cution of the mortgage, an oral agreement was made between the parties that the mortgagors might retain out of the proceeds of the sales not to exceed $10 per week each, for the support of their families. This oral agreement gives rise to the only question in the case. A mortgage of merchandise which permits a mortgagor to remain in possession of the goods, and sell them in the usual course of business, paying the proceeds to the mortgagee until his debt is extinguished, has been repeatedly held to be valid, in so far as the instrument itself is concerned; but its requirements must be carried out in good faith, and to the letter, otherwise the instrument, which the law intends merely as a security for an indebtedness, might be used by the mortgagor as a weapon to protect him against the enforcement of other just demands. That it may not have that effect, the moneys arising from the sale of the property must be turned over to the mortgagee until the mortgage debt is paid; | and if, either by the terms of the mortgage itself, or by any agreement, oral or other wise, the mortgagor is permitted to retain the proceeds, in whole or in part, for his own benefit, the effect is manifestly injurious to creditors, and in fraud of their rights; and such an agreement, no matter when made, or in what form, except as between the par ties themselves, destroys the lien of the mort gage, and renders the instrument void. In this case the amount which might be retained by the mortgagors was limited to $10 per week each, but it is immaterial whether the amount was limited or unlimited, or how great or small the limit fixed. It is not the extent to which such application of the proceeds might go, but the fact that it was permitted at all, which is decisive of the case. The judgment of the court below, being in favor of the plaintiffs, and against the interveners, is affirmed. (1 Colo. App. 78) LARIMER COUNTY DITCH CO. v. ZIM MERMAN. (Court of Appeals of Colorado. Nov. 27, 1893.) RESERVOIRS-BREAKING OF EMBANKMENTS LIA BILITY OF LESSEE-BURDEN OF PROOF. 1. One to whom a reservoir is leased in consideration of his completing its construction and maintaining it is an "owner," within Mills' Ann. St. § 2272, providing that the owners of reservoirs shall be liable for floods from the breaking of the embankments. 2. Under such statute, one injured is not bound, in the first instance, at least, to show negligence on the part of the owner, but, if the owner is not absolutely liable, it is for him to exonerate himself. Appeal from district court, Larimer county. Action by John Zimmerman against the Larimer County Ditch Company for damages from the breaking of reservoir embankments. Judgment for plaint. Defendant appeals. Affirmed. J. W. McCreery and George W. Bailey, for appellant. E. A. Ballard and Robinson & Love, for appellee. REED, J. The Larimer County Reservoir Company was the owner and in possession of some six reservoirs or reservoir sites upon the Cache a la Poudre river, in the upper part of that stream. Some, but how many, reservoirs were constructed or finished, how many in the course of construction and unfinished, and of how many the work of construction had not been commenced, or which belonged to either class, is not shown by the evidence. Among them was Chambers' Lake reservoir, at the head of the stream, known as "Number One." On the 19th of September, 1882, the Larimer County Reservoir Company made the following lease to appellant: "That said first party, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by said second party, has demised and leased to it, said second party, all those premises situate, lying, and being in the county of Larimer and state of Colorado, known and described as follows, to wit: 'Reservoir Number One,' 'Reservoir Number Two,' 'Reservoir Number Three,' 'Reservoir Number Four,' 'Reservoir Number Five,' 'Reservoir Number Six,' 'Reservoir Number Seven,' of said first party,-, as defined, located, and described in its arti-" cles of incorporation on file in the office of the secretary of state and county clerk of Larimer county, Colo.; and also all rights, privileges, and franchises of said first party acquired by it under its said articles of incorporation, and the acts and work of said corporation taken and done under the same, including the dams at Chambers' lake,-Reservoir One aforesaid, and the land under said lake or reservoir, and the land that may be overflowed by the same. To have and to hold the above-described premises, privileges, rights, and franchises, with all appurtenances thereunto belonging or in any wise appertaining, unto second party, its successors and assigns, from the date hereof, for, during, and until the 19th day of September, A. D. nineteen hundred and one, (1901.) And said second party, in consideration of the leasing of the premises, rights, privileges, and franchises aforesaid, by said first party to said second party, does covenant and agree with said first party, its successors and assigns, as rent for said premises, rights, privileges, and franchises, to complete the construction of said reservoir and dams for holding and drawing off the water from the same, and to keep and maintain the same in good repair during the term of this lease, at the cost and expense of said second party; and, at the expiration of the time of this lease mentioned, said second party will yield up said premises, rights, privileges, and franchises to said first party in as good order and condition as when the same were entered upon by the said second party, loss by in evitable accident or ordinary wear excepted." Appellant entered into the possession of the demised premises, and operated and controlled them from and after that date. On the 10th day of June, 1891, the wasteway of water in the natural soil adjoining the dam of the Chambers' lake reservoir was washed out, an opening made, 150 to 200 feet in width, and of sufficient depth to discharge the large body of water contained in the reservoir into the river, causing a flood in the same, by reason of which appellee, a landowner living some miles below, alleged that he sustained damage to a large amount, for which he brought suit. The case was tried to a jury, resulting in a verdict and judgment for appellee for $1,350. There was but very little controversy as to the facts, except as to the amount of damage sustained, which was found as a fact by the jury, and it is not urged in argument that it was excessive. The only error urged and relied upon is in giving the following instruction: "This is an action brought by John Zimmerman against the Larimer County Ditch Company to recover damages which he says he has sustained by reason of the breaking of a certain reservoir owned, operated, and maintained, as he claims, by the defendant. The statute of this state provides that 'the owners of reservoirs shall be liable for all damages arising from leakage or overflow of the waters therefrom, or by floods caused by the breaking of the embankments of such reservoirs.' The statute uses the word 'owner,' but you are instructed that if you believe from the evidence that the defendant company had the sole charge, operation, maintenance, and control of the reservoir in question, that it is the owner of the reservoir within the meaning of this statute. If you believe that the reservoir mentioned in the evidence either broke its banks or overflowed, that it was owned by the defendant company, as I have heretofore instructed you as to ownership, and that damage from the overflow resulted to the plaintiff, it will be your duty to assess such damage as may have been proven in evidence by the plaintiff." It was contended upon the trial that appellant, being a lessee of the reservoir in question, could not be held responsible for the damage. The question was raised in several ways, and exceptions taken to the ruling of the court. The only question to be determined by this court is whether, under the facts and evidence, appellant could be held to be an owner, the statute being: "The owners of reservoirs shall be liable for all damages arising from leakage or overflow of water therefrom, or by floods caused by the breaking of the embankments of such reservoirs." Mills' Ann. St. § 2272. In construing statutes, the evident intention of the legislature, and the evils against which the statutes are directed, must be regarded. The damming and retaining of large bodies of water at elevations sufficiently great to allow the water to be used for purposes of irrigation is at all times a danger and continual menace to lower proprietors on the course of the stream through which the water would find its natural outlet, and the danger has been emphasized by repeated disaster to life and property in this and other states. The inducement to secure water for the use of the person or for sale, at the most moderate expense in construction, has been so great that, regardless of the rights and dangers to others, many reservoirs were constructed with inadequate dams and auxiliaries. It was to guard against this abuse, and compel the making to be substantial, and that they and their appliances should be constructed upon scientific principles, and in such manner as to obviate the danger, as far as human skill could do it, and reduce it to a minimum. It had undoubtedly been found that, by care and the expenditure of the requisite amount of money, reservoirs could be made reasonably, if not absolutely, safe. To compel such construction, and afford all the protection possible to property, was the evident intention of the legislature. As before stated, to what extent construction of the reservoir in question had progressed at the time of the making of the lease has not been shown; but as the completion of the construction was made a part of the rental for some nine years, and no cash rent was to be paid, it is safe to infer that a large amount of work was still necessary to complete the construction. If such were the case, there was no reservoir, but only a site, at the time of leasing, and in any event the onus of proper construction and maintenance was cast upon the lessee. The word "owner" is rather embarrassing without qualification or assistance, and can only be construed in a legal or modified sense. An owner is defined in law to be: "He who has dominion over a thing which he may use as he pleases, except as restrained by the law or by an agreement." Dow v. Mining Co., 31 Cal. 649. "Includes any person having a claim or interest in real property, though less than an absolute fee." Lozo v. Sutherland, 38 Mich. 171. See Tyler v. Jewett, 82 Ala. 98, 2 South. 905; Schott v. Harvey, 105 Pa. St. 229; Davis v. Cincinnati, 36 Ohio St. 26. Not only the burden of maintaining, but that of construction, was cast upon the lessee, and it was in the absolute control and possession of the property at the time of the injury, and had been for eight years. Considering the intention of the act and the modified definitions of the word "owner" in many judicial decisions, we are clearly of the opinion that an estate less than an absolute fee would render a party liable, and that the intention of the legislature was to hold responsible the parties whose duty it was to construct and maintain. To construe the statute otherwise would defeat the leg islative intent, and might, in any instance, prevent redress to the injured party. Whether or not the statute is absolute, and fixes the responsibility regardless of conditions and circumstances, and makes the owner an insurer against any damage caused by breakage, the act of God, or unprecedented floods, against which human foresight was powerless, we are not called upon to decide; the issue was not made by the pleadings, nor tried by the jury. Some evidence was introduced to show unusual fall and volumes of water in the tributary streams above the reservoir, but the testimony was meager, unsatisfactory, and partially contradictory. Without going further, we think it safe to say that from the wording of the statute, and the evident intention of the legislature, it is sufficiently absolute to relieve the plaintiff from alleging and proving negligence, and cast upon the defendant the onus of exonerating itself. By the terms of the statute the plaintiff is not required to allege or prove negligence. Prima facie, at least, a case is made when the damage and cause, by the breaking of the reservoir, are established. In these views of the case, we think the instruction objected to was correct, and that the judgment should be affirmed. Gen. St. c. 93, §§ 13, 14, as amended by Sess. Laws 1885, p. 304, and Sess. Laws 1891, p. 281, (known as "Railroad Stock-Killing Acts,") making railroad companies absolutely liable for stock killed, and arbitrarily fixing the amount to be paid, contravene the constitutional provisions for equal protection and due process of law. Railway Co. v. Vaughn, (Colo. App.) 34 Pac. 264, followed. Appeal from Mesa county court. Action by Frank Chamberlin against the Rio Grande Western Railway Company for the killing of stock. Judgment for plaintiff. Defendant appeals. Reversed. Chas. F. Caswell, for appellant. THOMSON, J. Chamberlin, the plaintiff below, recovered a judgment of $80 against the defendant company for killing a cow worth $40. The recovery was had under our stock-killing statute,' which has been repeatedly held by the supreme court and this court to be unconstitutional. Wadsworth v. Railway Co., (Colo. Sup.) 33 Pac. 515; Railway Co. v. Outcalt, 2 Colo. App. 395, 31 Pac. 177; Railway Co. v. Vaughn (Colo. App.) 34 Pac. 264. Upon proof that the animal was killed through the negligence of the defendant, plaintiff would be entitled to judgment 1 Gen. St. c. 93, §§ 13, 14, as amended by Sess. Laws 1885, p. 304, and Sess. Laws 1891, p. 281. for its value, and no more; and, if the cause is tried again, such proof must be forthcoming, or the plaintiff's case must fail. The judgment is reversed. (4 Colo. App. 165) ESTEY v. HALLACK & HOWARD LUM- 1. In an action by a subcontractor to enforce a lien against a building for which he has furnished materials, the contractor is a necessary party. 2. The fact that the property owner proceeded to trial without urging the necessity of making the contractor a party does not waive such irregularity. Appeal from district court, Arapahoe county. Action by the Hallack & Howard Lumber Company against A. M. Estey. There was judgment for plaintiffs, and defendant appeals. Reversed. John R. Smith, for appellant. Benedict & Phelps, for appellees. REED, J. Appellees brought suit to enforce statutory liens against the property of appellant for material furnished in the building of a house. In March, 1890, appellant entered into a contract with one J. B. Smith, whereby the latter was to furnish the material and complete the building according to specifications to the satisfaction of the architect of the former, for the gross sum of $3,185, to be paid.75 per cent. of estimates made May 1st and June 1st, and the balance, with the 25 per cent. retained, to be paid at the completion of the building. Smith entered upon the construction, and prosecuted it until June 1st, when he abandoned it, and left the country, owing the different bills to subcontractors, for which suits were brought. There was no controversy in regard to the facts, the honesty, or amount of the respective claims. Upon the 1st of May appellant paid Smith upon the estimate $250, and upon June 1st $1,125, leaving of the contract price for which Smith was to complete the building, $1,810. After the abandonment by Smith, appellant completed the building himself, according to the specifications, at a cost of $1,961.47. Smith was made a party in the petition, but, having absconded, and his whereabouts being unknown, no service was had upon him, and the parties proceeded to adjudicate the matters without his having been brought in, which is claimed to have been erroneous, and Davis v. Lumber Co., 2 Colo. App. 381, 31 Pac. 187, is cited and relied upon to support the contention. Davis v. Lumber Co., supra, is conclusive of this case. The necessity of making the contractor a party is carefully examined, and discussed fully. The court said: "It has been often held that the contractor was an indis pensable party to the action. With this we agree, and adjudge that the contractor is not only a proper, but a necessary and indispensable, party against whom a debt must be established as the foundation of the decree for the foreclosure of the lien." This conclusion is well sustained by authority. See Phil. Mech. Liens, § 397; Vreeland v. Ellsworth, 71 Iowa, 347, 32 N. W. 374; Kerns v. Flynn, 51 Mich. 573, 17 N. W. 62; Sinnickson v. Lynch, 25 N. J. Law, 317; Pennoyer v. Neff, 95 U. S. 714. The conclusion is founded on principle and sound legal logic. No privity of contract exists between the owner and the subcontractor. The contractor is the primary debtor. If the amount could be collected from him, there would be no resulting claim against the property of the owner. The claim against the property is secondary, ancillary. Not only must there be a primary judgment against the contractor, but there must be an adjudication or settlement of the amount due subcontractors,matters of which the owner can have no knowledge whatever, and, in order to fix the amount for which subcontractors could charge the property, an adjudication or accounting between the owner and the contractor is indispensable. It is claimed that by proceeding to trial without urging and relying upon the want of the contractor as a necessary party the irregularity was waived. In such cases there can be no waiver. A judgment against the contractor is an indispensable prerequisite to a lien upon the property. The owner and subcontractors cannot adjudicate and settle the accounts and equities between the contractor and the subcontractors, nor can they adjudicate and adjust claims and matters between the owner and the contractor. In one case the owner and contractor are the contracting parties, in the other the contractor and subcontractors. The right to the lien is purely statutory, is subsidiary and contingent, dependent upon the enforcing the judgment against the contractor. The owner is not primarily liable. Hence the indispensable necessity of the contractor being before the court as a party to a triangular adjudication, and the necessity, primarily, of a judgment against the contractor as a basis of proceedings against the property of the owner. It follows that the decree in this case cannot be sustained Decree reversed. (52 Kan. 469) HOWARD v. HOWARD. (Supreme Court of Kansas. Dec. 9, 1893.) IMPLIED TRUSTS-PAROL EVIDENCE-FINDINGS PREPARED BY COUNSEL-REVIEW. 1. The defendant had considerable property in the state of Illinois, which she intrusted to her husband for management. The greater part of it was real estate, which was conveyed to him to be held in trust for her. The real estate was subsequently sold, converted into own. money, and turned over to the defendant as her Afterwards they came to Kansas, where the money was invested in real estate by the husband as the agent of the defendant. Although the understanding was that the conveyance was to be made to the defendant, who paid the consideration, the title was taken in the name of the husband without her consent. Held, that under the Kansas statutes a trust resulted in her favor. Held, further, that as the Illinois lands were sold, and the possession of the proceeds was obtained by the defendant, the question of whether the trust in those lands was duly created, and was enforceable under the statutes of Illinois has become immaterial. 2. The facts and circumstances from which the trust resulted were properly shown by parol proof, notwithstanding it tended to contradict the conveyance wrongfully made to the husband. 3. Findings of fact and conclusions of law were prepared and presented to the court, and, after an examination of the same, were adopted by the court as its own. Held, that the fact that they were formulated by counsel at the request of the court is no ground for criticism or objection. 4. The objections to testimony offered should be distinctly pointed out in order that the court may rule intelligently upon them, and unless this is done they are not entitled to consideration upon a review. (Syllabus by the Court.) Error from district court, Atchison county; Robert M. Eaton, Judge. Action by Katharine S. Howard against Salome C. Howard to recover an interest in certain land. The action was consolidated with another action pending against the same defendant, brought by Rondolia C. Clark, and involving the same questions. There was judgment for defendant, and plaintiff Howard brings error. Affirmed. The other facts fully appear in the following statement by JOHNSTON, J.: This was a proceeding to review the rulings of the district court in two cases, which were tried together, and which had for their purpose the determination of the rights of the respective parties in a tract of real estate in Atchison county. The case was submitted to the court upon the testimony offered in behalf of the respective parties, and on June 13, 1889, the court announced its decision orally upon the facts and law of the case in open court, which was in favor of Salome C. Howard. As written findings and conclusions were desired, the court requested her attorneys to prepare such findings and conclusions, which was done, and the court adopted those prepared, and filed them as its own. The findings of fact and conclusions of law are in words and figures following: "Conclusions of fact: (1) That said Katharine S. Howard is the daughter of W. H. M. Howard by intermarriage with her mother, who was divorced in Vermont in 1875, and said plaintiff was 20 years of age in January, A. D. 1889, and has always resided without the state of Kansas. (2) Said Salome C. Howard, defendant, intermarried with said W. H. M. Howard at Beloit, Wisconsin, in 1877, and thereafter they resided at Geneva, Illinois, until August, 1881; (3) prior to such marriage said Salome C. was a widow, and had derived upwards of $50,000 from her first husband's estate, including a mill property at Geneva, Illinois, which had been exchanged for some Chicago property on the basis of $20,000 value, at about the time of the great fire. She had become acquainted with said W. H. M. Howard some two years before her marriage to him, and had mortgaged her Chicago property to raise money for an uncle, and, this property being unproductive, she had thereby become embarrassed, and, having confidence in Howard, she had deeded the Chicago property to him before her marriage, without other consideration than that he was to manage the same in her interest, and realize upon it to the best advantage for her in extricating her affairs from such difficulties. After her marriage she had the Geneva real estate conveyed to Howard upon the same terms, and bad allowed him to use and manage her money and other means upon like terms. (4) Prior to August, 1881, the defendant's said property and means so in the hands of her husband had become greatly reduced and incumbered, and upon the representation of said Howard that he had large means, including estates in England and Ireland, and large personal means in the hands of a trustee in Washington city, and all of which he was unable to use, either principal or interest, for the time being, it was decided that what was left of the Illinois property should be sold out, and a trip should be made to Europe to look after his claimed estates there. The Chicago property had been exchanged for Geneva property, and all the real estate was either sold or mortgaged, and about $10,000 in money realized therefrom, together with the proceeds of the sale of said defendant's piano, library and household furniture, and about $3,000 in money was realized by her upon the final settlement with the heirs of her first husband's estate. (5) The money so obtained, amounting to between $12,000 and $13,000, was taken into the possession and control of the said defendant, and with these means (the said W. H. M. Howard not having any means during his said last marriage other than so derived from the defendant, and she furnishing the means for their expeuses on their travels) they went first to New York city, where said Howard, upon complaint of ill health, gave up going to Europe, and they traveled for some two months in the eastern states, and finally decided to go to Washington city for the winter, to look after his means there in the hands of a claimed trustee. At Baltimore city he changed his mind on account of an invitation from Mrs. Thomas Clark, who with her husband, Thomas, then owned and occupied the said southeast quarter of section four, (4,) town six, (6,) range seventeen, (17,) all in said Atchison county, Kansas, who was then in ill health, and had great confidence in the ability of said Howard (who is a skilled physician and surgeon) to cure her, and started with said Salome C. Howard to visit said Clarks. (6) The defendant and her said husband reached said Clarks in October or November, A. D. 1881, and took up their residence in the Clark family. At this time there was between $10,000 and $11,000 of the said money still in the hands of the defendant, Salome C. Howard, and the balance spent. From time to time the Clark farm was improved out of this money, and other of this money loaned to said Thomas Clark, and the families continued to live together. (7) The defendant had insisted that they should have a farm home, and that her money should be used for that purpose, and meanwhile consented that her husband should use the money to the best advantage, until the opportunity for putting the same into a farm should arrive, and that during this time the money should be held and treated as money, and the title to the farm, when acquired, taken in her name; and she had reason to and did believe, until the death of her husband, that this was done. (S) In January, 1883, Mrs. Thomas Clark had died, and Thomas Clark had a settlement with W. H. M. Howard of the farm affairs growing out of the advancement to Clark of the money of Salome C. Howard, and then gave him a note for $4,000, and a mortgage dated January 22, 1883, on the said two tracts of land, to secure the same, the second halfquarter tract being already under mortgage to A. J. Grover. This mortgage misdescribed the 160-acre tract, and by action in this court said mortgage was reformed in this respect; and later, said Thomas Clark having intermarried with Rondolia C., they together executed and delivered to said W. H. M. Howard a deed, of date November 15, 1883, for the said two tracts of land, the consideration for each said mortgage and deed being advanced out of the said funds of defendant, Salome C. Howard, and it being her desire and understanding at the time that each had been given her in her own name; and such mortgage, decree of court, and deed were duly recorded shortly after their respective dates. (9) Shortly before September 23, 1884, said Thomas Clark and wife separated, said Rondolia leaving the farm, and the defendant has since resided thereon as her homestead. (10) Said No. 4,020 was commenced for the purpose, on the part of said Rondolia C. Clark and Thomas Clark, of setting aside the said deed, and during the pendency of which said Thomas Clark died, leaving said Rondolia C. his widow and sole heir at law; and afterwards, on February 23, 1888, the defendant compromised said action, paying said Rondolia C. $500, and she executed a release deed and transfer, of date February 20, 1888, of all interest in and to all property the subject of such suit, said settlement being in pursuance of stipulation between said Rondolia C. Clark and said Salome C. Howard, filed in said action March |