borers from requiring of them an unreasonable number of hours of work in a calendar day, and to fix the number of hours that should constitute a day's work for such miner or laborer and entitle him to a day's wages, and not to punish the miner or laborer who, as in this case, should voluntarily perform more than eight hours labor in the mine in a calendar day. In a case arising under the statutes of Utah, which are somewhat similar to ours, in which case an employer was prosecuted for unlawfully employing one to work in a mine for the period of 10 hours each day, the Supreme Court of the United States quotes and expressly concurs in the language used by the Supreme Court of Utah, as follows: "The Legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employés, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them." Holden v. Hardy, 169 U. S. 366, 397, 18 Sup. Ct. 383, 3390, 42 L. Ed. 780. The penalty imposed by the statute is to be inflicted upon "any owner, lessee or operator, his or its agent, employés or servants, violating any of the provisions of this act." We think the persons designated by the words "employés or servants," as used in this section, must be construed as belonging to the same class of persons as those designated by the word "agent," used in the same connection; that is, that class of employés or servants who stand in the place of the owner, lessee, or operator of the mine, and who have something to do with employing, superintending, or directing the miners and laborers in the performance of their labors. The Legislature having twice, in the preceding sections of the act, used the terms "miners and laborers" as a class distinct and separate from other employés and servants, it is reasonable to suppose that, if it was the intention to include them in the penal provision, they would have been designated by the same terms or at least by terms equally unequivocal. It is a rule of construction that a penal statute cannot be extended by implication or construction to persons or things not expressly brought within its terms, nor to cases not within the letter of the statute; and also that "all doubts as to the construction are resolved in favor of the defendant." Lewis' Sutherland, Stat. Con. (2d Ed.) § 521, and cases cited in notes.

Construing the several sections of this act

together, which must be done in order to arrive at a correct construction of the penal section, we are of the opinion that the words "employés or servants," as therein used, were not intended to and do not include the miners and laborers employed in the mine and mentioned in the first two sections of the act; and for that reason the facts stated in the information in this case do not constitute a violation of the act in question and that the district court did not err in sustaining the demurrer. The Attorney General has very frankly stated in his brief that, after a careful examination of the question, he has arrived at the same conclusion.

Counsel have discussed in their briefs the constitutionality of the statute, but as we hold that the information charges no offense under the statute that question is not properly before us for consideration.

The judgment of the district court is affirmed.

POTTER, C. J., and SCOTT, J., concur.

(15 Wyo. 109)

MAU v. STONER et al. (Supreme Court of Wyoming. Nov. 17, 1906.) 1. WATERS AND WATER COURSES-IRRIGATION DITCHES-CONTRACTS-EVIDENCE.

In an action for trespass on plaintiff's irrigation ditch, a contract between plaintiff and defendants, by which one of the defendants was given permission to extend and enlarge the ditch so that the others might use the same, reserving to plaintiff the right to the use of the first five cubic feet of water per second which flowed in the ditch, was admissible to show plaintiff's title and the extent thereof. 2. SAME-WATER DISTRIBUTER-APPOINTMENT. The distributer of water in an irrigation ditch, appointed as provided by Rev. St. 1899, §§ 908, 916, as amended by Laws 1903, p. 122, c. 93, acts officially by virtue of his appointment, and has exclusive control of the ditch for the purpose of dividing and distributing the water received into the same until he is removed from office.

3. SAME-JURISDICTION.

The jurisdiction of the district court to appoint a distributer of water flowing in a partnership irrigation ditch, authorized by Rev. St. 1899, §§ 908, 916, as amended by Laws 1903. p. 122, c. 93, does not depend on the consent of the parties, but on the filing of a verified petition alleging joint ownership of the ditch, that the parties cannot agree on a distribution of the water, and praying for the appointment of a distributer.

4. SAME JOINT OWNERSHIP-DENIAL.

In a proceeding for the appointment of a distributer of water in a partnership irrigation ditch, as authorized by Rev. St. 1899, §§ 908, 916, as amended by Laws 1903, p. 122, c. 93, a denial of joint ownership would not, of itself, oust the court of jurisdiction, nor will its determination adjudicate the titles and interests of the parties in and to the ditch. 5. SAME IRRIGATION APPORTIONMENT WATER-CONSPIRACY-BURDEN OF PROOF. Where, in trespass to recover for alleged unlawful interference with plaintiff's irrigation ditch, plaintiff alleged that a duly appointed water distributer, by collusion with defendants, had diverted the whole of plaintiff's water from the ditch, and had permitted defendants to ap

OF

propriate the same to their own use, the burden was on plaintiff to establish that the water distributer and defendants acted jointly, in order to sustain such allegation.

6. SAME IRRIGATION DITCHES - APPORTIONMENT OF WATER-ACTS OF DISTRIBUTER — NOTICE.

any should be shown by the evidence. When the plaintiff rested his case, the defendants moved the court for permission to amend their answer, and, having obtained such permission, filed their amendment, and then moved the court to instruct the jury to return a verdict in their favor, which motion was granted. Judgment was rendered for the defendants upon the issue as to trespass and for costs, and also decreeing and grant

knowledge to them that the water distributer was acting unfairly to others who were also entitled to water from the same ditch.

7. PLEADING MISJOINDER OF CAUSES WAIVER.

Where misjoinder of causes of action under an alleged claim of joint liability was not apparent on the face of the petition, it would be waived if not taken advantage of by answer, as provided by Rev. St. 1899, § 3537.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1355, 1370.] 8. WATERS AND WATER COURSES-IRRIGATION DITCHES-JOINT USE-CONTRACT-REPAIR.

here a contract between plaintiff and S. authorized the latter to use plaintiff's irrigation ditch on condition that he enlarge the ditch, and also conferred on him in that event the right to clean out and repair the ditch whenever it became necessary, plaintiff having failed to prove that S. did not enlarge the ditch as agree, it would be presumed that his act in shutting off the water in order to clean out the ditch was necessary and reasonable and not tortious.

9. PLEADING-JOINT ANSWER-JOINT AND

SEVERAL LIABILITY.

In trespass for interference with plaintiff's irrigation ditch, defendants answered, jointly admitting plaintiff's prior right to the first five cubic feet of water running in the ditch per second, and claiming that their acts complained of were done pursuant to a contract between plaintiff and S. The contract created a several, and not a joint, iability, and the evidence showed that defendants acted separately at different times and places, and not pursuant to any design or purpose by all of them to deprive plaintiff of his rights. Held, that the fact that defendants filed a joint answer did not preclude them from taking advantage of the fact that the proof did not establish the joint liability charged in the complaint.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading. § 168.]

Error to District Court, Uinta County; Charles E. Carpenter, Judge.

Action by Frank A. Mau against John W. Stoner and others. From a judgment for plaintiff for less than the relief demanded, he brings error. Affirmed.

The petition contains the following, among other allegations, viz.: "Plaintiff alleges that he is the sole and exclusive owner of said canal and all the water running therein, and that neither of defendants, nor any one else, has any interest whatsoever in said ditch, or any of the water running therein; that said water was appropriated by the plaintiff and conducted through said ditch, and was also used by the plaintiff for domestic, stock, and other beneficial purposes, and has ever since been, and now is, the sole water supply of plaintiff for all the purposes aforesaid; that between the 1st day of May, 1902, and the 12th day of July, 1902, the said defendants, without any rights whatever, and without plaintiff's consent, willfully, wantonly, and maliciously diverted all of plaintiff's water from the said canal, and appropriated it to their own use, and deprived plaintiff of the use thereof, to his damage, etc." Then follows an allegation of ownership of a tract of land lying under and irri-. gated by and from said canal, and damage to crops growing thereon by reason of said alleged wrongful acts. The petition further says: "That the defendants threaten to continue to divert and appropriate to their own use all the plaintiff's water, as aforesaid. which threat, if carried out, will render the plaintiff's said tract wholly unfit for tillage or cultivation, and will destroy the entire value of said land, and produce great and irreparable injury to the plaintiff." The defendants joined in their answer, and claim several ownership to distinct and separate parcels of land lying along and under said ditch and above plaintiff's land, and also deny that the plaintiff was entitled to the excess over and above five cubic feet of water per second of time; allege that they were, pursuant to the provisions of a certain contract hereinafter referred to, the owners of such excess, and that they were, as they had a lawful right to do, applying such excess. and no more, to the irrigation of the crops upon their several parcels of land; that the distribution of the water flowing in the canal was according to the rights of the respective parties and by one Somsen, who had theretofore been regularly and in pursuance of law appointed water distributer, to divide and apportion the water of the ditch according to the respective rights of all parties interested therein. All other matters alleged in the petition are put in issue. The reply alleges that the order appointing said Somsen

was wholly void and without authority of aw, and that it was obtained at the instance of the defendants, and that Somsen, pretending to act under the void order, but in fact at the instance and instigation of the defendants, diverted the whole of plaintiff's water from the ditch, and further, that, prior to obtaining such alleged void order of appointent, the defendants, between May 1, 1902, and May 24, 1902, took and diverted plaintiff's water to their own use to his damage.

1. The court, over the objection of the plaintiff, struck out all evidence of alleged wrongful acts of the water commissioner, and which were alleged to have been instigated by the defendants. The ruling of the court in so doing is assigned as error. The record fails to present any evidence showing or tending to show that the appointment of Somsen as water distributer was illegal and void, or that he was, in dividing and apportioning the water of the ditch, acting other than in his official capacity. His appointment, if void, must be predicated on the allegation, if it be true, that the defendants who applied for his appointment had no interest in the ditch or the waters flowing therein. The plaintiff introduced in evidence a written agreement made by and between him and John W. Stoner on May 20, 1897, wherein it is recited that the defendants John W. Stoner, Aaron Stoner, Victor Forgeon, and others, who are not made parties to this suit, were each the separate owners of distinct tracts of land lying under a proposed extension and enlargement of the ditch in controversy; that, for a consideration, John W. Stoner was given permission to extend and enlarge said ditch, and when so extended and enlarged to use the same and take water therefrom to irrigate his land, and also that the others named might use said ditch and take water therefrom to irrigate their respective tracts of land, reserving to Mau the right to the use of the first five cubic feet of water per second of time which should flow in the ditch. This contract was competent evidence to show Mau's title and the extent thereof. The question as to the amount of such excess, if any, to which each defendant is entitled is not here involved. Sections 908-916, Rev. St. 1899, as amended by chapter 93, p. 122, Laws 1903, provides the method of procedure to have a distributer appointed to apportion and divide the water of a partnership ditch in case of disagreement between the partners, and also defines the duties of such water distributer when so appointed. He acts officially and solely by virtue of his appointment, and has exclusive control of such ditch for the purposes of dividing and distributing the water received into the same until such time as he may be removed by order of the court, judge, or commissioner. The proceeding for his appointment was a proceeding in the district court, and the court's jurisdiction did not depend upon

the consent of the parties, and this is true whether heard by the court, commissioner, or by the judge in chambers. Mau v. Stoner et al., 12 Wyo. 478, 76 Pac. 584. The subject-matter was within the jurisdiction of the court upon the filing of a verified petition setting forth the fact of joint ownership in the ditch, and that the owners could not agree relative to the distribution of the waters received into the same, and praying the appointment of a water distributer, as provided in the statute, to take charge of the ditch, and distribute the waters thereof to the parties entitled to it. If in such proceedings the joint ownership was denied, that was a question to be determined the same as any other, and such denial would not, of itself, oust the court of jurisdiction. Such a question goes only to the jurisdiction, and its determination would not adjudicate the titles and interests of the parties in and to the ditch. State ex rel. Mau v. Ausherman et al., 11 Wyo. 410, 72 Pac. 200, 73 Pac. 548. These statutes, so construed, make it clear that for the purpose of appointing Somsen as water distributer the ditch must have been found and determined to be a partnership ditch. Although Somsen was appointed by the district court commissioner, it does not appear that any appeal has been taken from the action of the commissioner in so appointing him, though such appeal is allowed by section 910, Rev. St. 1899, as amended by chapter 93, p. 122, Laws 1903, and the order might have been suspended during the pendency of such appeal by giving an undertaking in an amount fixed by the commissioner. Mau v. Stoner et al. (Wyo.) 83 Pac. 218. (Wyo.) 83 Pac. 218.

Nor does it appear that any application for Somsen's removal has ever been made. He may, for all that the record shows, still be in exclusive control of the ditch, and the remedy here sought would not disturb him in his authority over it. Nor does the evidence show or tend to show, as alleged by the plaintiff, that the defendants instigated or procured him to commit any of the acts complained of. The burden was upon the plaintiff to prove this allegation, and the only evidence relied upon to sustain it is that he was appointed pursuant to the joint application of the defendants, and that plaintiff was not receiving as much water as he was entitled to, and that the defendants were at the same time receiving more than they, or either of them, was entitled to. As already stated, for the purposes of appointing a water commissioner, the partnership character of the ditch was determined in the proceeding leading up to his appointment. The defendants were then acting clearly within their rights under the law. It is not pointed out nor has our attention been called to a single authority or rule of law that imparts a wrong motive to the exercise of a statutory right, or gives a cause of action therefor. The water distributer may have acted wrongfully, and the

plaintiff may have been damaged thereby, but the gravamen of the charge is that such wrongful act was at the instigation of the defendants. Knowledge of such wrongful acts is imputed to the defendants by the allegation, and must be sustained by proof. The mere fact that they were receiving water under a claim of right from a partnership ditch in which they claimed an interest, pursuant to the direction of one who had been regularly appointed water distributer by the court, and who had exclusive control of the ditch "for the purpose of dividing and distributing the water received into the same," does not impart knowledge to one so receiving the water that the water distributer is acting unfairly to others who are entitled to water from the same ditch. We are of the opinion that, as the plaintiff failed to produce any evidence tending to show that the alleged wrongful acts of the water distributer were instigated or procured by the defendants, or either of them, the court properly struck out all evidence in relation thereto.

2. At the close of the plaintiff's evidence the defendants moved the court for permission to amend their answer. The motion was granted, over the plaintiff's objection, and the defendants filed the following amendment, viz.: "That there is a misjoinder of parties defendant, in this, to wit: That each of the defendants was improperly joined with the other herein upon an alleged cause of action sounding in tort, in which alleged tort neither of the defendants was a joint tortfeasor or wrongdoer with the other, but each acted, if at all, independently of the other, without concert of action or unity of design between either of them, and that the acts of each of them was the separate, and not the joint, acts of each of them." The motion was supported by affidavits as to diligence in making the same, upon discovery that the plaintiff sought to recover upon a several, and not a joint, liability. Such discovery rested in plaintiff's failure to prove a joint liability, as alleged in his petition. It is urged by plaintiff in error that joint liability is not alleged, but very clearly he is in error in this contention, for the petition does charge that the defendants committed the acts alleged to have caused the injury which, in effect, makes the act a joint one. Minter v. Gose et al., 13 Wyo. 178, 78 Pac. 948. When he rested his case no joint liability had been proven, and the defendants, by their answer, had met that issue. The facts shown by the evidence were not stated in the petition, nor did they support the issue tendered. The answer as originally filed was sufficiently broad, and met the issue of joint liability. No notice was given, by the broadest interpretation of the language of the petition, that plaintiff in error intended to rely upon proof of a several liability for a recovery. Had several liability been pleaded, it would have been the duty to have raised

the question by demurrer for misjoinder of separate causes of action, and also misjoinder of parties defendant; but, as these defects were not apparent upon the face of the petition, it could not be so reached.

It was first made apparent at the close of plaintiff's evidence, the defendants having no intimation prior to that time, as shown by the affidavits in support of their motion to amend their answer, that plaintiff relied upon proof of a several and separate liability (if, indeed, his evidence was sufficient for that purpose) for a recovery against one or a part of the defendants, instead of against all. The defect, not being apparent on the face of the petition, would be waived unless taken advantage of by answer. Section 3537, Rev. St. 1899. As to when an amended answer can be filed is a matter regulated by the Code. "The party applying to amend during the trial shall be required to show that the amendatory facts were unknown to him prior to the application, unless in its discretion the court shall relieve him from so doing." Section 3588, Rev. St. 1899. From the affidavits in support of the motion to amend, which affidavits are in no wise controverted, it does appear that the amendatory facts were unknown to the defendants prior to the time plaintiff rested his case when the motion was made. The affidavits were before the trial court, and the amendatory facts constituted a defense to the case, if any, as made by the evidence, and the allowance of the amendment was clearly within the provisions of the statute.

3. At the defendants' request, the court, at the close of plaintiff's evidence, and over the objection of the plaintiff, after the answer was amended, as aforesaid, instructed the jury to return a verdict for the defendants upon the ground "that the defendants were improperly joined herein because the undisputed evidence shows the acts complained of were not the joint acts of any one defendant with the other, but were the several, separate, independent acts of each, without unity of design or concert of action." All evidence as to wrongs of the water distributer having been stricken out, the determination of the correctness and the right to give this instruction calls for a consideration of the evidence then remaining in the case. Such evidence referred to, and it is claimed established, prima facie, the alleged wrongs committed between the 4th and the 23d day of May immediately prior to the time when the water distributer assumed control of the ditch. It is alleged that between these dates "the defendants, without any right whatever, and without plaintiff's consent, wrongfully, wantonly, and maliciously diverted all of plaintiff's water from the said canal and appropriated it to their own use, and deprived plaintiff of the use thereof." Mau testifies that, early in May, after he had commenced to irrigate, one of John W. Stoner's employés had turned the water off from

the ditch; that Stoner sent for him, and on the evening of the same day Mau sought and had a conversation with Stoner, in which the latter said he wanted to do some work on the ditch, and had had the water turned off at the headgate for that purpose. Mau protested that it was not the proper time, and told Stoner that he might have done the work earlier in the season, when it was not necessary to use the ditch for irrigating purposes; that he needed the water at the time, and said,,"And when I get to turn the water on, you always turn it off." To the latter remark Stoner replied that "he would take the water whenever he felt like it, and would turn it off when he felt like it." Mau Mau says that at this time he was for a day and a half deprived of the use of water for domestic and irrigating purposes, and that such interferences occurred more or less until May 24th following, and that he needed water for irrigating purposes during all that time; that the carrying capacity, approximately, of the canal at that season was five cubic feet of water per second of time; that he measured the flow of water in the ditch at different times during this period, and that sometimes he didn't find any, at other times four feet, and at times a little more than five cubic feet, and that the flow was about five cubic feet whenever the water wasn't turned off. His measurements were made every other day, and on these days he observed about a cubic foot of water running in a lateral belonging to defendant John W. Stoner, and that he made the measurements in the canal down toward his own place below this lateral. Upon direct examination he does not mention or charge any of the defendants other than John W. Stoner in connection with the wrongs charged. Upon cross-examination the following questions were asked and answers made: "Q. And he [John W. Stoner] usually in the irrigating season irrigates with water below these laterals? A. Why, Stoner takes the water whenever he feels like it, I suppose. Q. Who else? A. Aaron has irrigated some of the time. Q. Who else? A. Victor Forgeon. Q. Who else? A. No one, that I know of, excepting myself." The plaintiff is corroborated in this evidence by other witnesses, except as to the statement that John W. Stoner took water from the ditch whenever he wanted to. One witness testified that he heard Victor Forgeon say, but not in the presence of any of the other defendants, that they would show the plaintiff that the ditch didn't belong to him, although the first five feet of water did.

We have searched the record carefully to find if there was any evidence to show, or tending to show, that the acts complained of were participated in jointly by all of the defendants. The water for this ditch is taken from Smith's Fork, and the lands of the different parties to the action, going from the headgate down the ditch, are as follows:

First, the land of John W. Stoner; then that of Aaron Stoner; then comes that of Victor Forgeon; and the next is the land of plaintiff. Each owns his own tract, and irrigates the same separately and independently with his own separate lateral or laterals from the ditch which is referred to and known as the "Mau canal." "Mau canal." The evidence shows no two of the defendants acting together in the acts complained of, except in cleaning out the ditch, for which purpose John W. Stoner had the headgate closed down, thereby turning the water from the ditch, and permitting it to run down Smith's Fork, from which the supply was drawn. The plaintiff, to prove his allegation of sole ownership to the ditch, introduced the contract already referred to, and relies upon that and other evidence as to the capacity of the ditch to sustain him in this contention. The contract was before this court in Mau v. Stoner, 10 Wyo. 125, 67 Pac. 618. It was introduced in evidence in that case by the defendant on cross-examination of the plaintiff, and before the plaintiff had rested his case. It therefore became and was the defendant's evidence upon the issues there tried. This court said: "That they are joint owners of the ditch is denied by the parties bringing this suit, and the court could not find that it was a joint ownership until the defendant had affirmatively shown that he had performed his part of the contract in enlarging the ditch." The contract is set out in hæc verba in Stoner v. Mau, 11 Wyo. 366, 72 Pac. 193, 73 Pac. 548, and is as follows: "This agreement, made and entered into between Frank A. Mau, of the county of Uinta and state of Wyoming, party of the first part, and John W. Stoner, of the same place, party of the second part. witnesseth: That whereas, the party of the first part is the owner of three hundred and twenty acres of land situate about two miles south of Cokeville, in said county, and Gustave Mau is the owner of one hundred and sixty acres of land adjoining the same: and whereas, the party of the first part has constructed a water ditch from Spring creek to said land, and is now the owner of the same; and whereas, the party of the second part is desirous to enlarge said ditch and extend the same; and whereas, the following named parties own the following named number of acres of land upon the line of said ditch and the extension thereof, to wit: John W. Stoner, 860 acres; Charles Deloney, 640 acres; Cyrus E. Wheeland, 360 acres; Victor Forgeon, 40 acres; Aaron W. Stoner. 160 acres; now, this indenture witnesseth that, in consideration of one hundred dollars, the party of the first part agrees that the party of the second part shall have the right to enlarge said ditch to a sufficient capacity to carry water sufficient to irrigate all of the above land, and have the right to extend the same from its present terminus. And it is further agreed between the parties