plaintiff claimed an appropriation of the waters of these streams through Los Ojos, Hull, South Number One, and South Number Two ditches. Water District No. 25 embraces the drainage of Medano and Big and Little Spring creeks. It appears from a decree of the district court of Costilla county, entered at the March term, 1895, and introduced in evidence, that under a statutory adjudication of water rights in that district the ditches in question were awarded different priorities, of specific volumes of water, from Big and Little Spring creeks, dating from March 10, 1875, to May 1, 1881. The ditches of defendants were constructed in 1892 and 1894. The water decree was prima facie evidence that appropriations of water for purposes of irrigation had been made from those streams of the dates and volumes awarded the ditches through which plaintiff asserts his rights, antedating the rights initiated by defendants.

It is next urged by counsel for defendants that the testimony does not establish that the waters of the Medano contribute substantially to those of Big and Little Spring creeks, and that, if they do, it is only by percolation. At the request of counsel for both sides, the trial judge viewed the premises. Whether or not the knowledge thus obtained should be given the effect of substantive testimony we do not determine. We must consider, however, that he was thereby better enabled to understand and apply the evidence of the respective parties on the subject under consideration. Our province in reviewing the testimony is to ascertain whether or not the findings of fact are supported by the evidence. If they are, we cannot interfere by substituting our judgment for that of the trial court upon the weight of the evidence in the case. Iron Co. v. Pryor, 25 Colo. 540, 57 Pac. 51. The testimony is very voluminous, and to notice it in detail would be impracticable. Its review will, therefore, be limited to a mention of those matters which tend to support the finding of the trial judge that Medano creek is the source of supply of Big and Little Spring creeks, for the purpose of ascertaining if there is sufficient legal evidence to support the finding on this subject. Medano creek rises near the summit on the westerly side of the Sangre de Cristo range, and flows southwesterly until, near the mouth of the cañon from which it issues, it is intercepted by a range of hills known as the "Great Sand Dunes," from which point its course is along the base of these hills on the east side, nearly south, until it reaches the south end, where it flows almost west. In this course it unites with Mosca creek, a small stream rising in the same range of mountains. When the water is low, it disappears in the sand of the channel at the base of these hills, sometimes at one point and sometimes at another, regulated in a great degree by the volume of water flowing. 68 P.--28

The sand hills begin at the base of the main range, and at or near this point are several hundred feet in height, several miles in width, and gradually diminish in altitude and width as they extend south, until merged in the San Luis valley. Big and Little Spring creeks rise on the west side of these hills, in a comparatively sandy level immediately adjoining their base. From the point where Medano creek is deflected in its general course, to the source of Big Spring creek, is about seven miles southwesterly, and from the point where the waters of the Medano ordinarily disappear, when high, the source of Little Spring creek is distant about three miles, almost west. The sources of Big and Little Spring creeks are relatively almost north and south of each other, and distant about three miles. Witnesses state that many years ago a welldefined channel of the Medano was plainly visible to the source of Little Spring creek, and that they had seen water running in this channel very close to the head of the latter creek. One witness in particular states that in 1863 or 1864 he had seen the water of Medano running to Little Spring creek. Other witnesses state that this occurred again in 1895. Witnesses also state that a well-defined depression, like an old channel of a water bed, extends from near the source of Big Spring creek in a northeasterly direction for a distance of about two miles, which, if continued in its course. would strike, after passing through the sand hills, about the mouth of Medano cañon; that, whenever the water of Medano creek diminishes, the waters of Big and Little Spring creeks also decline after a lapse of two or three weeks from the time when the waters of the Medano become low; that, when the Medano is muddy, the waters of Big and Little Spring creeks would also be rily, or show discoloration. Witnesses, also state that, since the diversion by defendants from the head waters of Medano creek. there has been a marked decrease in the flow of Big and Little Spring creeks. The general drainage of the country, with the exception of the Medano, is towards the west. According to surveys, the most rapid line of descent from near the mouth of Medano cañon is in the direction of Big Spring creek.

The theory of plaintiff is that the San Luis valley was at one time a great lake, the eastern shore of which was near the present sources of Big and Little Spring creeks; that, when the lake disappeared, the sands of its bed were blown across the valley by the prevailing westerly winds, and deposited upon the wash and drift extending from the base of the main range immediately adjoining the mouth of the cañon of the Medano, and constituting the divide between that stream and Sand creek on the north, and Mosca on the south; that, before this deposit occurred, the natural channel of Me

dano creek extended through this wash and drift in the same general direction of the cañon, which would carry it on a line with the present channel of Big Spring creek; that the accumulation of sand in its original channel finally became so great that the waters were unable to longer cut their way through and over it on the surface, but that they continued to flow or percolate through the coarse sand, gravel, and boulders composing the original bed of the creek, and finally emerged as the source of Big Spring creek; that the obstruction of the old channel prevented all the waters from passing into the valley in that way, and, as the sands gradually accumulated and raised, the excess water flowed over them in a general southerly direction along the eastern base of the sand hills, uniting with Mosca creek, and resulting in the creation of Little Spring creek; that the continuous flow of Mosca creek upon the surface was obstructed by the sand causes, and that the flow of Little Spring creek is practically on and over the ancient bed of Mosca creek. Scientific writers on the geological formations and conditions of the San Luis valley tend to support this theory. The testimony of the witnesses with respect to the present physical conditions within their own recollection also corroborate it. It is known that the channel which formerly existed from the Medano to the head of Little Spring creek has in a great measure been obliterated within the past few years, by reason of the accumulation of sand over its channel, and that the bed of the Medano along the base of the sand hills is being gradually raised from the same source. With the exception of the Medano, after reaching the sand hills, the general drainage of the country is to the southwest. The course of that stream from the point where it intersects the sand dunes is almost at right angles with the course of the gulches and ravines between the cañon of the Medano and Mosca creek, and at an angle of about 45 degrees with the other principal streams issuing out of the Sangre de Cristo range on that side. The material which forms these hills must have been brought from some other point. That this is true is demonstrated by the fact that the process of accumulation of sand on and along them is still in operation. The flow and character of the Medano is reflected in the Big and Little Spring creeks. Experiments, the results of which were introduced in evidence, indicate that it requires about the length of time for waters to pass from the Medano to these streams which intervenes between a change in the Medano and

plied. There is no other known outlet for the waters of the Medano. So that, considering the topographical conditions, in connection with other facts stated by the witnesses, we are not required to enter the realm of conjecture in order to determine a connection between the Medano and the Big and Little Spring creeks, but, on the contrary, the testimony leads irresistibly to the conclusion that the Medano is the source of supply of these streams; that at some time in the distant past the sand hills did not exist, and that during this period the Medano found its way to the valley practically on a line from the mouth of the cañon to the head of Big Spring creek. So with Mosca creek with respect to Little Spring creek. The accumulation of sand in and over the original channels of these creeks, composed, like all mountain streams, of sand, gravel, and boulders, would not render the old channels altogether impervious to water. The interstices of their original beds would not be filled by the sands accumulating on their surface. Water could still find its way along and through their ancient beds. This underground flow. would naturally follow the respective original channels bounded by the original banks, and while its passage may in a great measure be through sand and gravel, nevertheless such a stream, when well defined, is as much a part of the flow of the water of a creek to which it contributes as if visible. Such conditions do not present a case of percolating waters, within the meaning of the law. The subterranean volume of water which finds its way through the sand and gravel constituting the beds of the streams which traverse the country adjacent to the mountains of this section are recognized as a part of the waters of the stream to the same extent as though flowing upon the surface. That the surface bed of such a stream may not be visible does not change the rule with respect to this class of flowing waters. Underground currents of water which flow in well defined and known channels, the course of which can be distinctly traced, are governed by the same rules of law as streams flowing upon the surface. The channels and existence of such streams, though not visible, are "defined" and "known," within the meaning of the law, when their course and flow are determinable by reasonable inference. Platte Valley Irr. Co. v. Buckers Irrigation, Milling & Improvement Co., 25 Colo. 77, 53 Pac. 334; McClellan v. Hurdle, 3 Colo. App. 430, 33 Pac. 280; Kin. Irr. § 48; Gould, Waters. $ 281; Strait v. Brown, 16 Nev. 317, 40 Am. Rep. 497.

In this connection it is urged by counsel for defendants that the waters of Sand creek may possibly contribute to the supply of the waters of Big and Little Spring creeks. Sand creek rises in the same mountain range that the Medano does, and to the north. From the point where the Medano is first intersect

ed by the sand hills, and distant about five miles, Sand creek issues from the main range, flows for a short distance along the base of the sand hills on the west, and then continues in a generally southwesterly course over a bed of sand and gravel, and through a country more or less sandy on either side. It has a defined channel all the way to the San Luis Lakes, but at seasons of low water disappears entirely in the sands of its bed, long before it reaches these lakes. Its general course corresponds with the direction of the cañon through which it flows. It is a well-known fact that lying between nearly all the streams issuing from the Sangre de Cristo range on the west there exists a defined watershed. That such a shed must have originally existed and been visible between the Medano and Sand creek is entirely probable. For the waters of Sand creek through any subterranean channel to reach either Big or Little Spring creek would require a drainage almost at right angles in direction from the natural drainage of the country. That such a condition would exist is not probable. Besides, experience demonstrates that the volume of water of the stream which disappears in the sands of its bed would follow the general course directly underneath the surface of such bed; so that it does not appear there are any facts or circumstances from which it can be reasonably inferred that Sand creek in any way contributes to either Big or Little Spring creeks above the headgates of plaintiff's ditches.

If

It is also urged that a decrease in the flow of these streams may be accounted for by reason of the fact that many artesian wells have been sunk in the valley within the past few years, and that the water thus drawn off may have depleted the supply of these streams. These wells, with the exception of a few, are not in the near vicinity of either of these streams, and all are below and several miles to the west and southwest of the respective springs forming their sources. the water supplying these streams in any manner contributes to the supply found in the artesian wells, we do not see how it would be physically possible for the wells, situated as they are, to deplete the flow at points distantly removed and above such wells. If water flowing through a stratum of sand is diverted at a point below its source of supply, it would not affect its level or flow above that point, any more than a diversion of water from a visible stream upon the surface would affect its flow or volume above the point of such diversion.

It is also urged that injunction is not the proper remedy; that the complaints do not state causes of action; that there is a defect of parties; that the court below was without jurisdiction; and that the decree is erroneous in unqualifiedly prohibiting the defendants from diverting any water between the dates specified.

The injury which the plaintiff was sustaining by reason of a shortage of the waters of the streams which he is entitled to divert and apply to irrigation uses is continuing in its nature. The defendants are responsible for this shortage. His rights antedate theirs. An action at law against them by plaintiff would be wholly inadequate, because it would require a multiplicity of suits to recover the damages which he might sustain from year to year on account of the shortage of waters from Big and Little Spring creeks.

This is an action to protect priorities already established, and not to determine them. Plaintiff states a prima facie case, in so far as it relates to an appropriation of water for the purposes of irrigation, by pleading the adjudication of water rights in the water district in which the streams are situate, and the award to the ditches through which he claims such rights. In pleading this judg ment he has substantially complied with section 65 of the Civil Code, which provides, in effect, that in pleading a judgment of a court of special jurisdiction it is not necessary to state the facts conferring jurisdiction, but such judgment may be stated to have been duly given or made. It is not necessary to literally follow the prescribed formula; it is sufficient if from the averments it appears that the ultimate fact which may be so pleaded is otherwise stated.

A defect of parties must be raised by demurrer or answer. If objection upon this ground be not so taken, it is waived. Section 55, Civ. Code. No question of this character was raised in the court below.

These actions are not statutory proceedings to adjudicate water rights; hence the fact that adjudication proceedings had taken place in the district court of Costilla county did not preclude the district court of Saguache county from assuming jurisdiction of these cases.

Literally construed, the decree does inhibit the defendants from diverting any water between the dates specified. The law, however. reads into the decree that this inhibition only covers such portion of the period between the dates specified that plaintiff has, use for the water for the purposes of irrigation.

The judgment of the district court is affirmed. Affirmed.

On Petition for Rehearing.

(March 3, 1902.)

PER CURIAM. It is claimed that in passing upon the effect of the decree in the adjudication proceedings we overlooked that defendants were not parties to these proceedings. No error was assigned on the admission of the decree. Whatever objection the defendants may have had to its admission in evidence was therefore considered as waived, and the decree treated as having been admitted without objection.

Petition for rehearing denied.

STEELE, J. (dissenting). I cannot agree with my associates in the disposal of this case. I do not think the evidence shows the existence of an underground flow of water through the sand, in any defined or known course, from the Medano creek to either of the springs from which the plaintiff made its appropriations of water. When the Medano emerges from its cañon it flows in a southwesterly direction in a well-defined channel for about a mile and a half, where the channel widens so that three miles above Mosca creek the stream bed is about 600 feet wide, and below Mosca creek it widens to 1,100 feet. The water usually disappears in the sand before reaching Mosca creek, but when the water is very high it flows on the surface to about the point indicated on the map. Former State Engineer Green testifies that there is no apparent loss in volume until the channel of the creek widens. There is no point in the course where the water disappears with a current, and it all disappears at varying distances of from three to seven miles from the plaintiff's springs. Even if it be assumed that a considerable portion of the water from the Medano makes its way to the Big Spring by percolation along an ancient water course, it seems to me that that is merely waste or seepage water, and that the plaintiff is entitled to it as such under its prior appropriations, as against any one taking it from the sands; but that the plaintiff did not acquire the right to have the water in Medano creek run to waste, and the defendants are therefore entitled to use the water from the natural stream, notwithstanding such use may diminish the seepage supply of the plaintiff. The reasons given by the court for the finding that the waters of Sand creek do not contribute to the supply of the Big Spring appear to me to apply equally to the waters of the Medano. It is the merest guesswork to attempt to determine the source of supply of a spring from comparative elevations and the quantities of water flowing in different streams in its neighborhood. There was evidence that the flow of the springs diminished after the sinking of artesian wells and before the defendants took water from the Medano. I think it might well be true that the water table which supplies the artesian wells also supplies the springs, and that the artesian wells affect the springs more directly than the Medano creck does. A copy of plaintiff's Exhibit C, which I have attached hereto, will show more accurately than any written description the points in controversy in this case. The principal elevations necessary to

(28 Wash. 205)

OVERLOCK v. SHINN et al. (Supreme Court of Washington. April 3, 1902.)

ABATEMENT-REVIVAL-MORTGAGE FORECLOSURE SUIT-NEW SUIT BY ADMINISTRATOR-STATUTE-CONSTRUCTION.

1. 2 Ballinger's Ann. Codes & St. § 4837, providing that no action or cause of action which survives shall abate by the death of a party, and authorizing the revival thereof within a year by or against his personal representative or successor in interest, does not preclude the administrator of a mortgagee who has died pending a foreclosure suit from commencing a subsequent foreclosure suit after the expiration of a year, without any disposition being made by the court of the former suit, as the statute does not prevent the action from abating on the mortgagee's death, but only authorizes the continuance of the action within a year by the personal representative.

2. Under the Code practice, the rule that actions abate on the death of a party is as applicable to actions of an equitable nature as to law actions.

Appeal from superior court, King county; Wm. Hickman Moore, Judge.

FUI LERTON, J. This is an action brought to foreclose a real estate mortgage. The mortgage sued upon was executed by the defendants William J. Shinn and May R. Shinn, his wife, to one Emeline Burgett, since deceased, and the respondent sues as administrator of her estate. The action was begun on February 10, 1900. To the complant, which was in the usual form, the appellant, Parker, answered, putting in issue certain of its allegations, and pleading affirmatively the following: "(1) That on, to wit, the 8th day of November, 1895, the said Emeline Burgett, mentioned in plaintiff's complaint, being then and there the owner and holder of the note, coupon notes, and mortgage mentioned in said complaint, commenced an action in the superior court of the state of Washington for King county, in which action the said Emeline Burgett was plaintiff and the defendants in this action were defendants, for the purpose of obtaining judgment upon the note and coupon notes and for the foreclosure of the mortgage mentioned in plaintiff's complaint herein. That in said action this defendant was duly served with summons, and duly appeared and answered. (2) That thereafter, and on the 23d day of January, A. D. 1896, the said Emeline Burgett died; and that neither the plaintiff herein, nor did any other person as administrator of the estate of said Emeline Burgett, or as executor of her last will and testament, or as her representative or

successor in interest, continue said action. (3) That at the time this action was commenced the prior action in this affirmative defense above mentioned, wherein the said Emeline Burgett was plaintiff and the defendants herein were defendants, was and is now pending and undetermined in this court." A general demurrer was interposed and sustained to this affirmative defense, and a trial had on the issues of fact raised by the answer, resulting in a judgment of foreclosure.

The errors assigned raise the question whether an action, the cause of which survives the death of a party, brought by a plaintiff who afterwards dies, is a bar to another action brought by his representative on the same cause of action after the lapse of one year from the time of the plaintiff's death, no disposition having been made of the first action prior to the commencement of the second. The statute applicable to this question reads as follows: "No action shall abate by the death, marriage, or other disability of the party, or by the transfer of any interest therein, if the cause of action survive or continue; but the court may at any time within one year thereafter, on motion, allow the action to be continued by or against his representativés or successors in interest." 2 Ballinger's Ann. Codes & St. § 4837. The appellant argues that the first clause of this section is mandatory, and provides in terms that no action shall abate by the death of a party if the cause of action survives or continues; that the latter clause, permitting it to be continued by the decedent's representative, is permissive only, to be granted or denied in the sound discretion of the court; and, whether it is so continued or not, it is still an action pending, and a bar against any subsequent action on the same cause of action, so long as it remains undisposed of. But we cannot think this is the meaning of the statute. At common law an action abated by the death of a party before trial or verdict, whether such party was plaintiff or defendant. If the cause of action was one that did not survive, death put a final end to the action. If the cause was one that did survive, a new action by or against the personal representative of the deceased party was required to enforce the remedy. The inconvenience resulting from this rule of the common law led to the adoption of the statute, and it is only by statute that the right of a representative to continue an action begun by his principal exists. The statute conferring the right must, therefore, be read as a whole, and effect be given, if possible, to all of its provisions. In the statute before us, while it states in the first clause, as the appellant says, that no action shall abate by the death of a party, it is plain that the second clause is a limitation upon the first. By this second clause the right of the representative to continue the action is limited to one year. Within that time, whether it be a right of the representa

tive to have the action continued or whether it be within the discretion of the court to permit it to be continued, the court may allow it to be done, even against the objection of the surviving party. After that time this right or discretion, whichever it may be, ceases; and the court cannot, after the expiration of the year, permit a representative of a deceased plaintiff, over the objection of the defendant, to continue an action begun by a plaintiff who dies while the action is pending. This much seems clear. It seems clear, also, from the general principles and rules governing the practice in civil cases, that the representative of a deceased plaintiff would not be heard to move for a discontinuance of an action in a case where he would not be heard to move for its continuance. This being true, it follows, if the appellant's contention be sound, that a defendant in a case like the one at bar occupies a very advantageous position. He can prevent the continuance or discontinuance of the original action, and can plead such action in bar of any subsequent action brought upon the same cause of action. Clearly, the statute was not intended to authorize or permit such a condition as this. It was intended to be remedial; to promote justice, not to operate as a denial thereof; and a proper construction of its provisions authorizes the conclusion that an action after the death of a party abates if no application is made to continue it within one year after the death of such party. The cases where this precise question was involved seem not to be many. In so far as they have been called to our attention, however, they support the conclusion we have reached. In Alabama, under a statute almost the exact counterpart of our own, it was held that an action abated if application was not made to continue it within the statutory time. Referring to the statute, the court said: "Its first and main object is to provide for cases where a sole plaintiff or sole defendant dies, or all the plaintiffs or all the defendants die, leaving the suit without a party of record, either plaintiff or defendant. This, if not cured, causes an abatement; for a suit cannot exist without antagonizing parties. In such case, if the cause of action survive, the statute allows eighteen months, and only eighteen months, within which to revive in the name of or against the successor or representative of the deceased party. Failing, the suit abates." Insurance Co. v. Moog, 81 Ala. 335, 1 South. 108. So. in Kansas, under a somewhat similar statute, it is held that, where a party to an action has been dead for so long a time that the action cannot be revived without the consent of parties, which consent is not given, the action abates. Banking Co. v. Ball, 48 Pac. 137. So, in 1 Cyc. Law & Proc. p. 104, it is said: "In states prescribing a time within which applications to continue or revive an action should be made a failure to apply for a continuance or revival within