appellee indulging his childish instincts, 123 and thus expose himself to the means of danger which resulted in his injury. It was not error for the court to refuse the motion for nonsuit, or refuse to instruct the jury to return a verdict for appellant.

The instruction prayed by appellant and refused, upon which refusal error is assigned, was to the effect that if appellee, previous to the injury, had been warned of the danger of alighting from a moving street-car, was thirteen years of age and upward at the time of the accident, and possessed of the intelligence usual for boys of that age, he was guilty of negligence, which would preclude his recovery.

The danger to which appellee was exposed by leaping from a moving car was not hidden or difficult of comprehension. He had reached that age when, explicitly informed of such danger, it should have created an impression upon his mind which he should have heeded. If, after being so informed, he still chose to voluntarily incur the danger regarding which he had been warned, he should be held responsible for his want of care in this respect. In case of one more youthful, or where the danger was not patent, such an instruction might not be proper, because of the inability of the person thus warned, on account of his youth, to comprehend the character of the danger regarding which he was advised, or remember that he had been so informed; but, in case of a boy of the age of appellee at the time of the accident, the fact that he had been told of the danger to which he was exposed by previous acts of a character similar to that which was the proximate cause of his injury, should have been sufficient, if of the usual intelligence and experience of boys of that age, to have prompted him to avoid such danger in the future, and, if he did not, would himself be in fault. The instruction given on the subject of contributory negligence was a correct statement of the law, in so far as it directed the jury to determine the capability of appellee to appreciate the danger to which he exposed himself, from a consideration of the particular matters therein mentioned, but was silent on the subject as to what the law was in the event the evidence 124 established he had been warned of such danger. This was the distinguishing feature between the instruction given and the one requested; and as there was evidence tending to prove that he had been previously warned of the danger incident to alighting from a moving car, the attention of the jury should have been particularly called to this phase of the case, by giving the instruction requested on this subject. On another trial, it is suggested that in case the

evidence again warrants the giving of instructions similar to those under consideration, they should be so framed that a jury will clearly understand that each question therein embraced must be passed upon.

It now remains to consider the ruling of the court upon the offer of appellant to show by a witness that, at the time it is claimed appellee made the statement he was to blame for the injury, he had not been given any drug or anaesthetic. Under the instructions given, the all-important question in this case for the jury to determine was the capability of appellee to appreciate the danger of alighting from a street car when in motion. It was proper to show he made the statement claimed, as tending to establish his degree of knowledge regarding such danger; it was also proper, on behalf of appellee, to have the statement before the jury that at the time he made such statement his mind was affected by some drug, given for the purpose of alleviating pain; and certainly it was proper for appellant to show, if it could, that at the time he made the statement he had not been given such drug. If the jury had found, as a matter of fact, he made the statement, but also believed from the evidence it was made when laboring under the influence of some drug, very likely little or no weight would be attached to a statement by appellee made under those conditions; but, had they also found, had there been evidence to warrant it, that appellee was not affected in the manner claimed, it might have had some effect upon the minds of the jurors as to the weight which should be given such a statement. We cannot say what weight any of this evidence may have had upon the jury-that was a 125 matter for their consideration; nor can we say what influence the evidence excluded might have exerted upon their minds. All we have to deal with is the materiality or immateriality of such evidence. It was error for the trial court to refuse the offer of appellant to introduce the proposed evidence. The judgment is reversed, and the cause remanded for a new trial.

NEGLIGENCE OF CHILDREN.-An infant of tender years is deemed, in law, not possessed of sufficient discretion to be guilty of negligence for its failure to exercise due care for its safety: Evansville v. Senhenn, 151 Ind. 42, 68 Am. St. Rep. 218. When a child has reached the age of discretion, the degree of care and caution required of him is no greater nor higher than such as is usually exercised by persons of similar age, judgment, and experience; and whether that degree of care and caution has been exercised by the child in a given case is usually, if not always, a question of fact for the jury: Consolidated Traction Co. v. Scott, 58 N. J. L 682, 55 Am. St. Rep. 620; Railroad Co. v. Mackey, 53 Ohio St. 370,

53 Am. St. Rep. 641. The question whether or not the mind of a boy ten years of age is sufficiently mature to make him responsible for his contributory negligence is a question of fact for the jury: Avey v. Galveston etc. Ry. Co., 81 Tex. 243, 26 Am. St. Rep. 809; Queen v. Dayton Coal etc. Co., 95 Tenn. 458, 49 Am. St. Rep. 935. On the negligence of infants, see the extended note to Westbrook v. Mobile etc. R. R. Co., 14 Am. St. Rep. 590.

THE ADMISSIONS of a party are competent evidence against him: Fickett v. Swift, 41 Me. 65, 66 Am. Dec. 214; Printup v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258.

CACHE LA POUDRE IRRIGATING COMPANY V. LARIMER AND WELD RESERVOIR COMPANY.

[25 COLORADO, 144.]

WATERS AND WATERCOURSES-TRANSFER OF STOCK AS TRANSFER OF WATER RIGHTS.-A transfer of stock in an irrigating ditch operates as a transfer of the right to the use of the water, as well as an interest in the corporation issuing such stock, when such corporation is formed of the cotenants owning the ditch and water rights, and such shares of stock represent not only the rights of the parties in the ditch, but also the right to the use of the water.

WATERS AND WATERCOURSES-SALE OF WATER RIGHTS SEPARATE FROM LAND.-There may be a sale of a water right separate from the land, and an application of the water to other land, so long as the rights of third persons are not infringed. WATERS AND WATERCOURSES-PRIORITIES IN

WATER RIGHTS.-The apportionment of water which the owners of a prior right make between themselves cannot be complained of by a junior appropriator, so long as no more water than the priority calls for is diverted from the common source, and so long as the consumers have a necessity for it, and apply it to a beneficial purpose.

WATERS AND

IN

WATERCOURSES-PRIORITIES WATER RIGHT.-Evidence that after a transfer of priorities in water rights more lands were irrigated from the common source of supply than before does not of itself necessarily establish an enlarged diversion or user of which a junior appropriator can complain.

J. E. Garrigues, for the appellant.

H. N. Haynes, for the appellee.

145 CAMPBELL, C. J. This is a writ of error to a judg ment of the court of appeals, reversing the judgment of the district court.

To this action, as tried below, there were several defendants, the causes of action alleged against those not appearing upon the review in either appellate court being entirely distinct and separate from that averred against the present defendant in error, which was plaintiff in error in the court of appeals, and a defendant below. The grievance against this defendant is, that in buy

ing a water right, separate from the land, and transferring the place of use to other lands, the subsequent use was thereby "enlarged," to plaintiff's injury. In its decree the district court enjoined the defendant from using, in times of scarcity, a certain quantity of the water thus sought to be transferred, until the plaintiff's priority was satisfied, but refused to restrain it in the use of a certain other quantity thereof, which relief the plaintiff also asked.

In the court of appeals, the defendant, as plaintiff in error there, assigned as error the granting of the injunction; and, the plaintiff, as defendant in error, assigned cross-errors to 146 the refusal of the district court to give all the relief prayed. Upon a hearing in the court of appeals the decree was reversed, no relief being awarded to plaintiff, and the injunction theretofore granted was dissolved: Larimer etc. Reservoir Co. v. Cache La Poudre Irr. Co., 8 Colo. App. 237.

The theory upon which this case was tried by the plaintiff is, that no transfer of the right to use water for irrigation can be made, or the place of such use changed, to the injury of junior appropriators. While in the pleading it might be inferred that reliance was had upon an abandonment, there is nothing in the evidence to show any subsequent appropriation by plaintiff of the abandoned right, even if such had resulted. With much of plaintiff's argument no fault can be found, and, if the proof sustained the allegations of its pleadings, the relief prayed for should be awarded.

The undisputed facts are that the "Jackson" ditch has a decreed appropriation under its first two priorities of twenty-six and one-twelfth cubic feet, antedating any appropriation of the plaintiff's ditch, called Greeley Canal No. 2, whose first two priorities of two hundred and eighty cubic feet are junior to either of the defendant's. The owners of the Jackson ditch and its priorities owned them as tenants in common, and were consumers of the water thereby carried, and they organized a corporation called the Dry Creek Ditch Company, what is commonly known as a "Mutual Ditch Company," to which they conveyed the ditch and the water rights, the company issuing to the several owners capital stock representing ownership in the ditch and the quantity of water which they were entitled to use.

There were twenty-four shares of stock issued. Of these the defendant company, long after the water had been beneficially used, bought three and one-fourth shares from Terry, Black, and Alford, water consumers under the Jackson ditch, and stored

the water thereby represented in its reservoir, and thence distributed it during the later irrigation season to its stockholders, who used it for irrigating lands belonging to them and lying under their ditch. It will be seen that the water was thus severed from the land on which it 147 was originally used, and applied for the purpose of irrigating other lands. The plaintiff charges that no priority was sold by the sale of ditch stock, and, if it was, then such transfer and change of use have resulted in an enlarged use of water to plaintiff's injury.

In the first place, it is said that the Jackson ditch, its capital stock, and priority to the use of water thereby carried, are three separate and distinct things; the ditch belonging to the corporation, the priority to the water consumers, while the stock may be held by persons not using water. Upon this, as a premise, the argument is that the corporation cannot transfer a priority, only the water consumer may do this. The sale of ditch stock is not the sale of a priority. To transfer this the water consumer must also sell the land upon which the water has been used, or, if he retains the land and sells the water right to be applied on other lands, such right passes to the grantee, and the grantor no longer can irrigate the land retained by means of the water right thus conveyed to another. The conclusion drawn is that in the sale of ditch stock to this defendant no priority passed, and reliance is had on Combs v. Agricultural Ditch Co., 17 Colo. 146, 31 Am. St. Rep. 275.

The premise, as laid down, may be true in whole or in part, or it may be entirely false. A ditch company organized merely as a carrier of water to those owning the appropriation may, as a corporation, own the physical or tangible ditch. Its stock may be in the hands of A and B, and the consumers of water may be C and D, and the transfer of the capital stock of the company may carry only an interest in the ditch. But where, as is the case at bar, the water rights, and the ditch through which they are enjoyed, are owned by the same persons as tenants in common, and for their mutual convenience they organize a corpora tion and convey to it the ditch and water rights, and the corporation issues to the consumers its capital stock, which represents and stands for, not only the rights of the parties in the ditch, but, by a mutual arrangement, also represents the right to the use of water, or the priority right, then this stock (while not, of course, constituting 148 the ditch or priority to the use of water) does represent both the ditch and that priority, and a transfer of the stock operates as a transfer of both kinds of property. So