ter v. Hermann, 8 Cal. 625; Smith v. Aurich, supra. Since our practice does not require a copy of the complaint to be served with the summons, the reference to this pleading in no way aids the defective description. Smith v. Aurich, supra. In two particulars, therefore, this summone is radically defective; such a process will not sustain a judgment by default. It fails to confer jurisdiction, and the proceedings subsequent to the service thereof, if there be no waiver, are a nullity. Smith v. Aurich, supra; Porter v. Hermann, supra; People v. Greene, supra; State v. Woodlief, 2 Cal. 241.

The special and limited appearance of defendant for the purpose of moving to quash, did not cure or waive the defects. It appears, then, from an inspection of the record itself, that the court acted without jurisdiction of the person, and that the judgment is therefore void. The presumption in favor of the jurisdiction of courts of record is in this instance negatived by the record itself. Israel v. Arthur, 7 Colo. 5; S. C. 1 PAC. REP. 438.

For the foregoing reasons the judgment must be reversed. But there is another matter which should be noticed. The default was improperly entered; two motions of defendant were pending, and under section 150 of the Code a default could no more be entered than if an answer had been filed. The statute mentioned authorizes a default only upon failure to file an answer, a demurrer, or motion within the time specified. Striking defendant's motions from the files two weeks after entry of default did not remedy the error. If we presume that this action was taken upon notice to defendant, and was regular in all respects, it could not relate back to the default and cure the illegality arising by the entry thereof. And no subsequent default was demanded or entered of record. The judgment is reversed, and the cause remanded.

(8 Colo. 192)

BUSH and others v. FINUCANE, for use, etc

Filed March 20, 1885.

CONTRACT-ENJOYMENT OF BENEFIT OF ANOTHER'S WORK-RECOUPMENT.
A party having enjoyed the benefit of another's labor and money by occupy-
ing premises which he had agreed to erect, cannot deny the latter's right to be
paid, although the work was imperfectly performed. The latter claim should
be pleaded in the way of recoupment.

Appeal from county court, Arapahoe county.
Bentley & Vaile, for appellants.

James H. Brown, for appellee.

HELM, J. This action was originally brought before a justice of the peace to recover a balance of $65 claimed to be due for labor performed and material furnished in erecting a certain structure at Broadway park, near Denver. It was afterwards tried de novo in the county court, on appeal, without the intervention of a jury. We have before us, therefore, neither written pleadings nor instructions to a

jury. Plaintiff recovered a judgment of $50. The defense is that there was a special oral contract for the shed or building, and that plaintiff failed to comply therewith.

Appellee's first objection, that the judgment cannot be reversed because no exception was reserved thereto, is based upon a misapprehension of facts. The printed abstract fails to mention such an exception, but the transcript on file in this court shows that it was duly reserved. The special contract is sufficiently established, and the testimony shows without contradiction that in at least one particular there was a material non-compliance there with. The building was to be "battened all around," but the backside and ends were not battened at all. Other defects were complained of. It is, however, unnecessary to notice them here.

The evidence is extremely meager, and in some particulars highly unsatisfactory; but we think it establishes an acceptance by defendants. There is nothing to indicate a refusal to receive and occupy the structure, while the testimony of four witnesses, including that of both defendants, shows that it was in use for sheltering horses and buggies. This was the very purpose for which it was constructed. Having occupied and used the building, thereby voluntarily receiving the benefit of plaintiffs' labor and expenditures, defendants will not, under the circumstances of this case, be heard to deny his right of recovery. Defendants objected to the character of the work, and cannot be held to have waived a right to damages in the matter of battening, at least; but these damages were a proper subject of recoupment. The county court deducted $15 from the contract price; and, in the absence of any testimony showing the amount of defendants' injury on account of non-compliance with the agreement, we must presume that the sum so fixed upon was sufficient.

The judgment is affirmed.

(8 Colo. 131)

PLATTE & DENVER DITCH Co. v. ANDERSON.
Filed March 24, 1885.

1. OBSTRUCTION TO STREET-SUIT BY INDIVIDUAL-GIST OF THE ACTION.
For any obstruction to streets, not resulting in special injury to the individ-
ual, the public only can complain; and in a suit by such individual the special
injury to him is the gist of the action.

2. SAME-DITCH LAWFULLY EXISTING-RESPONSIBILITY OF PROPRIETORS.

A ditch existing by lawful authority, its proprietors are not liable for damages resulting from such existence of the ditch ipso facto.

3. SAME-PURCHASER OF LOT-MEASURE OF DAMAGES,

When one buys a city lot bordering upon ground set apart or dedicated to any public use, he takes it subject to all the annoyances incident to the purposes of the dedication. The probability that but for the propinquity of the ditch such lot would have enhanced in value can never be a proper measure of damages.

Appeal from superior court of Denver.

Vincent D. Markham, for appellant.
Browne & Putnam, for appellee.

STONE, J. This was a suit by the appellee, Anderson, against the company and its lessees for damages to his premises, caused by the maintenance and operation of the ditch, and to have the said ditch abated as a public nuisance. There was a jury verdict of $500 damages for appellee, upon which judgment was rendered accordingly, and as our decision rests partly upon the failure of the evidence to make out a case under the averments of the complaint, a statement of the substance of the complaint and evidence is permitted, to a clear understanding of the case.

Appellee, as plaintiff below, averred:

(1) That he is the owner in fee-simple of a certain half lot of ground, and that he purchased the same August 18, 1877.

(2) That he paid $1,150 therefor, with the house thereon; that he has further improved the premises to the value of $250; and that but for the injuries hereinafter mentioned the property would be worth the sum of $4,000. (3) That the premises abut on Eighth street, a public street of the city of Denver.

(4) That all of said street has at all times been necessary to the convenient use and enjoyment of said premises, and for ingress and egress to and from the same by him and his grantors.

(5) That ever since his purchase he has occupied the brick house thereon for a dwelling, with his family, and that all the said premises can be only fully enjoyed by the free and uninterrupted use of said street.

(6) That at all times it has been the duty of the city to keep in repair and free from obstructions the streets, alleys, etc., including said Eighth.street, for travel, and for easy access to and from the premises of abutting lot-owners. (7) That on the eighth of October, 1861, the defendant company was incorporated under the laws of the territory of Colorado, for milling, manufacturing, etc., purposes, and during that year, without any authority from the city or property owners, constructed a ditch along said Eighth street, in front of the premises now owned by the plaintiff, and thence hitherto have “unlawfully maintained said ditch, thereby obstructing ingress and egress to and from plaintiff's said premises;" that since plaintiff's purchase the defendants håve “largely increased the size and capacity of said ditch, and the depth and width of water therein," and thereby encroached upon the sidewalk in front of said premises, and that said enlargement was made unlawfully.

(8) That the water in said ditch is now of the width of 12 feet, and of the depth of 5 feet, "exposing to danger persons and especially children residing in the vicinity," wholly interrupting travel except on the opposite side of the street, “and also endangering plaintiff's premises from overflow."

(9) That defendants are managing and controlling the said ditch for their use in operating large flouring-mills; that they have enlarged the ditch over and upon the sidewalk fronting plaintiff's premises, and are continually increasing the width through said street; that the rapid flow of water is washing the banks away; that the premises of plaintiff are encroached upon, and the soil endangered; that such acts are continuing, and will continue so long as the ditch remains in the street.

(10) That said street is one of the public streets of Denver, a city of 50,000 inhabitants, and that "a large uncovered ditch in one of the streets of said city is a public nuisance," endangering the health and lives of the public, and interrupting the street as a highway.

(11) That defendants have never had license or grant from the plaintiff or his grantors, or from the city, or from the legislature of the territory or state, to construct, enlarge, or maintain the ditch through and along the street in

front of said premises; that plaintiff is the owner in fee of the street in front of his premises to the middle thereof, subject to the use of the public as a highway; and that he is entitled to the unobstructed use of all of said street in common with the public.

(12) That great and irreparable injury will of necessity daily accrue to plaintiff's premises by the continuance of said ditch along said street, and that there is no adequate remedy at law. Wherefore plaintiff demands judg ment against the defendant: First, for a preliminary injunction, pending this action, restraining the continuance of the ditch in this street; second, that on final hearing the ditch be abated as a nuisance, and the street restored to its condition as before the ditch was constructed; and, third, for $2,000 damages, and costs.

The answer of defendants put in issue all the material averments of the complaint, and it was stipulated between the parties that the plaintiff is the owner of the premises as alleged, and that he purchased the same August 18, 1877; that defendants' ditch company incorporated October 8, 1864; that it constructed the ditch in that and the next year; and that the defendants, and their grantors and lessors, have used the same ever since.

The relief prayed by the plaintiff, as will be seen, is partly legal and partly equitable in its nature. But since the court below made no decree respecting the equitable relief prayed, the injunction against and abatement of the ditch, nor was there, so far as the record shows, any finding or verdict relating to the alleged character of the ditch as a public nuisance, we need only consider such matters as affect the judgment for damages in favor of the plaintiff.

In a private action for a public nuisance, special damages must be averred and proved. Smith v. McConathy, 11 Mo. 517. The plaintiff in such case has the same right, and no more, as in case of a private nuisance. The rule is well settled that for any obstruction to streets, not resulting in special injury to the individual, the public only can complain; and in a suit by such individual the special injury to him is the gist of the action. McDonald v. English, 85 Ill. 232. Where the action is for injuries sustained by a public nuisance, there must be a specific averment of the special damage, and the defect of such omitted averment is not cured by verdict; for, since the special injury is the gist of the action, unless alleged and proved, no cause of action exists. Wood, Nuis. § 829, and authorities cited.

Tested by this rule as to the requisites of a complaint in such cases, the complaint in this case furnishes very little foundation for the judgment, even if its averments had all been proved. A careful examination of said complaint fails to disclose any averment of injury or damage peculiar to the plaintiff, except the rather indefinite allegations in the eighth and ninth counts, respecting the water in the ditch "also endangering the safety of plaintiff's home and premises from overflow therefrom;" that the defendants have, during the last two years, enlarged the ditch, and extended the bank over and upon the sidewalk in front of plaintiff's premises; and that, "from

the rapid flow of the large body of water passing through said ditch, the banks thereof are continually being washed away, and the said property of the plaintiff encroached on, and the structures thereon erected, and the soil thereof endangered." Even these allegations failed of proof upon the hearing. It was conclusively shown by the testimony that neither the depth nor width of the ditch at this point had been enlarged since the plaintiff had owned said premises; that no overflow upon said premises had occurred; and that the sidewalk had not been interfered with by washing, as in the complaint averred, and was quite the full width of 12 feet, and but slightly obstructed on the outer edge by dirt thrown upon the bank when the ditch was annually cleaned.

The substance of all the testimony heard in the case, as presented by the record, is as follows:

TESTIMONY OF PLAINTIFF.

The ditch is about twelve feet from the line of my premises; it is four feet wider now than when I purchased, and the water is eighteen inches deeper. My property has decreased in value more than half on account of the maintaining of the ditch there; the property would be worth $4,000 if there was no ditch operated in front since my purchase; worth very little now; say $2,000. The ditch obstructs thirty feet of the street. I have put a foot-bridge across. Two of my children fell into the ditch; were pulled out; not hurt; several others in the neighborhood fell in; one was drowned. The sidewalk is higher than the lot; I filled up the sidewalk in front to prevent flooding the premises; the sidewalk is twelve feet wide; not over six or seven feet of it clear now, on account of dirt thrown on it from clearing out the ditch. The ditch overflows there, but not upon my premises.

Cross-examination. It is about thirteen feet from my front line to highwater mark on the ditch bank; the bank is a foot higher next the ditch than the sidewalk. The water is three and a half feet deep now in the ditch on an average. I lived there a year before I bought. I rented the place then. The defendant Davis treated me well; asked me to protect the bank there; I did so before and after my purchase, up to last spring. Had some trouble with Davis last spring; this suit grew somewhat out of that trouble; I wanted to find out what right-what law-he had to be there. I put a foot-bridge there in 1878; the same one is there yet; the same timbers reach across it yet; there is a bridge near there for wagons.

McGilvray testified that in his opinion the maintenance of the ditch would be an injury to the property of plaintiff.

Foot testified that the ditch is cleaned out every spring, and is wider than it was formerly; that it is unsafe for children.

Dr. Burdsall testified: Eighth street was used when this ditch was made; should think this property would be decreased in value one-third by the ditch running along there.

Cross-examined. I mean that if the ditch had never been made, the property along there would be worth one-third more than it is. It is worth that much more on Ninth and Tenth streets, where there is no ditch. Don't know anything about the ditch in this particular neighborhood.

Harrington, witness: The ditch appears somewhat wider, and the sidewalk a foot narrower, than seven years ago.

Pomeroy: Think this property has been injured by the maintenance and operation of the ditch in the last six years, but cannot say to what extent.