PURTENANCES. Whether a right passes with the land as an appurtenance depends upon the circumstances of the case, and the intention of the parties. [Ed. Note.-For other cases, see Deeds, Dec. Dig. § 117.*] 4. WATERS AND WATER COURSES (§ 154*)IRRIGATION RIGHTS -TRANSFERS RIGHTS CONVEYED IMPLICATION. Where a deed to land specifically described the water rights granted, the grantee did not take by implication additional water rights to irrigate a part of the land which could not be irrigated from the rights granted. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 154.*] GRANTEE. 5. WATERS AND WATER COURSES (§ 154*)— TRANSFER-RIGHTS PASSING - SUBSEQUENT Where land was granted to the several daughters of the grantor, with specific water rights appurtenant to each parcel, the fact that they did not strictly adhere to their respective water rights would not enlarge the rights of a subsequent grantee of one of them. 3. DEEDS (§ 117*)-PROPERTY CONVEYED-AP- her four daughters, then living, 40 acres of this quarter section, each one taking 20 acres in the north, and 20 acres in the south, row of the tract so divided. The conveyance was made by one deed, which, after particularly designating the four several interests in the land conveyed, thus described the water rights granted with the lands: Together with the following water rights, to wit: To the said Olive I. McGinnis and Lillian B. Brinkerhuff each the right to purchase yearly from the irrigating ditch known as the 'Eureka Ditch' for use upon their respective parcels of land lying under and below said Eureka ditch twelve and one-half inches of water; and to the said Laura E. Randall and Emily F. Briggs each the right to use each and every year hereafter during the irrigating season thereof for the south twenty acres hereby granted and conveyed to her twelve and one-half inches of water from the upper lake situate on the northeast quarter of the southwest quarter of said section eight, and the right of way for a ditch to convey said water from said lake to their said lands; and to all of the said parties of the second part the right to use the balance of the water of said upper lake and the whole of the water of the lower lake on said last named forty-acre tract of land during each and every irrigating season hereafter for the irrigation of the remainder of their said lands respectively, each to have an equal share of such water and the right to enlarge the said lakes and to the use of the increased supply of water arising from such enlargement, each to have an equal share of such surplus or increased supply, and each to bear an equal [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 154.*] 6. CONTRACTS (§ 170*)-CONSTRUCTION-CONSTRUCTION BY PARTIES. The construction placed upon a contract by the parties thereto is important only where the express language of the contract is doubtful or ambiguous. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 753; Dec. Dig. § 170.*] Appeal from District Court, Jefferson County; A. H. De France, Judge. Action by Edward W. Davis against Laura E. Randall and others. From an order overruling a motion for a new trial and a judgment dismissing the action, plaintiff appeals. Affirmed. George W. Taylor, for appellant. J. W. part of the expense or cost of such enlargeBarnes, for appellees. CAMPBELL, J. The ostensible object of this action was to restrain defendants from interfering with plaintiff in conveying water through certain ditches and laterals across defendants' lands and reconstructing or repairing the same. The record justifies the assertion that the real purpose was to establish in plaintiff the right to the use of water for irrigation purposes as against the asserted right of the defendants thereto. At the close of plaintiff's evidence the court, on defendants' motion, nonsuited plaintiff, and afterwards overruled his motion for a new trial, and dismissed the action. The controversy upon this review is therefore to be determined upon plaintiff's own evidence. The salient facts are that Laura E. Cook, in the year 1893, owned, in one contiguous tract, a quarter section of land and also other contiguous or adjacent lands, water rights, reservoirs, and ditches for applying water thereto. She divided the quarter section into eight 20-acre tracts, four of which lay on the north, and four on the south, side thereof. She sold and conveyed to each of ments." Other description in the deed relates to grants of right of way for ditches to carry water to these several parcels. Thereafter plaintiff acquired title to two of these northern 20-acre tracts, one of which had theretofore been conveyed to Lillian B. Brinkerhuff, and the other to Emily F. Briggs. By plaintiff's deed he acquired title to the same water rights which Mrs. Brinkerhuff and Mrs. Briggs got by their deed from their mother, the latter deed being referred to in plaintiff's deed for a description of the water rights conveyed to him. As we understand the record, plaintiff does not claim any other or different water or ditch rights than those expressly and by implication conveyed in the deed of Mrs. Cook to her two daughters, except such rights as, under another source of title, he claims to have obtained as the result of an independent appropriation, which latter claim will be hereinafter separately considered. It appears from the complaint, and also by the evidence, that the ditches, concerning which plaintiff seeks injunctive relief, and which are used for irrigating his lands, are higher up than either of the lakes or reservoirs *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes which are the source of supply of the water or intended should pass. On the contrary, with which the northern row of 20-acre tracts it is very specific, and clearly defines the was to be irrigated; and it likewise appears particular interest or easements in ditches that these reservoirs or lakes are lower than and the water rights which are the subject the northern portions of such tracts. The of the grant. Quite true, no water rights plaintiff introduced evidence that before Mrs. were specifically described or conveyed with Cook conveyed to her daughters, she had, at which the northern portion of the northern different times, and in different ways, applied 20-acre tracts could be irrigated. Nevertheto her different tracts of lands the water less the grantor had the right, if the grantee rights which she owned, without observing was willing to accept the deed, to convey the apportionment of water as made in her only sufficient water rights to irrigate the deed to the four separately transferred southern portion of the northern row of tracts, and after the conveyance to her 20-acre tracts. The deed having thus cleardaughters they did not always adhere to, orly described the water rights which it was observe, such apportionment. There is no contention, and if it was made it could not be maintained, that plaintiff has not enjoyed the use of the water that was particularly described in the deed from Mrs. Cook to her daughters, and in his own deed for the two 20-acre tracts; but the claim made by plaintiff against defendants, who are immediate and remote grantees of the other two parcels, is that, since Mrs. Cook made conveyance of these two 20-acre tracts, which by mesne conveyances plaintiff has acquired, the implication of law arises that whatever is incident and necessary to the enjoyment of the land also passed as an appurtenance, whether so described or not. Otherwise expressed, it is contended that, as in this case, "When an owner divides his land into several parts and conveys away one of them, he is taken by implication to include all such easements as are necessary for the reasonable enjoyment of the part which he grants, in the form which it assumes at the time of the transfer." In support of this proposition plaintiff cites Cave v. Crafts, 53 Cal. 135, Kelly v. Dunning, 43 N. J. Eq. 62, 10 Atl. 276, Elliott v. Rhett, 5 Rich. Law (S. C.) 405, 57 Am: Dec. 750, Wilson v. Higbee (C. C.) 62 Fed. 723, and Lampman v. Milks, 21 N. Y. 505. We do not say that these cases do not announce a correct rule under their facts, but we do say that the legal principle asserted has no application whatever to the facts of this case. Conceding that the doctrine is sound in those cases where the conveyance is silent as to easements or water rights, such is not the case we are considering. In this state the right to the use of water for irrigation is deemed real estate, and is a distinct subject of grant, and may be transferred either with or without the land for which it was originally appropriated, and whether a "water right" passes in a deed of land as an appurtenance, in the absence of express terms in the deed, depends upon the circumstances of the particular case and the intention of the parties. Strickler v. City of Colorado Springs, 16 Colo. 61, 26 Pac. 313, 25 Am. St. Rep. 245; Arnett v. Linhart et al., 21 Colo. 188, 40 Pac. 355. This doctrine has been often approved in this court in subsequent cases. Plaintiff's deed is not silent as to the easements in the intention of the grantor to convey, there is no room for the application of the doctrine of implied grants for which plaintiff contends. The matter is one of convention and not of implication, and the extent of plaintiff's water rights is to be determined by the express terms of his deed. This is the general doctrine and is clearly' recognized by the authorities. Washburn on Easements and Servitudes (3d Ed.) § 23, p. 57, says that it is only in the silence of the parties that an implied understanding and agreement, such as plaintiff insists upon here, arises. In Gould on Waters (2d Ed.) § 354, pp. 635, 636, the learned author in treating of the doctrine says: "It is, however, a matter of contract depending entirely upon the construction of the conveyance, and the above rules are applicable, according to the character, state, and use of the premises at the time of the grant, only where the intention of the parties in this respect is not expressed in terms." In Scott v. Beutel, 23 Grat. 1, and Hardy v. McCullough et al., 23 Grat. 251, the Supreme Court of Virginia explicitly and clearly states that the doctrine does not obtain where the intention of the parties is expressed in terms, and in the latter case said: "When not thus expressed, the construction will be controlled by the use and condition of the property at the time of sale, and certain implications and presumptions of law arising thereon. But these implications or presumptions will only be applied in the absence of an express contract on the subject between the parties. Where there is such contract, the case must be governed by it 'upon the ground of convention, between those who have a disposing power.'' To apply the law thus laid down to the facts of this case, we have here a deed in which the parties, by express contract, have said what particular water rights shall pass to, and in connection with the grant of, the several parcels of land. The grantee, therefore, takes only such water rights as are by the express terms of the contract of conveyance described. The intention of the parties being expressed, no implication as to other water rights arises. Plaintiff already is in the enjoyment of the right belonging to his two 20-acre tracts, and he is entitled to no more. As to the prac poison, the people proved by a witness that ac- Mrs. Cook and her immediate grantees placed | 2. CRIMINAL LAW (8 534*) - CONFESSION upon her deed to them and that theretofore CONCLUSIVENESS. made by her in the manner of use of water, we observe that nothing is to be taken from the method of use made by Mrs. Cook at the time of her ownership. Unity of ownership and possession of all the lands and rights was then in her. There is nothing in the evidence to show that after her conveyance to her daughters any of them made any use, under claim of right, of any other water right than that specifically conveyed to them, or that she recognized any such claim. Besides, if the daughters did not, as between themselves, rigidly adhere to the apportionment of water which their deed made, when the two through whom plaintiff deraigns title conveyed their lands, they, limited to their respective parcels, sold a specific water right. Hence all the evidence as to previous method of use was immaterial. Then, too, the construction put upon a contract by parties thereto is important only in cases where there is doubt or ambiguity in the express language of the contract. There is no uncertainty whatever in the language of the deed by which these water rights passed. 3. CRIMINAL LAW (8_1153*) — APPEAL — DISCRETION OF TRIAL COURT-Order of Proof. While ordinarily evidence in chief on behalf of the people should be offered when their case is made out, the trial judge is vested with which is not subject to review, unless abused to a discretion in determining the order of proof the prejudice of accused. The additional point made by plaintiff that even if he acquired by grant no water rights other than those described in his deed, he has acquired them as a result of an independent appropriation finds no support in the evidence. Such a claim, under the facts, is so devoid of merit that we decline to enter upon a discussion of it. In thus disposing of the case we must not be understood as upholding the right of plaintiff, under his complaint, to have adjudicated to him water rights in addition to those covered by the express language of his deed. Without deciding on the sufficiency of the complaint in that particular, we content ourselves by saying that plaintiff is not entitled to a recovery, under the undisputed evidence, assuming that his pleading entitles him thereto if the essential facts to a recovery were present. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066; Dec. Dig. § 1153.*] 4. CRIMINAL LAW (§ 684*) - RECEPTION OF EVIDENCE-Order of PROOF. Admitting in rebuttal testimony of a witness that accused confessed to the crime charged, admissible in chief in connection with the fessed, was not ground for reversal in the abtestimony of another witness that accused consence of a showing that accused was prejudiced by the order of proof. [Ed. Note.--For other cases, see Criminal Law, Cent. Dig. § 1618; Dec. Dig. § 684.*] 5. WITNESSES (8 388*) FOUNDATION. IMPEACHMENT To impeach a witness not a party by proof of contradictory statements, a foundation must be laid by asking the witness whether he made the contradictory statement relied on, and directing his attention to the time, place, and person to whom or in whose presence the statement was made, with such certainty that the witness will understand the matter about which he is being interrogated, and not be misled. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1233-1242; Dec. Dig. & 388.*] 6. WITNESSES (§ 388*) FOUNDATION. IMPEACHMENT Where a witness for the prosecution was asked on cross-examination whether on one of ed and in company with him had made a contwo days he was on the farm of a person namtradictory statement, sufficiently directed the witness' attention to the time, place, and person to whom the contradictory statement relied on was made to authorize the impeachment of the witness by proof of such contradictory state The judgment below, which was in favor ment. of defendants, is affirmed. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1233-1242; Dec. Dig. § 388.*] 7. CRIMINAL LAW (§ 371*)-PROOF OF OTHER OFFENSES-ADMISSIBILITY. The general rule is that evidence is not admissible that accused has committed another crime than that for which he is on trial; but, where the evidence of another offense proves an element of the one for which he is on trial or the motive for committing the acts constituting the crime charged, and such independent offenses in connection with the one charged were committed by accused for some particular purpose which he intended to accomplish, such evi dence is admissible. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. § 371.*] 8. CRIMINAL LAW (§ 783*)-TRIAL-INSTRUCTIONS PURPOSE OF EVIDENCE. The district attorney should state the purpose for which evidence of another offense ic For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes offered, and the trial judge, when requested by accused, should limit consideration thereof by the jury to the purpose for which it was admitted. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1734, 1735, 1872-1876; Dec. Dig. § 783.*] a term in the penitentiary. As evidence in chief the people introduced the testimony of one Watson, who testified the defendant had confessed to him that he poisoned the horse in question; that the poison used was cyanide of potassium; that he had obtained it 9. CRIMINAL Law (§ 785*)—TRIAL-INSTRUC-from the Colorado Chemical & Spray Manu TIONS. The giving of instructions as to the caution to be observed in weighing testimony of a private detective of persons employed to find evidence is based on rules of practice rather than of law, and rests largely in the discretion of the trial judge. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1774-1781, 1889-1894; Dec. Dig. § 785.*] 10. CRIMINAL LAW (§ 822*)—TRIAL-INSTRUCTIONS CONSTRUCTION. Instructions must be considered as a whole. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1990-1995, 3158; Dec. Dig. § 822.*] 11. CRIMINAL LAW (8 781*)-TRIAL-INSTRUCTIONS CONFESSIONS. Where the court at the instance of accus sed instructed the jury that a verdict of guilty facturing Company; and that he had signed a check to pay for it. The defendant, as a witness in his own behalf, denied having made this confession. Griffith, manager of this company, was then called as a witness for the accused, and asked whether or not his company, in the transaction of its business, used cyanide of potassium. To this question an objection was interposed, and sustained. He was then interrogated as to whether or not he ever had this poison in his laboratory or in the establishment of which he was manager. An objection to this question was also interposed and sustained. A confession in a criminal case, unless it is an admission by plea, is merely evidence to be considered by the jury in determining the guilt of the accused. For this reason evidence that a defendant had confessed the crime for which he is being tried may be rebutted the same as any other. Hence it is competent for him to show by independent facts that any statement claimed to have been made by him in the confession could not have been true. 12 Cyc. 484; 6 Enc. 586; Commonwealth v. Howe, 9 Gray (Mass.) 12. CRIMINAL LAW (§ 829*)-TRIAL-INSTRUC-110; Commonwealth v. Howe, 2 Allen (Mass.) TIONS REFUSAL TO GIVE INSTRUCTIONS EMBODIED IN THOSE GIVEN. It is not error to refuse an instruction which is substantially embodied in those given. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] 13. ANIMALS (§ 45*) - KILLING ANIMALS PUNISHMENT-STATUTES. One convicted of maliciously killing by poison a horse of another worth $125 is properly sentenced to the penitentiary for not less than three nor more than four years, under 1 Mills' Ann. St. § 1409, punishing the malicious killing of any horse of another, notwithstanding section 1424 punishing the malicious injury of animals; the latter section relating to acts committed for the purpose of hindering or preventing the herding of animals in the vicinity where the prohibited acts are committed. [Ed. Note. For other cases, see Animals, Dec. Dig. $ 45.*] 153; People v. Fox, 50 Hun, 604, 3 N. Y. Supp. 359; State v. Blodgett (Or.) 92 Pac. 820; 3 Enc. of Evidence, 353. In Commonwealth v. Howe, 9 Gray (Mass.) 110, the defendant was indicted for breaking and entering a shop and stealing shoe stock therein. The people produced a witness who testified to confessions made to him by the defendant. According to this confession, the defendant had told the witness that he and one George Parmenter broke into and entered the shop and stole the stock, as alleged in the indictment, and that the defendant sold his share of the stock so stolen to one Emory Hobbs. The defendant then offered to show that Parmenter did not break into the shop and aid in stealing the stock, and that Howe did not sell to Cobb any por Error to District Court, Mesa County; tion of the stock or any other shoe stock. Sprigg Shackleford, Judge. Chester E. Jaynes was convicted of killing The trial court ruled that this testimony was incompetent. The Supreme Court in by poison a horse of another, and he brings passing upon this ruling stated: "The con error. Reversed and remanded. Logan & Greer and Wheeler & Weiser, for plaintiff in error. Wm. H. Dickson, Atty. Gen., and S. H. Thompson, Jr., Asst. Atty. Gen., for the People. GABBERT, J. Plaintiff in error, defendant below, was convicted of killing by poison a horse of the value of $125, the property of one O. W. Hoskins, and sentenced to fessions of which evidence was given embraced in substance three facts: First, that the defendant broke and entered a shop; second, that George Parmenter was with him in so breaking and entering; third, that the defendant sold the stolen stock to Emory Hobbs. The defendant offered evidence to show that the confessions were not true; that the facts did not occur as in the confessions stated. This evidence was rejected. upon his confession had he been permitted to introduce testimony tending to establish the fact that the four persons named in his confession were not with him at the time the crime was committed. In the case at bar the defendant had denied the confession attributed to him by the testimony of Watson. Whether or not he had made the confession was the important question. Watson testified that the defendant told him he had procured the poison used from the company of which Griffith was the manager. If the defendant had been permitted to show facts from which it could be inferred that his alleged statement to Watson as to where he had secured the poison was not true, and could not be true, that was a circumstance proper for the jury to consider in determining whether or not he had confessed the crime for which he was being tried. The court erred in sustaining the objections to the questions propounded to the witness Griffith. The confession above referred to is said to have been made on the 8th of May, 1906. After the conclusion of the testimony on behalf of the defendant, who, as above stated, denied having made the confession in question, the people were permitted, over his objection, to introduce the testimony of one Hyatt, who testified regarding a confession of the defendant made three days later. Error is assigned to this ruling upon the ground that the testimony of Hyatt was not admissible for the purpose of rebutting any testimony given on behalf of the defendant. We think it should have been admitted, the degree of discredit which would be cast that the defendant was not to be concluded by any confessions made, much less by the statements of witnesses that confessions had been made. It was competent to show that the facts could not have taken place as alleged or did not." The evidence further discloses that at the time of the alleged confession of the defendant he was intoxicated, and the court concludes by saying: "Especially is this the case where there is evidence leaving it doubtful whether the defendant was in a condition to understand what he was confessing." This condition of the defendant, however, could not change the principle upon which it was held admissible, namely, that it was competent for the purpose of showing that the defendant had not made the statement attributed to him by the confession. In Commonwealth v. Howe, 2 Allen (Mass.) 153, the defendant was indicted for larceny. His confession, which was introduced, tended to prove that, soon after the larceny was committed, he was in possession of a part of the stolen property, and gave the same to his mother. He offered to prove by his mother that she never had the stolen property. This evidence was rejected, and the Supreme Court held that it was competent testimony, and should have been admitted because it tended to disprove that he had confessed the crime. In People v. Fox, supra, the defendant made an affidavit that he and four others committed the robbery for which he was on trial by entering the house of the victim and binding him. The defendant offered to prove that none of the four persons mentioned in his affidavit were at the place of the crime at the time therein stated. This was rejected. In considering this ruling the court said: "Now, it is quite correct to say that the confession may be false in every other particular, and yet it may be true that defendant participated in the robbery, but the question here is whether the defendant may not give evidence tending to disprove an alleged fact of which the people have given proof against him. Certainly, when one side gives evidence tending to prove a fact, the other side may give evidence to the contrary. Conceding, but not deciding, that it was not proper as rebuttal, it was competent as evidence in chief. Ordinarily evidence in chief on behalf of the people should be offered when the case on their behalf is being made; but the trial judge is vested with sound discretion in determining the order of proof, and this discretion is not subject to review unless it appears to have been abused to the prejudice of the defendant. No showing of prejudice appears. The defendant sought to impeach the testimony of the witness Watson by testimony of another witness (Smith) tending to prove *that Watson had made statements to him to the effect that the prosecution was “a put up job." This testimony was objected to upon the ground that the proper foundation had not been laid. In order to impeach a witness in this way who is not a party to the action, the proper foundation must be laid. Nutter v. O'Donnell, 6 Colo. 253; Ryan v. People, Mullin v. McKim, For this purpose it is necessary to ask the witness whom it is sought to impeach if he made the statement which it is claimed he did, and, in order that he may have a fair opportunity to understand all the circumstances and explain such statement, his attention must be directed to the time, place, and person to whom or in whose presence the statement was made. If the defendant had made a confession that |