion. Nevada Ditch Co. v. Bennett, 30 Ore. 59 (45 Pac. Rep. 472; 60 Am. St. Rep. 777). Mere nonuser of water right by the owners thereof for a period of three years, the existence of which is recognized by conveyances between them, does not amount to an abandonment, it not appearing that they intended to abandon it. Gassert v. Noyes, 18 Mont. 216 (44 Pac. Rep. 959). Sec. 416. Rights of appropriators of water-Priority. The first appropriator is only entitled to the water to the extent that he has use for it when economically and reasonably used. When he has that he cannot prevent others from making use of the surplus, Roeder v. Stein, 23 Nev. 92 (42 Pac. Rep. 867); but a prior appropriator who does not use all the water to which he is entitled may sell part of his water rights and allow the purchasers to divert the water to other lands, Larimer & Weld Res. Co. v. Cache La Poudre Irr. Co., 8 Colo. App. 237 (45 Pac. Rep. 525). A prior appropriator upon the main stream cannot enjoin one below him from subsequently appropriating water from a tributary thereof on the ground that he will eventually be affected by the failure of supply of water to parties appropriating from the main stream, whose rights are prior to his, where such persons are not made parties to the action and it does not clearly appear that the supposed injury will result from the acts of which he complains. Larimer & Weld Res'r Co. v. water - Pumping. Sec. 417. Methods of taking One having a right to take water from a stream for irrigation purposes is not confined to the use of ditches and canals, but may take his proportionate share by pumps or otherwise, and he may thus take water from a stream to irrigate lands above its level. Charnock v. Higuerra, 111 Cal. 473 (44 Pac. Rep. 171; 52 Am. St. Rep. 195). The court say: "It is contended by appellants that a riparian proprietor has not, for the purpose of irrigation, the right to raise water by means of pumps. No authorities are cited in support of this contention, and counsel states his inability to find any. So far as we can understand, this argument is based on the meaning of the word 'irrigate,' which counsel contends is to convey water by ditches,' and on the alleged universal custom in the past to employ such means in irrigation. As to the meaning of the word 'irrigation,' counsel cites some doubtful passages from civil law writers; but it is evident that this court, in holding, as it has repeatedly held, that riparian proprietors have the right to use a reasonable proportion of the water of the stream to irrigate their lands, used the term in no such restricted sense. The Latin word from which it is derived means primarily, to convey water to or upon anything, and, more generally, to wet or moisten anything; and the ordinary definition in our language is to water lands, whether by channels, by flooding, or simply by sprinkling. The mere method of obtaining the water with which to irri gate has nothing to do with the process of irrigation, or meaning of the word. There was no proof in this case of any such custom as is claimed by appellants; and if we can take judicial notice of such a matter at all, we are unable to say that pumping has never been used for such purpose. It may be that, owing to the comparatively greater expense of that method, it has been little used in the past; but if improvements in machinery have made or shall make that method practicable, we see no reason why riparain proprietors may not, like others, take advantage of such improvements. In fact it has always been considered that the reasonableness or lawfulness of any given diversion of water is in no wise affected by the mere mode of diversion. Thus, in Elliott v. Railroad Co., 10 Cush. 191, cited with approval in Lux v. Haggin, 69 Cal. 402, 404 (10 Pac. Rep. 674), Chief Justice Shaw said, 'One man may take water from a perennial stream of moderate size, by means of buckets or a pump, -for the mode is not material,-to water his garden.' And in such a case he says, 'the water would be used for irrigation' and such might be regarded as a reasonable use.' So this court has repeatedly held that a prior appropriator of water may change, at pleasure, the place or mode of his diversion, so long as others are not injured by such change. And in Earl of Norbury v. Kitchin, 7 Law T. (N. S.) 685, it was held that a riparian proprietor, so long as he took no more than his reasonable share of the water, might take water from the stream by pumping machinery, elevate it into a reservoir, and thence convey it by pipes to other lands, not riparian, and there use it; the court holding that neither the mode of diversion nor the use to which the water was actually applied was material,-the only question being whether or not the defendant had taken more than his reasonable share." Sec. 418. Conveyance of water rights. After a completed appropriation the appropriator may sell and convey his lands in connection with which the appropriation was made, and the water rights acquired thereby will pass appurtenant to the land. And this is so even where possessory rights to the public lands, the title to which has not yet been acquired |