in business for several months; during that time he borrowed money from one Bean and executed a chattel mortgage upon the wagon to secure it.

Some

In July, 1891, Crandall sold and delivered the wagon to one Orrick and left the country. Orrick shortly after sold and delivered the wagon to Riley, defendant in error. days afterwards plaintiff in error asserted his title and demanded the possession. During this time Orrick, having learned of the outstanding mortgage to Bean, bought it to protect the title in Riley to whom he had sold it. Riley refusing to deliver the wagon to plaintiff, suit was brought before a justice of the peace; a trial had; an appeal taken to the county court; a trial had to the court without a jury; judgment found for the defendant, from which error was prosecuted to this court.

There are no questions of law involved except the question of estoppel, growing out of the established facts. The testimony was not conflicting to any great extent, - Crandall and other important witnesses were absent. The plaintiff established the fact of the payment of the purchase price of the wagon; also testified that he rented it to Crandall, and that he paid in small sums at different times about $27 for its use. Other witnesses established the fact that Crandall retained the possession of the wagon as the ostensible owner, claimed to be the owner, had it repaired at the shop of Orrick on two occasions as his own, paying the bills for repairs, and mortgaged it to Bean long prior to the sale of it as stated.

Plaintiff asserted no title until after Crandall had left the country, and gave no notice of his ownership. The evidence of the defendant, to fix upon the plaintiff knowledge of the different acts of ownership exercised by Crandall, was unsatisfactory, but there was evidence of facts that would go far toward establishing the inference or a presumption that plaintiff knew that Crandall was dealing with others in regard to the wagon as with his own property. The evidence of plaintiff in regard to the renting of the wagon to Crandall was very much mixed and very unsatisfactory; he did not testify to any contract of renting or agreement as to a price or as to terms of payment, and although he testified generally to have received $27.00 as rental, he could not give dates nor amounts of payments going to make up the aggregate. The court evidently disregarded the evidence on that point as insufficient to establish the fact of a rental, evidently thinking that the payments, if made, might with equal propriety be regarded as a part of the purchase price. The fact that there were no acts of ownership, assertion of title or notice until some days after Crandall had sold the wagon and left the country would, of necessity, greatly influence the court in arriving at a conclusion in regard to the facts. The credit to which a witness is entitled depends so much upon the character of the testimony, and the manner and bearing of the witness, that a trial court might be warranted in rejecting evidence that might be entitled to full credit when printed and presented to a court of review.

The only theory upon which the judgment can be sustained is that the conduct of plaintiff with reference to the wagon was such as to mislead in regard to the ownership and estop him from asserting his title. This view of it, under the circumstances, can be sustained upon the wellestablished rule of law that where one of two innocent parties must suffer by the wrongful act of a third, it must be he, who by his conduct or silence, enables the wrongdoer to perpetrate the fraud. The plaintiff's evidence to establish ownership was weak. The fact of the payment and taking a receipt was so at variance with his subsequent conduct as to be insufficient to establish the fact of continued ownership, while the evidence of the defense, in regard to sufficient knowledge on the part of plaintiff to create an estoppel, was weak and unsatisfactory.

A judgment might have been found either way with equal propriety, hence, the judgment will not be disturbed.

Affirmed.

BISSELL, J., dissents.

THE CATLIN LAND & CANAL COMPANY, APPELLANT, v.

BEST, APPELLEE.

1. PRACTICE-OBJECTIONS-EXCEPTIONS.

Rulings of the court below admitting or excluding evidence will not be considered on appeal, when the evidence was admitted without objection and no exceptions were saved.

2. PRACTICE-NONSUIT.

It is not error to refuse a nonsuit when there is evidence of damage

for which a recovery could be legally had.

3. NEGLIGENCE.

Owners of ditches are liable in damages resulting from their neglect to carefully maintain and keep the embankments of their ditches in good repair.

4. CONTRACT RELEASING DAMAGES, HOW CONSTRUED.

A contract releasing the ditch company from damages by reason of unavoidable accidents and breaks of the canal would not cover a case of gross and continued negligence.

Appeal from the County Court of Otero County.

Mr. GEORGE A. KILGORE, Mr. W. E. BECK and Mr. H. B. JOHNSON, for appellant.

Messrs. RIDDELL, STARKWEATHER & DIXON, for appellee.

REED, J., delivered the opinion of the court.

Appellant was the owner of and managing an irrigating canal. Appellee was the owner of, or at least in the possession of farming land under the canal. In February, 1889, there was a limited, but quite large volume of water being carried in the canal for the domestic use and convenience of its patrons. Some time during the month of February a large break occurred in the bank of the canal and the water passed down upon, and over the land of appellee, causing damage. Appellant had no one in the actual care of the ditch, paid no attention to the break, made no effort to re

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pair it; appellee made some ineffectual efforts to repair the break and stop the water.

The break remained and the water continued to flow on appellee's land some three weeks, submerging it and creating a lake covering several acres, which remained for a long time until taken up by evaporation and absorption. The water also cut through at the point of its discharge into a creek, leaving a large excavation and destroying some land. It also appeared that the land submerged was seeded to alfalfa, and a crop upon some seven acres was destroyed by reason of the water. Also that a natural pasture was destroyed or rendered inaccessible, and that by reason of it appellee was compelled to feed out a quantity of hay and straw to his stock. A suit was brought by appellee for the damages sustained; a trial was had to a jury, resulting in a verdict and judgment of $80.00 against the canal company.

The errors assigned and relied upon are, the admission of improper evidence; the exclusion of proper evidence, refusal to grant a nonsuit, and to the instructions given and refused. Upon the trial, it must be conceded, that the evidence of the plaintiff took a wide range, and that some of the damage was rather remote and questionable, but no objection was made or exceptions saved, nor were any exceptions saved to the refusal of evidence offered by the defendant; hence, the supposed errors will not be considered. The court was justified in refusing a nonsuit. Mixed with much testimony of damage of a nature inadmissible, was also much proper evidence of damage, for which a recovery could be legally had, which were questions of fact that were properly left for the determination of the jury. The jury was warranted by the undisputed facts in evidence, in finding the canal company culpably negligent and guilty of violating the statute, and in awarding proper damage. The amount was purely a question of fact to be determined from the evidence. It is apparent from the amount of damage found that a considerable portion claimed was disallowed. It is impossible to determine from the record whether the amount allowed was for damage legally chargeable, or too remote to be legally considered, but the amount was so small it might have been predicated upon either. The legal presumption must be that the former was considered and the latter disallowed.

Sec. 1733, Genl. Laws, p. 565, is: "The owner of any irrigating or mill ditch shall carefully maintain and keep the embankments thereof in good repair and prevent the water from wasting."

Sec. 1737, p. 566: "Owners of all ditches shall be liable for all damages resulting from their neglect or refusal to comply with the provisions of sec. 1 (1733) of this act."

While, as contended, the break may have been accidental and caused by no failure or neglect, it was the duty of the company to repair it at the earliest practicable opportunity; to allow it to remain unrepaired for two or three weeks was, under the circumstances, negligence per se, for which it was clearly liable.

Two of the instructions given for the plaintiff are upon a question not properly involved a question of contract between the parties, made the preceding year, in regard to the sale of water to appellee during the irrigating season, in which it is claimed the canal company was released from all liability for damage by breakage of the canal, which was relied upon by the appellant, but which by its own limitation had expired the preceding November; hence, could not be used as a defense. These instructions in no way prejudiced the defendant. The others given are unobjectionable, being merely a statement of the statute provisions cited above. Those given for the defendant are rather at variance with those given for the plaintiff, and are more favorable than warranted by the law and the facts. The other instruction asked was very properly refused. It was to the effect that the contract for the use of water, that, by its terms, expired November 1st, the preceding year, would, in the absence of a new contract for the ensuing year, remain in force and control the parties. Comment upon it is unnecessary. Even if there had been an existing contract releasing the company