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No such issue was presented by the plead- these four schedules and arrive at an exact ings, and in our opinion no such theory is average in all these matters, the utter futility justified by the terms of the contract.
of the effort is no longer susceptible of From our examination of the testimony in doubt." Again: “The plaintiff did not give this case we are of the opinion that section the court material out of which to make a 5 of the ordinance is unenforceable, in that schedule; that is, there was no evidence goit is utterly impossible to arrive at an equiva- ing other than to a contention with regard to lent of the average rate prevailing in the the minimum charge. How could the court, three cities mentioned for the same service, on such evidence, make anything else, apply due to the fact that the schedules of rates any doctrine or principle to the minimum prevailing in the three cities are based upon after it was obtained, under the evidence thus such radically different classifications and presented ?" And also: “The appellant only methods of computation, such a diversity of attempted to present evidence as to a miniuses and services, and are so largely deter- mum rate. Taking the evidence before the mined by the judgment and discretion of em- court, nothing else has been attempted by ployés of the water departments, whose duty the appellant, either in pleading, evidence or it is from time to time to inspect, survey, and tables. That is not making a schedule.” assess the premises to which water is fur
As to irrigation rates, there was no effort nished, and upon the reports of these en- whatever made by the plaintiff to introduce ployés the rates to be paid by the consumers any evidence which showed or tended to show are calculated by the employés of the office that rates for irrigation existed in any one upon the schedules of rates prevailing. In of the three cities mentioned. The only efthis conclusion we are abundantly supported fort in this direction was to prove the rates by the position taken by counsel for defend- established in the three cities for sprinkling int in his brief: "We spent a number of sidewalks and streets and washing windows weeks in the trial court-many people spent | by means of a hose. The witnesses who tesweeks elsewhere, so we are told-in attempt- tified for plaintiff from the three cities mening to arrive at an average. We said that tioned candidly admitted that irrigation, as it could not be made. We say to-day that
understood and practiced in this country, was it cannot be done. What better proof or unknown in either Chicago, St. Louis, or Cindemonstration of that fact is required than cinnati; so that it appears by the only testithat schedule after schedule, no two ever mony introuced by plaintiff that no schedule agreeing, are tendered by the same plaintiff, of rates existed in either one of the three under the oath of the same man, and figured cities for this service. And the court so by the same accountant. If it could be done. found. Finding 11: "That the same service if it was a mathematical proposition, no two designated as irrigation of lots in Schedule men should differ upon it, and certainly one A, which is attached to and made a part of man should not differ from himself. There the contract of April 10, 1890, does not exist is an inherent difficulty in the question, not put in either the cities of Chicago, St. Louis, or there by the intention of anybody, perhaps, Cincinnati." The court, in closing its discousbut existing, it cannot be avoided or escaped ; sion of "irrigation rates" in its opinion, says: and that is that the three cities are so diverse "We would therefore, in view of what apin their methods and their classifications that
pears to us sufficient in the evidence, pleadyou cannot put the three together and make ings, and contract, decide that the classificathe comparison Mr. Scobey told us of, and in tion as to irrigation is not subject to change, his report he reported to the city council, and while the evidence would justify us in and we called his attention to it when upon raising the rate for irrigation, if such classithe stand, that anybody would say it was an fication were found in the other three cities, easy matter to add three figures together, and we are led to conclude that the rate charged divide by three, and get an average; but, as in the leaflet since November 1, 1895, is just, he then reported, that is not what is to be fair, and reasonable, and the rate will redone. We find in St. Louis the room as large- main at 22 cents per foot front." As before ls the basis of the charge; we find in Chicago stated, the question of reasonableness, fairthe front as largely the basis of the charge : ness, or justice of the schedule of rates adoptwe find in Cincinnati either rooms in resi- ed by the defendant was not in issue, and dences or floor space in stores and offices; cannot be made a basis of determination of and how they get these together, or to unite what such rates shall be, under the express them so we can say this is the charge in Cin- terms of the contract set out in section 5 of cinnati, or the thing covered by a specific the ordinance of 1890; and such section does charge in St. Louis or Chicago, is a difficulty not except from its operation "irrigation with which they had wrought, with the re- rates," so that the court, as shown by its sult they could not come to a conclusion." opinion, departed the issue presenteri, and To quote again: "Having tested, just as we promulgatoil a schedule of rates for irrig: tested in the courtroom throughout the many tion, without any competent evidence whatweeks of the trial, the inability of any ac- ever sustaining or tending to sustain such countant, howerer fair and unprejudiced and schedule. accomplished he might be, to go through From an exhaustive and laborious ex
amination of the evidence in this case we arrive at the conclusion that the schedule of rates, with the exception of "meter rates." promulgated by the court in its decree, is not sustained by the evidence in the record, and that with reference to more than twothirds of the items in the schedule there is no competent evidence in the record even tending to support the schedule of rates de(reed by the court, and that from the evidence in this case it is absolutely impossible to determine a schedule of rates which shall be the average of rates promulgated in the cities of Chicago, St. Louis, and Cincinnati for the same service, using the words "for the same service" as meaning the items of service proviiled for and set out in "Schedule A," which is a part of the contract of 1890 existing between plaintiff and defendant in this case. The schedule of meter rates promulgated by the court seems to be based upon sufficient competent evidence to justify the conclusion that it should be sustained, and we believe that a fair construction of the terms of section 5 of the ordinance of 1890, above quoted, would permit any customer of the water company to install a meter, and pay for the water consumed according to the schedule of meter rates promulgated by the court.
The amended complaint alleged that the rules adopted by the water company for the assessment and collection of its water rates were arbitrary and unreasonable. The answer denied that its rules and regulations were arbitrary or unreasonable, alleged that they were such as had been in force and effect under its predecessor and prevailed at the time of the adoption of the ordinance, or had been adopted by it subsequent to its acquisition of the property, pursuant to the rights conferred upon it by the ordinance. Section 4 of the ordinance provided, in effect, that the water company should at all times furnish water from its mains to premises abutting upon the streets in which mains have been laid, "under such rules as now prevail and such further reasonable rules as as it may prescribe.” Finding 6, above set forth, is to the effect that the rules and regulations of the water company were not harsh, oppressive, or unreasonable. The testimony in the record abundantly supports this finding of the court.
The amended complaint further alleged that the obligations of the defendant company, under the ordinance, applied to the additions of Colfax, Ilighlands, South Denver, and Barnum, and that the company was bound, under the terms of the ordinance, to furnish water to private consumers in the above towns under the requirements of the ordinance. Section 1 of the ordinance granited the water company the right and pririlege of laying its mains in the streets, aremues, alleys, and public places of the city of Denver "and additions thereto." In answer
. to this the defendant denied that the obliga
tions of the contract applied or related to the additions, Colfax. Highlands, South Denver, and Barnum, and alleged that those additions, or cities, at the time of their annesation to the city of Denver, and the private consumers thereof, were supplied with water under separate and independent contracts, and not under the contract of April 10, 1890: that the annexation or addition of the said cities or towns to the city of Denyer could not abrogate the contracts or change or alter the same in any respect or particular whatever. The evidence in the record abundantly supports the defense pleaded by the defendant company, and for this reason finding 10 hereinbefore set forth is sustained.
Our conclusion is that the findings of the court fixing the schedule of yearly water rates, except meter rates, to be charged by the defendant company to its private consumers of water, and all other findings relating to the same subject, are not sustained by the evidence as found in the record, for the reasons herein stated, and that the decree of the court upon what is known as the first cause of action must be reversed, except as to meter rates.
The basis of the second cause of action alleged in the second amended complaint is the failure upon the part of the defendant to keep, observe, and perform its duties, undertakings, and agreements imposed upon it by section 6 of the ordinance, which is as follow's: "Sec. 6. The said the Denver Water Company shall at all times furnish water to the city and to private consumers of a quality as good and fit for private consumption as that shown by the analysis made by order of the city of Denver by Prof. Joseph A. Sewall, in the month of August, 1889." In support of this contention it was further alleged that the deaths in Denver, due to typhoid fever, very largely increased in 1896 over 1893, and were very much larger than the death rate from the same cause in other cities named, and that this increased death rate was directly traceable to the use of impure water supplied by the defendant. The different sources of supply utilized by the defendant in its water system were specified, and it was alleged that the water taken from what was known as "Marston Lake" and from the Platte river and turned into the Mississippi street galleries was the contaminated, impure, and unwholesome water introduced by the defendant into its waterworks system, and that such contaminated water, by reason of the fact that it was introduced into all parts of the system, rendered all of the water sulplied by the defendant to the city of Denver and its private consumers impure, unwholesome, and unfit for domestic use. Thus the issue was limited to two sources of supply, viz.. Marston Lake and the Platte river
, above the Mississippi street galleries. The defendant's answer was a general anıl spiecific denial of all the allegations of the complaint, and also allegations to the effect that
the city had failed and refused to keep its pounds." The defendant denied the material part of the contract, by failing and refusing allegations of the complaint as to this cause to pay the defendant hydrant rentals as pro- of action, and further alleged that plaintiff vided for by the ordinance. In the view had failed and refused to keep the obligawbich we take of this case, the latter allega- tions imposed upon it by the ordinance, in tions are immaterial, and will not be con- that it failed and refused to pay the hysidered. The plaintiff's reply denied all of drant rentals provided for by the ordinance, the material allegations of new matter con- and that plaintiff, at the time of the suit, tained in the answer.
was indebted to the defendant on account of The taking of testimony upon the issue such rentals in the sum of over $115,000), presented by the pleadings upon the second and that the plaintiff had failed to comply cause of action continued through several with other provisions of the ordinance by it months and occupies about 1,400 pages of the to be kept and performed, which are unnecsupplemental abstract filed by the defendant essary to be stated or considered, in the in error. July 8, 1898, the court made its view taken of the disposition to be made of findings upon the second cause of action in the main issue presented by this cause of acfavor of defendant, and rendered its decree tion. The answer also alleged that at the thereon dismissing the second cause of ac- date of the execution of the contract of April tion, at the costs of plaintiff. It is imprac- 10, 1890, its predecessor, the Denver Water ticable to review the testimony taken upon Company, was pumping water by steam this cause of action, and we cannot conceive pumps and plants into and through its lowest that it would accomplish any good purpose mains to the higher points in the system; to make an attempt to do so. The testimony that the hydrant in front of the Union Depot has been considered with great care, and it was at or near the lowest point in its system; seems to us that the findings of the court that during the year 1891 the system was and the decree based thereon are amply war- changed from a pumping system to a gravity, ranted by the testimony preserved in the rec- system, by which latter system the water ord. A mass of expert testimony was intro- was introduced into the mains at the highest duced, which was conflicting, as all such tes- point in the system, by mains connected with timony is; but we are justified in saying its elevated reservoirs, standpipes, and storthat the plaintiff utterly failed to sustain age basins, thereby maintaining a constant, the allegations of its complaint as to the im- abundant, and inexhaustible supply of water purity and unwholesomeness of the water throughout the whole system ; that the diamwhich was being supplied by the defendant eter of its mains under the gravity system to the city of Denver and its citizens for the had been largely increased; that the quantiperiod of time alleged in the complaint and ties stored by defendant in its various reserfor the period of time which the testimony | voirs, after the adoption of the gravity syscovers.
tem, had been largely increased, thereby inAs to the third cause of action, it was alleg- suring to the city of Denver a much larger ed that the defendant had not kept or perform- and a more uniform and steady supply of ed the duties imposed upon it by section 8 of water throughout its whole system; that the ordinance, which is as follows: "Sec. 8. the change from the pumping system to the The said company shall at all times until the gravity system was with the knowledge, con1st day of May, 1891, keep and supply the said sent, and approval of the plaintiff; that at hydrants with an abundant supply of water the time the contract was entered into by for fire purposes under such pressure as it now the predecessor of defendant the quantity of gives, and after said 1st day of May, 1891, water supplied the city of Denver was about shall supply all of said hydrants and any 14,000,000 gallons per day; that the quanhydrant which may be ordered to be set upon tity of water supplied by the defendant at additional mains, as hereinafter in this ordi- the time of the trial was from 25,000,000 to nance mentioned, with a pressure equivalent, 45,000,000 gallons of water per day. The taking the elevation of the surface of the reply of plaintiff put in issue the allegations ground into account, to one hundred and fif- of new matter in the answer. teen pounds at the hydrant in front of the The evidence in the case clearly established Union Depot in said city; provided, the city the fact that the pressure at the Union Deshall not be in default with the company pot was not 115 pounds per square inch, as upon any of its agreements; and provided, required by section 6 of the ordinance, and further, that if, owing to the extension and
that such pressure had not been maintained growth of the city, bydrants shall be ordered since the change was made from the pumpupon locations where, owing to the difference
ing system to the gravity system. It also apin elevation, there shall be less than forty- peared by the evidence that the city and its five pounds pressure, with a pressure of one officers were fully advised of the change hundred and fifteen pounds at the hydrant in which had been made by the defendant in its front of the Union Depot, to the number of system, that they consented to such change, fifty or more, the said company shall put and that, when it was suggested by the desuch hydrants upon a separate high service, fendant that a change should be made back and keep and maintain on each of said lay- to the pumping system, such proposed change drants a water pressure of not less than fifty was violently opposed by the then mayor of the city, who said that he never would sumers by the defendant, the Denver Uniol consent to such change if he could prevent Water Company, and the decree based thereIt. The evidence also clearly showed that by on, are not sustained by the evidence inthe change from the pumping system to the troduced at the trial, for which reason the gravity system, by the enlargment of the decree as to the first cause of action, except mains of the water company, and by the in- as to meter rates, must be reversed. creased supply of water stored in its vari- Affirmed in part. Reversed in part. ous reservoirs, a very much larger supply of water was furnished the city for use in case
STEELE, C. J., concurs in the foregoing of fires and conflagrations than was furnish- opinion, except that he is of the opinion that ed at the date of the adoption of the ordi
the provisions of section 5 of the ordinance nance. The testimony of an expert witness
of 1890 are enforceable. CAMPBELL, J., as to the relative efficiency of the two sys
not participating. tems, set forth in the abstract, is: “Under the old system the hydrant at the Union
(40 Colo. 332) Depot was supplied by a 6-inch pipe 260
In re HOBSON'S ESTATE. feet long, which was fed by a 10-inch pipe, and under 115 pounds pressure the supply un
HOBSON v. HOBSON'S EX'R et al. der this pumping system would be 2.820 (Supreme Court of Colorado. July 1, 1907. gallons per miute. To-day the hydrant is
Rehearing Denied Oct. 7, 1907.) supplied by 60 feet of 6-inch pipe, fed by an I. WILLS – RevoCATION - AFTER-Borx CHIL18-inch pipe, and that under 85 pounds pres
DREN - STATUTORY ELECTION BY WIDOW —
EFFECT. sure would give 5,163 gallons per minute.
The will of a testator leaving a widow Practically 2,300 gallons more furnished on made no provision for her nor for a child born the pressure of the present system than the after his death, nor manifested an intent to
disin herit the child. The widow elected to take 115 pounds of the former system.” This tes
under the statute. Held, that the will was not timony, taken in connection with that of a
revoked, but its provisions were nugatory, and former chief of the fire department, which the wife and child were each entitled to a half was to the effect that recent large fires bad of the estate. demonstrated that an abundance of water
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 49, Wills, $ 408.] was furnished, and that fires of any consequence could not be successfully handled
2. EXECUTORS AND ADMINISTRATORS — CLAIMS
-PRESENTMENT FOR ALLOWANCE. without steamers to give the pressure, which The manner of exhibiting claims against cannot be obtained by any other means, not estates of decedents, prescribed by Mills' Ann. even if the pressure at the Union Depot St. § 4787, requiring the filing in court of the
instrument whereon a claim is founded, is examounted to 140 or 150 pounds, which testi
clusive, and the original note on which a claim mony was uncontradicted, justifies the con- is founded, and not a copy, must be filed, and, clusion, arrived at by the court below, that unless that is done within a year from the the defendant had complied with that provi
granting of letters testamentary, the claim is
barred under the express provisions of section sion of the contract which required it to
4780. furnish an abundant supply of water which 3. SAME-AUTHORITY OF EXECUTOR. should be the equivalent of a pressure of 115 An executor, being a representative of the pounds to the square inch at the hydrant in
estate, cannot act as the agent of a claimant
in presenting a claim for adjustment. front of the Union Depot. It abundantly ap
(Ed. Note.--For cases in point, see Cent. Dig. pears from the testimony that the water
vol. 22, Executors and Administrators, 8 20.] supply of defendant, stored in its reservoirs
4. SAME-FAILURE TO PRESENT CLAIM-Exat the time of the suit, was many times the
CUSE. supply maintained by the Denver Water The failure of an executor to comply with Company at the time the contract was en
the request of a claimant to present a claim
founded on a note delivered to the executor tered into, and that the company bad kept
is no excuse for the claimant's failure to file pace with the growth of the city, so far as his claim as prescribed by Mills' Ann, St. $ its supply of water was concerned. The find
4787. ings of the court below were to the effect
(Ed. Note.-For cases in point, see Cent. Dig.
yol. 22, Executors and Administrators, 8 830.] that from the evidence it appeared that the
5. SAME-OBJECTIONS. defendant company had not failed to comply
Under the statute authorizing the heirs with the requirements of section 8 of the
and beneficiaries of a decedent to object to the ordinance, and its decree based upon such allowance of a claim, and providing that a findings, as to the third cause of action, dis
contested claim shall be determined in the same missed the complaint at the costs of plain
manner as in actions before justices of the peace,
a general objection by the widow in her own tiff.
behalf, and as guardian of an infant child, to the The findings of the court upon the second allowance of a claim founded on a bote, a copy and cd causes of action were sustained by
of which was filed, was sufficient, and the de
fenses of limitations, and of the failure to file the evidence introduced at the trial, and its
the note itself, were available. decrees, based thereon, will be affirmed. For
6. LIMITATION OF ACTIONS-FAILURE TO SUE the reasons stated, the findings of the court -EFFECT. below as to the first cause of action, so far
Where a note was not exhibited as a claim
against the estate of decedent, and more than as the same relate to a schedule of rates,
six years had elapsed since it became due, the except meter rates, to be charged private con- | claim was barred by limitations.
Appeal from District Court, Pueblo County ; the return day, presented the affidavit and N. Walter Dixon, Judge.
filed it in the county court.
The executor Proceedings by E. B. Hobson for the allow- then, and for more than two years thereafter, ance of a claim against the estate of George had in his possession the original note. When H. Hobson, deceased, in which the widow in the affidavit was filed on adjustment day, the her own behalf, and as guardian of a minor attorney for the widow, acting in her own be child of decedent, filed objections. From a half and as guardian for the minor child, objudgment disallowing the claim, claimant ap- jected to the allowance. It was a general peals. Affirmed.
objection; notbing being said as to the manW. E. So Relle, Guy Le R. Stevick, and L.
ner of presenting the claim, or that a copy of
the note was filed instead of the note itself. A. Crane, for appellant. J. H. McCorkle, for
The county court retained jurisdiction over appellee.
the estate until August 26, 1902, when an
order was made transferring all papers and CAMPBELL, J. George H. Hobson died all matters connected therewith to the distestate October 2, 1900, leaving a widow. A trict court, because the judge of the county child was born after his death. The will did court had been an attorney for one of the not make any provision for either, or mani- devisees. During the entire time the county fest an intention to disinherit the child. It court had jurisdiction the claimant took no was admitted to probate in the county court steps whatever toward securing action upon of Pueblo county November 19, 1900. On the his claim, further than filing a copy of the same day A. W. Hobson, a brother of the tes- note, and the record does not show that any tator, so designated in the will, was duly ap- order of continuance from term to term was pointed executor, and letters testamentary made in the matter of its adjustment. Nearwere granted to him, and he thereupon qual- ly eight months after the venue was changed ified. Three days later the widow renounced to the district court, April 22, 1903, the claim under the will, and elected to take under the came on for hearing on the written objections statute, the effect of which and the birth of of the widow, guardian, and one of the devi. testator's child after the making of the will, sees, filed April 8th, in which the executor though not revoking that instrument, ren- orally joined on the day of the hearing. The dered its devises and legacies nugatory, and record does not show that the hearing was the wife and cbild became entitled each to the result of notice given to the executor by one-half of the property of the estate under the claimant, as the statute prescribes, but our statute. The executor gave the statutory the claimant and the objectors were present notice to persons having claims against the in court either in person or by counsel. estate to present them for adjustment on the Only two of the objections interposed will 4th day of February, 1901. On that day be discussed, as they are the ones upon which Edward B. Hobson, a brother of testator, filed the court rightly, as we think, disallowed the in the county court an affidavit stating that claim: (1) The claim has never been exhe owned a promissory note executed and de- hibited against the estate by filing the writlivered by George H. Hobson during his ten instrument upon which the same is foundlifetime to the claimant, and that the same ed in the county court or the district court, to was a just claim against his estate; the which the administration proceedings were affidavit setting forth a copy of the note, transferred, and, at the time of the hearing, which purported to have been executed Feb- more than one year bad elapsed from the ruary 2, 1895, for $13,000, payable on demand granting of letters testamentary. Hence the after date, without interest until paid. From claim is barred by the statute of nonclaims an offer of proof made by the claimant at (section 4780, Mills' Ann. St.), unless the the trial concerning the time at which it claimant shall find other estate of the testawas made there is some dispute, but which, for tor, not inventoried or accounted for by the our present purpose, we shall assume was sea- executor. (2) That, since more than six years sonably made it appears that the claimant, have elapsed since the accrual of the cause Edward B. Hobson, several days before the of action upon the alleged promissory note day fixed for adjustment, sent the original before the commencement of proceedings for note upon which the claim is founded to the its allowance, the claim is barred by the genexecutor, with a request that the latter should eral six-year statute of limitations. take such action as was necessary to have Section 4780, Mills' Ann. St.,, declares that the claim properly filed and allowed in the demands against an estate of this character court and paid out of the estate's assets; that shall be exhibited within one year from the the executor agreed to take such action, and granting of letters testamentary or of adthereupon sent to the claimant, who resided ministration, and, if not exhibited within in California, a copy of the form which had that time, shall be forever barred, except as been used by holders of other promissory to property of the decedent not inventoried or notes against the estate, and which had been accounted for by the executor or administrafiled in, and allowed by, the county court. tor. Section 4787 reads: "The manner of Employing this form, the claimant.prepared | exhibiting claims against estates shall be by and swore to the claim, and forwarded the filing in the county court the account, or writing to the executor, and the executor, on instrument of writing,