tities of water specified, and consequently a limitation upon the alienees of the parties to require separate deliveries of their respective subdivisions. The alienees, whether by contract or operation of law, must receive the water in the same manner as the original grantees, in two distinct shares or quantities only.

3. EQUITABLE CONSTRUCTION OF CONTRACTS.-Equitable construction, and those of convenience and value, are only allowable to control the interpretation and construction of contracts in those cases where the intention of the parties cannot be clearly derived from the terms of their agreements, or where their provisions are equally susceptible of two constructions. But where the language is clear and the intention manifest, they cannot be disregarded in determining the rights of the parties, or their assigns.

Error to District Court of Boulder County.

Mr. L. C. ROCKWELL, pro se.

Messrs. BYRON L. CARR & F. P. SECOR, for defendant in

error.

BISSELL, J. The refusal of the ditch company to deliver water to Rockwell was the gravamen of this suit. It was an equitable proceeding to obtain a perpetual injunction to enforce his claim. On the hearing the bill was dismissed. According to the view which the court takes of the rights of the parties it will not be needful to refer to any part of the testimony, save in the most cursory fashion, except as to the contract upon which Rockwell's right rests and out of which the obligations of the ditch company spring. The provisions and conditions of the contract, other than a few of its specific clauses, can be easily understood from a general statement of them. In May, 1881, Hetzel and Osborn were owners of a quarter section of land in Boulder county, Colorado. In May of that year they granted and conveyed the realty to The Highland Ditch Company in consideration for the grant and sale of a perpetual water right for two hundred and fifty inches of water. It would seem that there was a depression in the land which the company proposed to improve and turn into a reservoir for the storage and distribution

of water to their various customers. As is usual in those cases the contract ran to the grantors of the property, their heirs, representatives and assigns. It is unnecessary to state the general provisions of the agreement concerning the construction of the ditches and the delivery of the water. It was distinctly provided that the ditch company should "furnish water at such time as Hetzel and Osborn might require between the 1st of March and the 1st of November, and at one continuous time, or at different times, as said second party may elect, until the added days of all said several times shall equal sixty days in any given year." It was further stipulated "that the proportionate quantity of water to be delivered to each of said parties of the second part, respectively, is sixty-two and one half inches to said Jacob Hetzel, and one hundred and eighty-seven and one half to the said Osborn, to be delivered in separate shares to each party, or the whole quantity to be delivered together as said second parties may determine, either of said parties to have the right to demand and receive his proportionate share at any time. That the heirs, executors, administrators and assigns of said second party shall severally and jointly have the same rights in relation to each other that second parties have in reference to each other." Evidently the rights of the grantees of the perpetual water right, and the obligations of the company with reference to the supply, are fixed by the terms of the contract and must be learned from its provisions. None of the rights to the waters of a running stream under the constitution and statutes of the state which may be acquired by the user can in any manner affect the obligations or relations of the contracting parties. The company was the owner in fee of the land on which the lake was situated, and had an absolute title to the water, with the right and privilege of sale according to their own pleasure. The accurate construction of this contract is one of some difficulty, but the conclusion arrived at seems to be the only one consistent with its provisions. It is not necessary to determine what may be the obligations

of the original grantees, and their subsequent alienees, as between themselves, since the action was brought solely against the ditch company by an alienee whose rights are to be measured by the terms of the original instrument. There will be no discussion about the right of the various owners and alienees, in case of a convention between them to insist upon a delivery of the water at such times as they may elect, and in such quantities as they may desire, subject to the expressed limits of the agreement. The sole inquiry, and the only question determined by this decision, is as to the rights which Osborn acquired under the contract, and whether his right is a divisible one without the consent of the company. The argument that it is the policy of our law to prevent restraints upon the alienation of property rights, which is always persuasive when its application is possible and consistent with the agreement of the parties, can have no influence in the settlement of the present controversy. The matter rests wholly in contract, and the question is a naked one of construction. There seems to be no escape from the conclusion that there was an agreement to deliver sixty-two and one half inches to Hetzel, and one hundred eighty-seven and one half inches to Osborn. It was a contract to deliver two distinct and specific quantities of water to the two named grantees for a definite period of time, with no right of separation or division as to quantity, except the expressed one of the right to receive the total quantity in separate shares to each party, as stated, or the right to receive the total two hundred fifty inches at one time, at the election of the grantees. This enumeration of the rights and the definite relation of Hetzel's sixty-two and one half inches, and Osborn's one hundred eighty-seven and one half inches, with an expressed inhibition upon any right of division except that which would give each his limited quantity, or to both the entire amount at one time, must be taken as a limitation upon the right of division, which would naturally follow a general grant of a water right to parties and their grantees. The intention of the parties to the contract with reference to alien

ees is very clearly expressed by the subsequent provision, that the heirs and assigns shall enjoy rights with reference to each other identical with those which Hetzel and Osborn have with reference to each other, which are to receive the sixty-two and one half inches, and one hundred-eighty seven and one half inches, as two distinct and specified quantities of water, and the option to receive the two hundred and fifty inches at one and the same time, if they may so elect. The introduction of this last clause was evidently the result of a purpose to so limit the right of division as to the alienees, whether by contract or operation of law, that they must take as Hetzel or Osborn took, in two distinct and specified shares, divisible in the quantities named. While equitable considerations and those of convenience and value are often allowed to control the construction and interpretation of contracts, it is only in those cases where the intention of the parties cannot be clearly derived from the terms of their agreement, or where its provisions are equally susceptible of two constructions. When the language is clear and the intention manifest, they cannot be disregarded in determining the rights of the parties. They rest upon contract and are totally unaffected by the evidence which was introduced for the foundation of the contention, that the company by their conduct were estopped, as against Rockwell, to insist that he had no right to claim the sixty-two and one half inches of water which he bought from the Osborns. The case is barren of the facts which the authorities all agree are essential to the creation of an estoppel. What Rockwell acquired was gotten by a grant of a part of that which rested in contract; he bought with knowledge of it,―must be charged with notice of its limitations, and he must be held bound by its provisions. There was an absence of proof that he bought upon the faith and strength of any antecedent representation, on the part of the company, or that he was misled to his prejudice by anything which they did, upon which he had a right to rely. It is unnecessary to state the whole ground of an estoppel. Enough has been said to show that the plaintiff

in error failed to bring himself within the protection of that principle.

There is no error in the record upon which the judgment ought to be reversed, and it will accordingly be affirmed.

Affirmed.

RICHMOND, P. J., took no part in the consideration of this

cause.

THE COLORADO CONSOLIDATED LAND AND WATER COMPANY, APPELLANT, V. JAMES A. MORRIS, APPELLEE.

1. SUIT AGAINST CONSOLIDATED WATER COMPANY NECESSARY PROOF.-In an action against a consolidated water company, organized by the consolidation of two ditch companies, for damages to real estate occasioned by a ditch constructed by one of them, the plaintiff must prove, in order to maintain his action, by which branch of the consolidated company the ditch was constructed which occasioned the injury.

2. ATTEMPT TO RECOVER FOR INJURIES TO LAND ON AFTER-ACQUIRED TITLE.-One who is in possession of land under a pre-emption claim at the time of injury thereto, but who, after bringing a suit for recovery of the damages, abandoned his pre-emption filing and initiated a new title by a homestead entry, cannot maintain such suit on his after-acquired title. In such case it is error for the court to receive evidence of an injury to the land committed prior to the inception of the title put in evidence by the plaintiff.

Appeal from County Court of Montezuma County.

Mr. S. W. CARPENTER, for appellant.

BISSELL, J. The construction and operation of a ditch in Montezuma county occasioned the damages for which the appellee brought this suit against the water company. According to his complaint and his proof, the Colorado Consolidated Land and Water Company was organized on the VOL. I-26