them directly conflicting. In one of these instructions the trial court said: "The plaintiff had not the legal right to use for the purpose of irrigation all of the natural waters of the Calaveras river, which flowed down the Calaveras river and the Mormon slough. The other riparian proprietors of land on the Mormon slough had a legal right to use such natural waters equally with the plaintiffs. The plaintiffs had no legal exclusive right to use such natural waters for the purpose of irrigation in excess of their just and fair proportion thereof." It will be noticed here, in confirmation of what we have already said, that the court does not say "the other riparian proprietors of land on the Mormon slough, and on the Calaveras river, had a legal right to use the waters equally with the plaintiffs." It thus fails to show clearly whether the plaintiffs and the defendants were regarded as riparian proprietors on the same stream. But, passing by this criticism, the instruction furnishes a plain, definite rule. It places the rights of all riparian proprietors to use the stream for irrigation upon a perfect equality; no proprietor has any advantage or superior right to use the water for such purpose, by reason of his being located higher up on the stream than others. This rule clearly and unequivocally distinguishes between the use of water for irrigation, and its use for so-called natural purposes, viz., domestic purposes and watering of stock. By this rule the right of every riparian proprietor to use the water for irrigation is limited, regulated and controlled by the equal right of every other proprietor on the same stream to use its waters for similar purposes.

It will be remembered that the common law doctrines distinguish between certain uses of water called natural and all others. It is the settled rule that while a riparian proprietor must use the water in a reasonable manner and to a reasonable amount, he is entitled to take all of the water which is reasonably necessary in manner and amount to supply his natural purposes-namely, his domestic purposes and the watering of his stock, even if so much of the water of the stream is thus consumed that there is not a sufficient amount left flowing in its channel to supply the similar uses of the proprietors below him. In this single respect the common law gives a natural superiority of right to a proprietor higher up the stream over one lower down; but the superiority is strictly confined to the natural uses of domestic purposes and watering stock. The real question to be determined is, whether the irrigation of lands is one of these natural uses, standing upon the same footing with domestic uses and the watering of stock. The instruction quoted above most unequivocally answers this question in the negative, and gives one proprietor no preference whatsoever over the other proprietors in the use of the stream for the purpose of irrigation. The second instruction, to which we

1 See Ferrea v. Knipe, 28 Cal. 341, 344, per Currey, J.

have referred, seems to put irrigation on the same footing with domestic purposes. This instruction was as follows: "Every riparian owner upon a stream has a right to use, in a reasonable way, the water of said stream for domestic purposes, for the irrigation of his land, or for propelling machinery, if the quantity of water will warrant such use above the amount required for domestic purposes." So far as this instruction can be construed as laying down any rule, it plainly seems to place irrigation and domestic purposes upon the same footing, and if so, it is conflicting with the doctrine announced in the other instruction previously quoted. We have thus analyzed these instructions and the rules which they purport to embody, for the purpose of showing that, although tacitly adopted by the supreme court, because not objected to on the trial, they do not furnish any authoritative and final settlement of the questions at issue. The instruction last above quoted is open to the gravest criticism; it mingles up subjects entirely unlike. The use of water for "domestic" purposes, necessarily consumes it. And yet, if the manner and amount are reasonable, the proprietor may use and thereby consume all that is reasonably necessary, under the circumstances, even though the natural flow of the stream is thus so diminished that there is not left a supply for the proprietors below. The use of water for irrigation also consumes it. It has been claimed that irrigation is a natural use, and that the right of a proprietor to use and consume water for irrigation is the same in nature and extent as the right to use and consume it for domestic purposes and for the watering of stock.

But, on the other hand, the use of water for propelling machinery does not consume it. The settled doctrines of the common law allow a riparian proprietor to use the water of a stream-the whole stream if needed as it passes through his land, for the purpose of propelling machinery, provided he returns the water undiminished in quantity and undeteriorated in quality, into the natural channel of the stream before it leaves his own land and enters that of the proprietor next below him. Such a use for propelling machinery, under these limitations, cannot possibly injure the other riparian proprietors either above or below him on the same stream. There is, therefore, no analogy between the use of water for propelling machinery, and its use for domestic purposes, or for irrigation. These various uses are governed by entirely different rules and depend upon entirely different considerations. Our review of this case does not touch upon the decision made by the supreme court. That tribunal could, of course, only deal with the questions presented to it by the record,—the questions raised by the exceptions.

Although this case of Ellis v. Tone, as we have shown by the foregoing examination, is of little value in settling the important, general doctrines as to the rights of private riparian proprietors in the law of

California, yet it has a certain tendency towards such a settlement. It plainly distinguished between the case of a stream running wholly through public land, and that of a stream bordered by the lands of private owners. Although the cause of action arose in 1877, several years after the civil code took effect, no allusion whatever is made, by the court or the counsel, to the provisions of the code relating to water rights. The title of the code on this subject seems to have been tacitly ignored as inapplicabe to such a case. The argument of the counsel for both parties, as reported, freely cite text books and decisions based upon and representing the common law doctrines, but they do not cite the code. It is probable that the case, as a whole, proceeded upon the assumption that the Calaveras river and the Mormon slough running out of it formed one stream in contemplation of law, and intended to deal with the rights of the two litigant parties as though both were riparian proprietors upon that single stream; in other words, it intended to lay down rules of law applicable to two proprietors in such a condition. In regard to the use of water for irrigation, the decision, as a whole seems to deny the right of any riparian proprietor to use all the amount of water which may be reasonably necessary to irrigate his lands, if by such use the water left flowing down the stream is rendered insufficient for the similar purposes of other riparian proprietors. On the contrary, the case seems to regard the right to use the water of a stream for irrigation, as belonging alike to all the riparian proprietors upon the stream; that each proprietor is entitled to use, for irrigating his lands, only so much of the water of the stream as is in excess over and above the amounts which are requsite to supply the similar purposes and uses of all the other proprietors upon the same stream. In fact, the right of each riparian proprietor upon any particular stream to use its water for irrigation must depend, among other things, upon the size of the stream, the amount and volume of water naturally flowing down its channel, the number of riparian proprietors upon it, the amount or acreage of the land entitled to irrigation held by each of these proprietors, and other similar considerations. Such as it appears to us, is the tendency of the decision in Ellis v. Tone, although it cannot, in our opinion, be said that the case authoritatively and finally decides or settles any of these conclusions. J. N. P.

[TO BE CONTINUED.]

SUPREME COURT OF COLORADO.

CITY OF DENVER v. DUNSMORE.

Filed April 18, 1883.

LIABILITY OF MUNICIPAL CORPORATIONS FOR NEGLECTING TO REPAIR HIGHWAYS.-When municipal corporations are invested with exclusive authority and control over the streets and bridges within their corporate limits, with ample power of raising money for their construction, improvement and repair, the duty is imposed upon such corporation, from the nature of the powers granted, to keep such highways in a reasonable safe condition for the ordinary mode of use to which they are subjected, and a corresponding liability rests upon them to respond in damages to those injured by a neglect to perform such duty.

THE SAME THE CITY OF DENVER BEING OBLIGED TO KEEP IN REPAIR the streets and bridges within its corporate limits, is impliedly liable for any special damages suffered in consequence of its neglect so to do.

THE SAME TO ENTITLE A PLAINTIFF TO A RECOVERY FOR SUCH DAMAGES he must have used reasonable or ordinary care, or such care as is usually exercised, under like circumstances, by persons of ordinary prudence, to avoid the accident. If the plaintiff's own testimony shows that he brought the injury upon himself, by his own carelessness, he must be non-suited; otherwise, the proof of contributory negligence must come from the defendant. CONTRIBUTORY NEGLIGENCE-CASE IN JUDGMENT.-The appellant had permitted a bridge in one of its principal thoroughfares to become unsafe for the ordinary use to which it was daily subjected, and with full knowledge of its unsafe condition, had failed to either repair it or give any warning of its unsafe condition. While in such condition the plaintiff attempted to cross the bridge with a load of rocks. In so doing the wheel of his wagon crushed through the floor of the bridge, going down to the hub, and while endeavoring to pry it up, by the use of levers and fulcrums, the timbers gave away and the plaintiff fell and broke his leg. According to the plaintiff's testimony, he did not know that the bridge was unsafe, although he knew that it was much worn and would shake when a load of freight was crossing. Held, that whether the plaintiff was guilty of contributory negligence in adopting the means used by him in attempting to extricate his wagon, was a question for the jury.

AMOUNT OF DAMAGES TO BE AWARDED IN AN ACTION FOR A PERSONAL INJURY is in the sound discretion of the jury, whose verdict will not be disturbed, unless it appears that they were influenced by prejudice, misapprehension, or by some corrupt or improper consideration.

INTRODUCTION OF EVIDENCE--ORDER OF.-It is not error authorizing a reversal for the trial court, after the defendant has closed, to permit the plaintiff to introduce evidence not in rebuttal, if the defendant makes no effort to contradict the same.

APPEAL from a judgment of the district court for Arapahoe county, entered in favor of the plaintiff. The opinion states the facts. John L. Jerome, for the appellant.

W. S. Decker and C. W. Wright, for the appellee.

BECK, C. J. The principal question raised by the assignment of errors and discussed in the briefs of counsel for both parties is, whether an implied liability rests upon municipal corporations proper under the laws of this state, to keep in repair the streets and bridges within their corporate limits, and whether actions lie against them at the suit of individuals for special damages suffered in consequence of their neglect so to do.

It is conceded that the legislature has not expressly given such right of action either by the general statute, or by the special charter under which the city of Denver was incorporated. The right to maintain such actions for damages therefor, if it exists, depends upon principle and precedent.

Judgment was rendered against the city in the court below, and upon this appeal its counsel says: "In seeking a reversal of this judgment, the sons urd by appellant may be submitted under two heads:

1. The corporation of the city of Denver is exempt from all liability to individuals for special damages suffered by reason of failure to repair streets or bridges. The functions of the corporation are purely governmental, and the remedy for malfeasance by public officers is by indictment.

2. We rely upon the specific exceptions reserved by appellant in the court below.

Counsel on both sides have discussed the questions involved very fully, and have cited and rely upon as precedents supporting their respective theories, a list of cases extending from an early period in the seventeenth century up to the present time.

The several propositions of counsel for the city upon the first ground for reversal, as we understand them, are substantially as follows:

First. That at common law no action for damages lay against a municipality for negligence in the exercise of its public duties or powers.

Second. The almost universal rule of decision is, that in the absence of statute to that effect, no such liability attaches to quasi municipal corporations, such as counties and unincorporated towns.

Third. No such liability is created by any statute of this state, as against either municipal corporations, proper or quasi municipal corporations while the powers conferred by charter, in the one case, and by the general law, in the other, respecting the opening and maintenance of highways and the building and repairs of bridges are practically the same in both cases. No such liability therefore exists in either case. Illustrative of the doctrine contended for, counsel for appellant says, if this accident had occurred upon a highway outside the city limits the action could not be maintained against Arapahoe county.

The substance of the whole argument is that the courts which have held municipal corporations liable to individuals for special damages, have done so in violation of common law, principles and precedents, and without assigning any logical reasons why, in absence of an express statute fixing such liability, the same rule of decision should not be applied as in cases of quasi corporations, against which it is not pretended that such liability attaches.

Counsel for appellant insists throughout the entire discussion that unless this court can point out a tangible distinction between the powers, privileges and duties of these two classes of corporations, under our statutes, the precedent to be established for this state respecting their liabilities in actions of this character must be the same for both classes.

As to this proposition we are of opinion that the argument of counsel, as well as the authorities cited, furnish much stronger reasons for maintaining the liability of quasi corporations, in view of their extended privileges and powers in this country, than for the