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and $30,000, which consists principally of realty in the city of Denver. The statute under which the proceeding was had is as follows: "Whenever any reputable person shall file with the county court * * a complaint, duly verified, and shall allege therein that any person in such county is a lunatic or an insane person, and is so distracted in mind as to render such person incapable of properly and safely attending to his affairs or managing his estate, the court, if satisfied that there is a good cause for the exercise of its jurisdiction, shall thereupon order a jury * to be summoned to inquire into such facts. * If it shall be alleged in said complaint and proved to the satisfaction of the court that said lunatic or insane person has personal or real estate, and if the jury shall return in their verdict that such person is so insane or distracted in mind as to render him or her incapable of managing his or her estate, it shall be the duty of said county court to appoint some fit person to be the conservator of said estate." Mills' Ann. St. § 2935, amended by Laws 1893, p. 331. Over the objection of plaintiff in error, several witnesses, both professional and nonprofessional, were asked to give an opinion regarding his capability of properly or carefully managing his business affairs; the answer in each instance being, in the opinion of the witness, that he was incapable.

E. T. Wells, M. F. Taylor, and R. T. McNeal, for plaintiff in error. George A. Smith, for defendant in error. Andrew W. Gillette, amicus curiæ.

GABBERT, J. (after stating the facts). It is suggested by counsel amicus curiæ that, the plaintiff in error having been adjudged incapable of managing his own affairs, this proceeding should be dismissed, for the reason that he cannot now prosecute a cause, except through the intervention of a guardian or next friend; or, if this is not the correct view, we should require him to be brought into our presence for the purpose of ascertaining his mental condition, and capability of electing to prosecute the writ of error in this case. The constitution provides (article 6, § 23) that writs of error shall lie from the supreme court to every final judgment of the county court. Ordinarily, it is true that one adjudged non compos mentis can only act through a recognized representative; but this is not the case where the very object of the action is to determine the legality of the judgment adjudging him incapable of managing his own affairs. In the original proceeding he is entitled to be heard, appear by counsel, and produce witnesses, and, although the judgment of the trial court may be that the management of his estate should be taken out of his hands, he is entitled to be heard touching the validity of such proceedings. In re Moss (Cal.)

53 Pac. 357. So long as the action for that purpose is undisposed of, the judgment of the trial court regarding his mental capacity is not conclusive. Cuneo v. Bessoni, 63 Ind. 524.

The sole province of this court in a proceeding of this character is to investigate the regularity of the proceedings which plaintiff in error seeks to have reviewed. If they are so in all respects, and the evidence is sufficient to support the judgment rendered, we cannot inquire into the question of the sanity of plaintiff in error. If prejudicial error exists, and there appears to be sufficient to warrant an inquest, the case must be remanded for a new trial, for the purpose of determining the sanity of the plaintiff in error in the manner which the statute provided.

Counsel for plaintiff in error contend that the statute under which this proceeding was instituted in the court below only applies to those entirely bereft of reason, and, if it is not susceptible of this construction, it is unconstitutional, because it violates natural rights. The object of the statute is to protect those whose mental faculties are affected to such a degree as to render them incapable of properly and safely managing their business affairs. The language employed indicates this purpose. It says, in effect, if it appears that any person is so distracted in mind as to render him incapable of safely and properly managing his estate, and a jury shall so find, a conservator shall be appointed. Absolute insanity is not the only test. The main object of the statute is the protection of the property of those mentally afflicted. Inquiry must be made as to the extent of such mental infirmity. If it exists in such a degree, and is of such character, that the person so afflicted is for that reason unable to act intelligently with respect to his business affairs, or is affected with that imbecility of mind not strictly insanity, but to such an extent that he is deprived of the mental power to act in a proper and provident manner in the management of his property interests, the statute is satisfied. Ridgeway v. Darwin, 8 Ves. 65; McElroy's Case, 6 Watts & S. 451; Calderon v. Martin, 50 La. Ann. 1153, 23 South. 909;' Nailor's Children v. Nailor, 4 Dana, 339; Gray v. Obear, 59 Ga. 675; McCammon v. Cunningham, 108 Ind. 545, 9 N. E. 455; Fiscus v. Turner (Ind. Sup.) 24 N. E. 662; In re Barker, 2 Johns. Ch. 232. On the other hand, although the mind may not be sound, "if there be capacity to manage, as the result of consecutive reasoning, although the management might not be such as intellectual vigor and skill might approve," the party retaining the possession of his mental faculties to this extent would not come within the purview of the statute. Com. v. Schneider, 59 Pa. St. 328.

The many authorities cited by counsel for plaintiff in error to the effect that partial

unsoundness of mind on the part of those executing deeds, wills, and contracts would not avoid such instruments, provided it appeared at the time of execution that the party was possessed of sufficient mental ability to comprehend in a reasonable manner the nature and effect of the transaction, does not militate against our construction of the statute in question, but is in harmony with its spirit, which recognizes that the degree of insanity necessary to warrant the appointment of a conservator must be such as incapacitates from properly and safely managing ordinary business affairs. Neither is our construction a violation of any natural or constitutional rights. Our constitution provides that all persons have certain natural and inalienable rights, among which may be reckoned the right of acquiring, possessing, and protecting property. It also provides that the enumeration of rights shall not be construed to deny, impair, or disparage others retained by the people. Sections 3, 28, art. 2, Const. It falls to the state to take care of those who, by reason of mental incapacity, cannot take care of themselves. Ex parte Cranmer, 12 Ves. 445.

In the absence of any statutory provision on the subject, a court of chancery, under the rules of common law, would undoubtedly have authority to protect the estate of those who, by reason of mental infirmities, were unable to do so, and, to accomplish this end, could appoint a proper person for that purpose. The vital question which the jury was required to determine, if it appeared that the mind of plaintiff in error was affected, was whether or not it was deranged to such a degree that he was incapacitated from safely and properly managing his estate. When the question at issue involves peculiar skill or the knowledge of a particular science, in which persons instructed by study or experience may be supposed to have more skill or knowledge than the average person, the opinion of an expert thereon may be received. Where the question at issue is such that it would be impossible for a witness to state all the facts or portray all those matters which created an impression upon his mind, his opinion may be taken. These two rules arise from the necessity of the case. On the other hand, when the facts can be given the jury from which a particular inference can be drawn, which is the one to be determined, and concerning which persons of average ordinary intelligence are capable and competent of determining for themselves, opinion evidence is not admissible. Mining Co. v. Broderick, 25 Colo. 16, 53 Pac. 169; 3 Tayl. Ev. §§ 1416, 1417, 1419; Ferguson v. Hubbell, 97 N. Y. 507; Graham v. Pennsylvania Co., 139 Pa. St. 149, 21 Atl. 151; Stumore v. Shaw, 68 Md. 11, 11 Atl. 360; Hamrick v. State (Ind. Sup.) 34 N. E. 3.

Applying these rules, it is manifest that the opinions of the witnesses regarding the incapability of plaintiff in error to manage

and control his own business affairs should have been excluded. Those who had seen and conversed with him could properly give their opinion on the question of his insanity, but the vital one, i. e. the degree of his mental incapacity on that account, and the extent to which he may have been incapacitated thereby from managing his business, the jury should have determined from all the evidence on the subject. It was not a question which required peculiar skill or knowledge to comprehend. It was one which men of ordinary, average intelligence, after being acquainted with the hallucinations, if any, of plaintiff in error, his acts and thoughts prompted thereby, could ascertain for themselves, based upon their own experience and observations. In principle, the important question for the jury to determine was the same as in cases where the capacity of a testator to make a will, or of a grantor to execute a deed, is in issue, and the great weight of modern authority in such cases, in the absence of any statutory provision, is that such capacity is not properly the subject of opinion evidence, but must be determined from the probative facts bearing thereon.

Other errors are assigned and argued, which we do not deem it necessary to notice, further than to indicate that, within reasonable limits, a witness may be cross-examined for the purpose of showing his possible motive, bias, or interest in a case which might have some influence upon his statements, or prompt his action; that, in a case of this character, the mental, and not the physical, condition of the person for whom a conservator is requested is the main feature, and that the latter can only be considered in so far as it may affect the former; that, in determining the degree of incapability of such person, the character of his business and its extent should be taken into consideration. A party might be incapacitated by reason of mental disturbances from properly and safely attending to a complicated business, but capable of managing one which was not. Although in a degree mentally afflicted, his disposition to husband or waste his estate should also be considered. It is not the province of the trial judge to examine witnesses further than to ascertain if he has a correct understanding of what they may have stated. All things being equal, the court should, so far as consonant with duty, select a conservator agreeable to the wishes of the ward. Especially is this true if the latter is not so insane that he cannot exercise a sensible opinion upon that question. Allis v. Morton, 4 Gray, 63.

Counsel upon both sides have urged with considerable warmth the respective merits of this case. As already indicated, we cannot determine the mental capacity of the plaintiff in error. The subject is controverted. It must be determined by the statutory method, but in so doing the rules of evi

dence must be observed. The alleged mental condition of plaintiff in error, and other unfortunates of like character which the statute is designed to protect, demands that great care should be exercised by the courts in determining whether the control of their estate should be taken out of their hands or not. The judgment of the county court is reversed, and the cause remanded for further proceedings. Reversed and remanded.

(28 Colo. 187)

BUCKERS IRR., MILL. & IMP. CO. et al. v. PLATTE VALLEY IRR. CO. (Supreme Court of Colorado. Dec. 22, 1900.) WATERS AND WATER COURSES JUDGMENTS— RES JUDICATA-APPEAL.

1. Where a suit to restrain a water company from using the water of a lake is met by the defense that the defendant has largely increased the flow of water into the lake, and a decree is rendered for defendant, but it is found that the stream from the lake is a natural water course, a decision reversing such decree on the ground that defendant was only entitled to a part of the water, and ordering a new trial to determine the amount thereof, is not an adjudication of the rights to the waters collected in the lake, which will bar a subsequent suit between the parties to determine the rights thereto.

2. Where suit is brought to enjoin a water company from using the waters of a certain lake, as intercepting the water flowing into a certain stream, and it is denied that the lake is tributary to the stream, it is reversible error to rule that the burden of showing that the lake is not tributary to the stream is on defendant.

3. Where a supplementary answer is filed on the retrial of a case, asking for a modification of a former decree, to permit the defendant to use a certain water-feed pipe, which was denied by the former decree, and the right to have such a modification is not denied, the decree should affirmatively state the granting of such relief.

Appeal from district court, Weld county. Injunction by the Platte Valley Irrigation Company against the Buckers Irrigation, Milling & Improvement Company and the Beaver Lake Irrigation, Milling & Improvement Company. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Joseph W. Taylor and Hayt & Dawson, for appellants. J. W. McCreery, for appellee.

GABBERT, J. This action was commenced by appellee, as plaintiff, against appellants, as defendants, to restrain the latter from diverting water from the South Platte river by means of a ditch known as "Feeder No. 1," and its extension, and also to restrain them from intercepting water flowing from Beaver Lake and adjacent swamps through a ditch designated "Beaver Lake," the stream from which sources, it was averred, was a tributary of this river. As a defense to the claim of plaintiff to the waters of the stream flowing from Beaver Lake and vicinity, the appellants (1) denied that such stream was a tributary of the river; (2) averred that the waters derived from this 63 P.-20

source were obtained by draining lands adjacent to Beaver Lake, which were in no sense a source of supply of the river or any of its tributaries. The result of the first trial was a judgment in favor of appellants for the waters obtained by means of the ditch designated as "Beaver Lake," which was constructed from the point where it intersected Feeder No. 1 to Beaver Lake and beyond. The court gave them this relief upon the ground that by their efforts and expenditures they had drained lands lying adjacent to Beaver Lake, and thereby largely increased the water supply flowing from that source, but also found that the stream from the lake was a natural water course and tributary of the river. From this judgment the plaintiff appealed to this court, where, upon consideration of this branch of the case, it was held that the court erred in decreeing the present appellants all the water from this source, because they were only entitled to the water flowing from Beaver Lake to the extent they had increased its average continuous flow. For this reason the judgment was reversed and the cause remanded for further proceedings. Platte Val. Irr. Co. v. Buckers Irr., Mill. & Imp. Co., 25 Colo. 77, 53 Pac. 334. On the second trial of the cause the issues between the parties with reference to the water flowing from Beaver Lake, as also its increase by virtue of the efforts of appellants, were the same as before. With respect to the rights of appellants to maintain the ditch known as "Feeder No. 1," they filed a supplemental answer, in which it was averred that, by reason of natural physical changes in the bed of the river, it became necessary for them to maintain that portion of the ditch for the purpose of supplying their main ditch directly from the river. It is unnecessary to state the facts upon which appellee bases its right primarily to maintain this action, because these matters were disposed of in the former judgment of this court. On the second trial the court found the issues with reference to the waters collected by Beaver Lake ditch in favor of the plaintiff, and decreed that defendants were not entitled to the use of any of the waters from this source, as against the plaintiff. From this judgment the defendants appeal. There is also involved, by reason of the judgment of the lower court, the right of appellants to maintain Feeder No. 1, which will be noticed later.

At the outset there is presented this question: What was the effect of the order in our former opinion, remanding the cause for further proceedings, on that branch of the case relating to the waters of the stream flowing or alleged to flow from Beaver Lake? Our answer is that it remanded the case for a new trial on this question, and that no finding of fact made by the lower court, or which this court said was supported by the evidence, was res adjudicata of any fact upon which the rights of the parties to the

waters collected by Beaver Lake ditch depended. The issues made by the pleadings upon this branch of the case were plain and simple. The appellee averred that the stream flowing from Beaver Lake was a tributary of the Platte river. The appellants denied this averment, and further claimed the right to divert the waters of this stream to the extent they had increased its natural flow. Under these issues it therefore became incumbent upon the appellee, in order to show it was entitled to relief, to establish that the stream from Beaver Lake was a tributary of the river. To defeat this claim, defendants were entitled, under the pleadings, to make two defenses: First, that it was not such tributary; second, that they had added to its volume waters which were not theretofore wont to flow down the natural stream. It appears from the record that the trial court ruled that the burden of proof was upon the appellants, in other words, they must show that the stream from Beaver Lake was not a tributary of the river. This was certainly erroneous, because the very ground upon which appellee based its right to relief was that appellants were diverting the waters of a natural stream and tributary of the river, to its injury. Unless they established this fact in the first instance, their action must fail. It is not every error, however, which will result in reversing a cause upon review. The error must be prejudicial, and an error is presumed to be prejudicial to the party against whom it is made, unless it affirmatively appears that it was harmless. George v. Railroad Co., 53 Iowa, 503, 5 N. W. 615; Machine Co. v. Jacobson, 73 Iowa, 546, 35 N. W. 627; Jackson v. Water Co., 14 Cal. 19; Du Bois v. Perkins, 21 Or. 189, 27 Pac. 1044; Clark v. Fairley, 30 Mo. App. 335; State v. Security Bank of Clark, 2 S. D. 538, 51 N. W. 337; Hayne, New Trials & App. § 287; 2 Enc. Pl. & Prac. 532. The evidence upon the question as to whether or not this stream was a tributary of the river was conflicting. If the court had adopted the proper theory as to where the burden of proof rested upon this issue, and had found, as it did, that the water flowing from Beaver Lake was a natural stream and a tributary of the river, perhaps the evidence is sufficient to sustain this finding. But, as it was conflicting on the subject, we are not able to say that the error of the trial court in placing upon appellants the burden it did was not prejudicial; for, with this burden placed upon appellee, it might have found that the preponderance of the evidence on this subject was with appellants, or that appellee had failed to establish as a fact that which it was incumbent upon it to do in order to make a prima facie case. For this error the judgment must be reversed, and the cause remanded for a new trial.

We are urged, however, to determine the rights of the parties to the water claimed to have been collected by appellants through

It is

and by means of Beaver Lake ditch. claimed on the part of appellee that this ditch is constructed from the point where it intersects Feeder No. 1 to Beaver Lake practically upon the line of the bed of a stream flowing from that source, designated "Beaver Brook," and that the water so collected in part is from the source of supply of this stream, as also from the stream itself. It being denied by appellants that the latter is a tributary of the river, and in fact claimed that there is no such stream, and that the water collected is not from any natural supply, it is manifest from the issues between the parties that their rights to this water would be dependent in part, at least, upon the fact as to whether what is termed "Beaver Brook" is a natural stream and tributary of the river or not, and from whence the water flowing in the ditch is collected. Therefore any opinion we might express on this proposition would necessarily be in the alternative. As the question presented is of great importance, and far-reaching in its effect, we do not deem it wise to express our views thereon until squarely presented for adjudication, and for this reason we must decline to pass upon it at this time.

In the former opinion the judgment of the lower court rendered at the first trial, directing that Feeder No. 1 be abated, was affirmed. This judgment was sustained for the reason that this portion of the ditch of appellants drew water by percolation directly from the river. By a supplemental answer which they filed when the cause was remanded for a new trial, appellants aver that a change in the channel has occurred, which makes it necessary for them to establish their head gate to the Buckers ditch at a point further up the stream, and for this reason they desire a modification of the former judgment, by which they will be permitted to utilize Feeder No. 1 for the purpose of diverting the water to supply their Buckers ditch. It is also claimed upon their part, and so stated in the answer, that this feeder will not draw any water from the river, except through its head gate. This answer was permitted to be filed, and issue was joined thereon. After all evidence was introduced, the trial judge announced that it was unnecessary to argue the matters set up in the supplemental answer, as there was no controversy about them. Evidently the court was of the opinion that appellants were entitled to a modification of the original decree in so far as it affected Feeder No. 1. It is claimed by counsel for appellants that in the decree finally rendered the court did not grant such relief. Counsel for appellee contends that it did. From an examination of the decree, we do not think it does. The relief to which appellants were entitled by reason of the facts set up in the supplemental answer was affirmative in its nature. It contemplated the modification of the original decree, by which they would be permitted to maintain Feeder No.

1, and that portion of the Beaver Lake ditch! from where it intersected this feeder down to the point where connection was made with the Buckers ditch. As appellants were clearly entitled to this relief, it should have been granted, and the decree should have affirmatively so stated. The decree further

provided that appellants should so maintain that portion of their ditch which has been designated as "Feeder No. 1," and the part of Beaver Lake ditch thence down to the intersection with the main Buckers ditch, as not to interfere with the water flowing down Beaver brook. Whether or not this is justified will depend upon the rights of the parties to the water in dispute. The judgment of the district court is reversed, and the cause remanded, with directions to enter a decree giving appellants the relief demanded by their supplemental answer, and for a new trial on the issues made by the pleadings with respect to the rights of the parties to the water flowing in Beaver Lake ditch above the point where it intersects Feeder No. 1, and upon the final determination direct, if necessary, how that part of the ditch of appellants between the river and the Buckers ditch which intercepts the waters from Beaver brook shall be maintained with respect to the flow of the water from that source. Reversed and remanded.

(28 Colo. 126)

JONES v. VAN HORN et al. (Supreme Court of Colorado. Dec. 17, 1900.) REFERENCE-NECESSITY FOR REVIEW OF TESTIMONY BY COURT-APPEAL AND

ERROR-REVIEW.

1. Civ. Code, §§ 212-214, provide that the clerk of court shall enter judgment on a referee's report, in the same manner as if the action had been tried by the court, after five days' notice to the parties of the filing of such report, unless objections are interposed within that time, in which case the court may grant a new trial, or modify the findings of the referee and enter such judgment as is proper. A reference was ordered for examination of plaintiff's report as administrator. Plaintiff filed objections to the sufficiency of the evidence to sustain the referee's findings, within the proper time, which the court overruled, without an examination of the testimony taken before the referee. Held, that a judgment for defendants, based on the referee's report, would be reversed, since the court had no authority to pass on the objections without a review of the testimony and findings.

2. An objection that the evidence taken by a referee on which a judgment is based is not shown to have been wholly incorporated in the bill of exceptions will not be noticed on appeal, if, through the court's error in not examining the testimony taken by the referee, no findings were made that can be reviewed.

ty.

Appeal from district court, Arapahoe coun

Action by James A. Jones, administrator, against M. A. De L. Van Horn and others. From a judgment for defendants, plaintiff appeals. Reversed.

H. P. Bennett, Jr., and W. C. Kingsley, for appellant. Charles J. Hughes, Jr., and Branch H. Giles, for appellees.

GABBERT, J. The issue between the parties in the court below was raised by exceptions filed by appellant to the report of the referee, as administrator of the estate of Isaac Cooper, deceased. A reference was ordered, and the referee directed to examine the accounts, take testimony, and report the facts on items in report of administrator which were contested, together with the testimony taken. On the filing of the report of the referee, the administrator objected and excepted thereto, which, so far as necessary to notice, were to the effect that the findings of fact and conclusions of law that the administrator was not entitled to item charged for his services rendered the estate were against the evidence, and that the finding that the sum paid by the administrator to certain attorneys was excessive was not supported by the evidence. We notice these two for the purpose of showing that the exceptions were in the proper form. They appear to have been filed in apt time. The record discloses that the court passed upon these exceptions, and overruled them, without examining the testimony taken before the referee, and upon which he based his report.

When

Our Civil Code provides that, when the reference is for all purposes, the clerk shall enter judgment upon the referee's report in the same manner as if the action had been tried by the court, after five days' notice to the parties to the action of the filing of such report, unless objections thereto are interposed within that time, and that, if such objections are filed, the court may grant a new trial, or may modify the findings of the referee, and enter judgment accordingly, when it is manifest from the evidence what the findings or judgment should be. Sections 212–214, Civ. Code. proper exceptions are filed, the findings of the referee do not become the findings of the court, unless approved by the court. If the sufficiency of the evidence to sustain the findings of the referee is challenged, the court cannot determine this question without an examination of the testimony taken and reported by the referee. The object of permitting exceptions to be filed is to give the party filing them an opportunity to point out to the court wherein the report of the referee is erroneous. The authority of the court thus invoked cannot be exercised capriciously. It cannot act intelligently without an examination of the questions raised by the exceptions, and, when they challenge the sufficiency of the evidence to sustain the findings of the referee, it is both the province and duty of the court to examine the testimony, and review the conclusions of the former. Failing to do this,