quired the following described tract and parcel of land, to wit: 'Beginning at a point on the dividing line between the northwest quarter and the southwest quarter of sec tion 4, township 4 south, of range 68 west, three hundred and twenty-six feet east of the northwest corner of said southwest quarter; thence east, on said dividing line, 281.5 feet, more or less, to a point 710 feet west from the northeast corner of the northwest quarter of said southwest quarter; thence, at right angles with said dividing line, three hundred and thirty feet; thence east 345.5 feet; thence south 208 feet; thence west 627 feet, to a point 538 feet south of the place of beginning; thence north 538 feet, to the place of beginning,-containing 5.12 acres, more or less.' That said tract of land lies immediately east and adjacent to that part of the above-described premises owned by the plaintiff, known as the 'First Addition to Jerome Park,' and immediately contiguous to block 7 in such addition. Plain. tiff further says that said defendants have excavated on said premises acquired by them as aforesaid an excavation from four to seven feet in depth below the natural surface of the soil, and extending over almost the whole of said tract of 5.12 acres, and have thrown up embankments about such excavation three to five feet above the natural surface of the soil. Plaintiff further says that on or about the 22d day of No. vember, 1888, the defendants turned a large stream of water into the said excavation, and have ever since continued to flow the same. That there is now running into said excavation a rapid stream of water therein, diverted by said defendants, which is not less than three inches in depth and four feet in width, and that the defendants have maintained such stream, or a much larger stream, continuously since the same was dìverted into said excavation, and that the defendants have thereby made a pond of water some four or five acres in extent, and from three to seven feet in depth. Plaintiff further says that the water thus diverted into said excavation by defendants escapes therefrom upon the lands owned by the plaintiff, as above described, almost immediately after the same is diverted, by reason of the loose construction of the said pond and the gravelly character of the soil lying beneath the same; and that, after the pond becomes partially filled, it escapes about as rapidly as it flows into the pond; and that the result thereof has been to flood a large part of the premises owned by the plaintiff. That lots 14 to 33 in block 7 are flooded with water, so that the same stands thereon from six inches to two feet in depth. That a large part of the remainder of plaintiff's premises is so affected by the water percolating through the gravelly soil from the said pond as to fill or flood the cellars of the houses owned by the plaintiff

and his grantees on said premises. Plaintiff further shows that he is the owner of brick houses lately constructed on lot 17 in block 7, and on lot 48 in block 6, and on lot 22 in block 4, in said Jerome Park addition, each of which have brick cellars, which would be water-tight except from the acts of the defendants aforesaid in maintaining the said pond; but that the maintenance of said pond has flooded said cellars, so that the water now stands in depth from six inches to two feet, and it has been impossible for the plaintiff to continue work and complete the said houses on account of the flooding of the same with water as aforesaid. And plaintiff further shows that upon lots 57 and 58 in block 6,55 and 56 in block 6, 59 and 60 in block 6, 8 and 9 in block 4, 15 and 16 in block 5, in said Jerome Park addition, houses are owned and occupied by certain grantees of the plaintiff, and that the cellars connected with said houses have been flooded in the same manner as those owned by the plaintiff, by the action of the defendants, and that the plaintiff is greatly injured thereby, by reason of his interests as a seller of the same, and as the owner of the adjoining property. And plaintiff further shows that he is the owner of a large part of said addition, amounting to over two hundred lots, which are unsold, and the sale of which is greatly injured, if not entirely prevented, by the maintenance of the pond aforesaid. Plaintiff further shows that he has sold from the said Jerome park and the said addition thereto about one hundred and fifty lots, and that the acts of the defendants greatly injure the further sale thereof, and that it will be impossible to sell any of the lots lying under said pond for building purposes if the same is still maintained. Plaintiff further shows that he has requested defendants to abate the said nuisance and discontinue the maintenance of said pond, and that they refuse to do so. And plaintiff says that if the said pond is maintained during the progress of this cause, it will produce great and irrepa rable injury to the plaintiff; that he has already been damaged by the acts of the de fendants in not less than the sum of two thousand dollars; and that, if the same is further maintained, his damages will be of a sort which cannot be estimated, nor can he be adequately compensated by any damages which could be recovered at law. Wherefore plaintiff prays: (1) That a temporary writ of injunction issue out of this court enjoining the said defendants, and each of them, and their and each of their agents, servants, and employes, from further diverting the water into the said excavation above described, and from causing any further water to flow therein during the continuance of this suit. (2) That, upon the final hearing of this cause, said injunction be made perpetual. (3) For the sum of two thousand dollars damages, and for costs of

this suit." A temporary injunction was issued on December 8, 1888, and duly served upon the defendants. On the same day the defendants filed their answer. In this they admit the ownership of the property as alleged. They further admit that at the time of the commencement of the action they were engaged in filling said reservoir with water. All the other allegations of the complaint are specifically denied. As a second and further defense, they allege that the plaintiff consented to the construction of de fendants' reservoir, and that the same was constructed before there were any improvements upon plaintiff's land. Afterwards, by amendment to the original answer, and as a further defense, it was alleged that plaintiff's lands were within the corporate limits of the city of Denver, and that the same had been platted into lots, blocks, streets, and alleys, and the lots sold in violation of the charter of such city. By a further amendment tendered for filing, it is alleged that there are many practicable methods by which seepage may be prevented from defendants' reservoir, among which a number are given in detail; and it is also averred that, since the preliminary injunction was issued, such changes had been made as would effectually prevent the damages complained of. The court, being of opinion that these matters could more properly be embraced in a supplemental pleading than by amendment, refused to permit this amendment to be filed, and the same matters were under protest set forth in a supplemental answer. In this it is stated that, by the construction of a certain drainage ditch and other changes, the reservoir of defendants no longer permits of seepage.

J. Warner Mills, for plaintiffs in error. John L. Jerome, for defendant in error.

HAYT, C. J., (after stating the facts.) It is contended that the facts stated in the complaint are not sufficient to authorize equitable relief. The remedy by injunction was invoked for the purpose of restraining the defendants from running water in a certain reservoir, from whence it was escaping by seepage upon plaintiff's land, flooding his building lots, and filling the cellars of his houses with water, as it is alleged. As a general rule, injunctive relief will not be granted to stay a mere private nuisance, unless it appears that irreparable mischief will result from withholding the process; but where it appears that great and irreparable mischief will result from the wrongs complained of, and that a suit at law will be ineffectual as a protection against future acts of a similar character, the jurisdiction of equity is now firmly established. High, Inj. (3d Ed.) §§ 802, 839. It is urged by appellants that the rule is changed in this state, by reason of the following provision of our statute: "The owners of the reser

voirs shall be liable for all damages arising from leakage or overflow of the waters therefrom or by floods caused by breaking of the embankments of such reservoirs." Mills' Ann. St. § 2272. The foregoing is simply an affirmation of a common-law principle. It was enacted in this state as part of an act with reference to irrigation. In this act the right is given for the construction of reservoirs for certain purposes, and the context indicates, we think, that the paragraph relied upon was inserted as a precautionary measure under the apprehension that, without it, it would be possible to place such a construction upon the act as would relieve owners of reservoirs from liability for leakage and overflow. It does not change the rule concerning injunctive relief. In order to have this effect, the remedy at law must be direct, certain, and adequate. When the remedy is not adequate to a particular exigency, then a court of equity has jurisdiction. The remedy at law in this case is inadequate because the injuries that were being suffered by plaintiff were irreparable, and also for the reason that a suit at law would not prevent the inflicting of like injuries in the future. Story, Eq. Pl. § 473; High, Inj. § 839; Sprague v. Rhodes, 4 R. I. 301.

The writ as issued commanded the defendants to refrain and desist from diverting water into the reservoir. Complaint is made on acount of the scope of the writ. It is claimed that it should have simply enjoined the defendants from running water in the reservoir as then constructed. We do not think this contention of counsel is well taken. The writ did not prevent the defendants from repairing or changing the reservoir so as to prevent the injury to plaintiff complained of, and, whenever the reservoir was so changed, the defendants were at liberty to apply to the court to have the injunction modified or dissolved. They availed themselves of this right from the first, and, from time to time, made changes in the reservoir, and were allowed, under the direction of the court, to experiment by running water into it. While, therefore, the injunction as framed was warranted by the facts, were it otherwise the defendants are not in a position to complain, because they were not injured thereby, having been allowed to make the necessary experiments from time to time, until the reservoir was properly constructed, when the injunction was promptly dissolved.

The refusal to allow facts occurring subsequent to the commencement of the action to be pleaded as an amendment to the original. answer was not error. By an amendment to the Code of Civil Procedure it is provided that, "when facts occurring subsequent to the commencement of an action render it proper, the same may by leave of the court be presented by supplemental pleadings, and issue taken thereon as in case of original plead

ings." Sess. Laws 1889, p. 73. These facts were pleaded in the supplemental answer filed, and were given due weight by the district court. The defendants' rights were in this manner fully. protected, and the statute as to pleading observed.

Plaintiff's premises are situate within the corporate limits of the city of Denver. By an amendment to the city charter in force at the time of the acts complained of, it is provided "that it shall be unlawful for any person or persons to plat or lay out into streets, alleys, blocks, and lots any land within the corporate limits of the city of Denver, and offer the same for sale, either publicly or privately, unless it be platted, and the plat be also accepted by the city council." Sess. Laws 1887, p. 83. The provision is relied upon to defeat this action. If plaintiff's right to the relief sought rested upon the validity of his plat, or a right to sell the lots, there would be force in this contention. Until the premises are platted according to the statute, and accepted by the city, they do not properly constitute an addition to the city, but this does not prevent the occupation or improvement of the premises by the owner or his grantees. It certainly gives the defendants no right to flood the lands with water, and render the same unhealthy, uninhabitable, and worthless. The plaintiff's right to maintain this action is in no way dependent upon the legality of the plat. It could be maintained were the land ranch or acre property.

Upon the final hearing, the court refused to allow defendants to show that the location of their reservoir was in a locality abounding in reservoirs, and utilized for the gathering and storage of ice, and this ruling is assigned for error. The evidence rejected was irrelevant to the issue. It is entirely immaterial whether or not the locality was so used. The defendants could not gain a right to maintain a reservoir, and permit the water to seep therefrom, to the damage of the adjoining lands, by showing that others had constructed reservoirs in the same locality, or that other lands in that vicinity were used for the ice business.

The ruling of the court refusing to allow the defendants to show that the plaintiff might make his cellar water-tight by the use of cement must be upheld. Plaintiff was under no obligation, equitable, legal, or moral, to make his cellar water-tight, to avoid in part the consequences of the wrongful act of defendants. Aside from this, the flooding of the cellars with water was only a part of the injury complained of.

Upon the final hearing, the argument was limited to 45 minutes for each side, and this restriction is assigned for error. The fixing of a limitation upon arguments of counsel is a matter almost entirely within the discre tion of the trial courts, and, unless such discretion has been grossly abused, this court

will not be justified in interfering. The parties, in the court below, presented several applications for the dissolution of the injunction prior to the final hearing, and no doubt the questions involved were freely discussed upon these interlocutory applications, so that a lengthy argument upon the final hearing was not required. Be this as it may, however, we are not prepared to say that the time allowed was not sufficient to fully present the questions at issue. .

The trial court seems to have proceeded with extreme caution in the determination of the issues presented. From time to time, upon application, the defendants were allowed to change the banks of their reservoir, and experiment therewith by turning water into the same. As soon as the court was advised that the reservoir was sufficient to prevent the seepage complained of, the injunction was dissolved. Under these circumstances, we are unable to find that the defendants have any just ground of complaint. The judgment of the district court will therefore be affirmed.

(19 Colo. 122)

MCCLURE et al. v. BOARD OF COM'RS OF LA PLATA COUNTY. (Supreme Court of Colorado. Oct. 30, 1893.) COUNTY TREASURERS · FOLLOWING TRUST FUNDS. 1. A county treasurer, whose bond is conditioned that he shall faithfully perform the duties of his office, pay, according to law, all moneys which shall come into his hands as treasurer, render true account thereof whenever required by the commissioners or by law, and deliver to his successor, or any person authorized by law to receive them, all moneys, books, papers, etc., of his office, and whose statutory duty it is to receive all moneys belonging to the county, and pay them out only on the orders of the board, except where otherwise specially provided by law, is a trustee of an express trust.

2. The mere fact that a county treasurer had died short in his accounts does not conclusively prove a commingling of assets by him, so as to make the county's claim a superior lien on his estate, as against his general creditors. Appeal from district court, La Plata county.

Action by the board of commissioners of La Plata county against T. J. McClure, D. L. Sheets, and John P. Coston, administrators of the estate of John Reid, deceased, to subject said estate to payment of a balance due the county from intestate as county treasurer. Judgment for plaintiff. Defendants appeal. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

On the 5th day of January, A. D. 1892, the board of county commisioners of La Plata county instituted this action against T. J. McClure, D. L. Sheets, and John P. Coston, administrators of the estate of John Reid, deceased, to subject the assets that came into their hands as such administrators to the payment of a balance due to the county

The cash

from their intestate, as county treasurer. The facts upon which appellee predicates its right to this relief are, in substance, as follows: On the 2d day of July, A. D. 1888, John Reid qualified and assumed the office of county treasurer of La Plata county, and held such office until the 5th day of March, A. D. 1890, the day of his death. During such term he collected and received county funds to the amount of $20,000 over and above his disbursements and the amount in the treasury at the time of his death. On the 12th day of March, A. D. 1890, the appellants were appointed and qualified as administrators of his estate, and, as such administrators, took possession and control of all his personal and real estate. and other assets in the office, aggregating the sum of $32,997.97, were turned over to Mr. Bell, the successor in office, by appellants, and the sum of $9,145.75 was afterwards paid to the county by Mrs. Reid, out of life insurance received by her upon the death of her husband. It is claimed by appellee that Reid commingled the county funds with his own, and that the individual assets that came into the hands of the appellants were in part the proceeds of such funds, and are held by them in trust for the county. The court below found the issues in favor of appellee, and decreed that the sum of $10,897.25, with interest from November 5, A. D. 1890, be first paid out of such assets. To reverse this decree, appellants bring this appeal.

George Q. Richmond and J. L. Russell, for appellants. O. S. Galbreath, for 'appellee.

GODDARD, J., (after stating the facts.) The preliminary question to be met at the threshold of our investigation is as to the relationship that a county treasurer holds to the money that comes into his hands by virtue of his office. It is contended by appellee that the relation is that of bailee of the funds, and by appellants, that the relation of debtor and creditor exists between him and the county. Without determining where the weight of authority lies on this question, as there is much conflict between he adjudged. cases, we think that, under the provisions of our statute relating to a county treasurer, the money collected and received by him belongs to the county, and that he holds a fiduciary relationship thereto that constitutes him a bailee, with express and extraordinary liability. The bond he is required to give before entering upon the duties of his office is conditioned that he "shall faithfully and promptly perform the duties of said office, *

* pay, according

to law, all moneys which shall come to his hands as treasurer, and shall render a just and true account thereof, whenever required by said board of commissioners, or by any provision of law, and shall deliver over to

his successor in office, or to any other person authorized by law to receive the same, all moneys, books, papers, and other things appertaining thereto or belonging to his office." Mills' Ann. St. § 886. Section 890 of Mills' Annotated Statutes provides: "It shall be the duty of the county treasurer to receive all moneys belonging to the county, from whatsoever source they may be derived. * * * All moneys received by him for the use of the county shall be paid out by him only on the orders of the board of commissioners, according to law, except where special provision for the payment thereof is or shall be otherwise made by law." It is further provided in section 901 of Mills' Annotated Statutes: "Upon the resignation or removal from office of any county treasurer, all the books and papers belonging to his office, and all moneys in his hands by virtue of his office, shall be delivered to his successor -in office, upon the oath of such preceding treasurer, or in case of his death, upon oath of his executors or administrators," etc. The supreme court of Indiana having announced the doctrine in several cases that a township trustee, in common with a county treasurer, was not a mere bailee, but the owner of the money that came into his hands by virtue of his office, that court distinguished and limited such ownership in Rowley v. Fair, 104 Ind. 189, 3 N. E. Rep. 860, as follows: "But the title of a township trustee in the money for which he is held accountable is only recognized to the extent that is necessary for the better preservation of the various funds which the money represents, and is. in fact, a legal title only in a technical and very limited sense. The equitable title to, and the beneficiary interest in, such money, is in the township, and in that view the money for which the trus tee is liable upon his bond really belongs to the township." It follows that, if the money received by the treasurer by virtue of his office belongs to the county, it constitutes a trust fund, which, if diverted or misappropriated, may be recovered in an action upon his bond, or the county may, if it elect, treat it as a trust fund, and follow it wherever it can be traced. Sauer v. Town of Nevadaville, 14 Colo. 54, 23 Pac. Rep. 87.

It only remains, therefore, to determine from the evidence in the case whether the appellee has established its right to subject the assets that came into the hands of appellants in their representative capacity to the payment of the balance found to be due from their intestate to the county. It is a wellsettled rule that, where property held in trust has been misapplied and diverted from the purpose of such trust, it may be followed wherever it may be traced, and subjected in its new form to the use of the cestui que trust. Bank v. Hummel, 14 Colo. 259, 23 Pac. Rep. 896; Cook v. Tullis, 18 Wall. 332;

Neely v. Rood, 54 Mich. 134, 19 N. W. Rep. 920; Pierce v. Holzer, 65 Mich. 263, 32 N. W. Rep. 431. In the case at bar no evidence was introduced that tended to show in the slightest degree that the money sought to be recovered was invested in any of the property that came into the possession of appellants. On the contrary, evidence was introduced by them that all the property of which their intestate died seised was owned by him prior to July 2, 1888, or was property that he had received in exchange for other property that he owned prior to that time. Upon proof alone that Reid, as county treasurer, had collected the funds in controversy, and that they had not been applied to the use of the county during his lifetime, nor turned over since his death, the court below held that the failure to account for its disposition created a conclusive presumption that it was commingled with Reid's private assets, and rendered such assets subject to its 'payment. The case of McLeod v. Evans, 66 Wis. 401, 28 N. W. Rep. 173, 214, was relied on as sustaining this conclusion. That decision was rendered by a divided court. The majority opinion, if not a departure from, very much enlarges, the rule very generally announced in the adjudicated cases, and, as correctly stated by Judge Cassoday in his dissenting opinion: "The mere wrongful conversion of the draft by Hodges certainly gave the plaintiff no equitable lien upon property belonging to him prior to such conversion, nor upon assets subsequently acquired from sources entirely outside, and independent of, | and wholly foreign to, the draft or the proceeds of it. To say that it does is to hold that such wrongful conversion of itself gave the plaintiff a preference over all other creditors, regardless of what became of the draft or the proceeds of it. I am not aware of any adjudicated case sanctioning such a preference. An equitable lien exists only when the trust money is directly or indirectly traceable to the fund sought to be charged." Moreover, the facts in that case were dissimilar from those disclosed in the case before us, and furnished some foundation for the claim that the trust money was mixed with private funds. It was shown that Hodges was engaged in the business of banking; that, through drafts drawn on the Chicago bank, the proceeds of the converted draft came into his hands in the course of his business as a banker, and were used by him for the benefit of his estate. In the case of Sherwood v. Bank, (Mich.) 53 N. W. Rep. 923, Judge Durand, after citing cases in point, said: "But in all these cases it is held that the fund must be clearly traced into the hands of the person sought to be charged, and that if the trust property does not remain, but has been made way with by the trustee, the cestuis que trustent have no longer any

specific remedy against any part of his estate in his insolvency, but they must come in pari passu with the other creditors, and prove against the trustee's estate for the amount due them. This rule has been as steadily adhered to by the courts both of this country and of England as any rule which has ever been adopted for the protection of the general creditors of a bankrupt or of an insolvent." Upon a careful examination of the cases cited by appellee, we find nothing in conflict with the rule that, in order to subject a private estate of a defaulting trustee to the payment of the trust fund that has been by him wrongfully converted, while it is not necessary to trace such funds into any particular property, it must be clearly shown that it went into, and was used for, the benefit of such estate. The rule is well established that, to enforce a constructive or resulting trust, the facts from which such trust is claimed to arise must be clearly alleged, and must be proved with clearness and certainty. 2 Pom. Eq. Jur. § 1058; Perry, Trusts, § 137; Bank v. Campbell, 2 Colo. App. 271, 30 Pac. Rep. 357; Phillips v. Overfield, 100 Mo. 466, 13 S. W. Rep. 705. Tested by this rule, the evidence in this case is clearly insufficient to establish appellee's right to recover in this action.

As this case may be retried, we notice briefly the errors assigned upon the admission and rejection of certain evidence. The court permitted, over the objection of appellants, the witness Weaver to testify to statements made by defendant Coston to the commissioners to the effect that the assets in the hands of the administrator were sufficient to pay all liabilities against the estate, and that, if a sufficient time was given them to realize on personal property, they could pay off the indebtedness claimed by the county; that the assets were figured up, and also the liabilities, to show that there would be sufficient. We are unable to perceive wherein this evidence was relevant. It could throw no light upon the merits of the controversy, or in any way aid the court in arriving at any legal or equitable conclusion involved in the action. It was clearly inadmissible.

The reports of the committees appointed by the district court, in pursuance of the statute, to examine the books of the treasurer, offered by appellants, were properly rejected. The facts sought to be established by them could not be proven in that way. While the individuals composing such committee might testify as to the amount of money which they found on hand at the time of their investigation, the reports themselves were clearly inadmissible to prove such fact. For the reasons given in the foregoing opinion, the judgment of the court below must be reversed.