No such issue was presented by the pleadings, and in our opinion no such theory is justified by the terms of the contract.

From our examination of the testimony in this case we are of the opinion that section 5 of the ordinance is unenforceable, in that it is utterly impossible to arrive at an equivalent of the average rate prevailing in the three cities mentioned for the same service, due to the fact that the schedules of rates prevailing in the three cities are based upon such radically different classifications and methods of computation, such a diversity of uses and services, and are so largely deter mined by the judgment and discretion of employés of the water departments, whose duty it is from time to time to inspect, survey, and assess the premises to which water is furnished, and upon the reports of these employés the rates to be paid by the consumers are calculated by the employés of the office upon the schedules of rates prevailing. this conclusion we are abundantly supported by the position taken by counsel for defendant in his brief: "We spent a number of weeks in the trial court-many people spent weeks elsewhere, so we are told-in attempting to arrive at an average. We said that it could not be made. We say to-day that it cannot be done. What better proof or demonstration of that fact is required than that schedule after schedule, no two ever agreeing, are tendered by the same plaintiff, under the oath of the same man, and figured by the same accountant. If it could be done, if it was a mathematical proposition, no two men should differ upon it, and certainly one man should not differ from himself. There is an inherent difficulty in the question, not put there by the intention of anybody, perhaps, but existing, it cannot be avoided or escaped; and that is that the three cities are so diverse in their methods and their classifications that you cannot put the three together and make the comparison Mr. Scobey told us of, and in his report he reported to the city council, and we called his attention to it when upon the stand, that anybody would say it was an easy matter to add three figures together, and divide by three, and get an average; but, as he then reported, that is not what is to be done. We find in St. Louis the room as largely the basis of the charge; we find in Chicago the front as largely the basis of the charge: we find in Cincinnati either rooms in residences or floor space in stores and offices; and how they get these together, or to unite them so we can say this is the charge in Cincinnati, or the thing covered by a specific charge in St. Louis or Chicago, is a difficulty with which they had wrought, with the result they could not come to a conclusion." To quote again: "Having tested, just as we tested in the courtroom throughout the many weeks of the trial, the inability of any accountant, however fair and unprejudiced and accomplished he might be, to go through

these four schedules and arrive at an exact average in all these matters, the utter futility of the effort is no longer susceptible of doubt." Again: "The plaintiff did not give the court material out of which to make a schedule; that is, there was no evidence going other than to a contention with regard to the minimum charge. How could the court, on such evidence, make anything else, apply any doctrine or principle to the minimum after it was obtained, under the evidence thus presented?" And also: "The appellant only attempted to present evidence as to a minimum rate. Taking the evidence before the court, nothing else has been attempted by the appellant, either in pleading, evidence or tables. That is not making a schedule."

As to irrigation rates, there was no effort whatever made by the plaintiff to introduce any evidence which showed or tended to show that rates for irrigation existed in any one of the three cities mentioned. The only effort in this direction was to prove the rates established in the three cities for sprinkling sidewalks and streets and washing windows by means of a hose. The witnesses who testified for plaintiff from the three cities mentioned candidly admitted that irrigation, as understood and practiced in this country, was unknown in either Chicago, St. Louis, or Cincinnati; so that it appears by the only testimony introuced by plaintiff that no schedule of rates existed in either one of the three cities for this service. And the court so found. Finding 11: "That the same service designated as irrigation of lots in Schedule A, which is attached to and made a part of the contract of April 10, 1890, does not exist in either the cities of Chicago, St. Louis, or Cincinnati." The court. in closing its discussion of "irrigation rates" in its opinion, says: "We would therefore, in view of what appears to us sufficient in the evidence, pleadings, and contract, decide that the classification as to irrigation is not subject to change, and while the evidence would justify us in raising the rate for irrigation, if such classification were found in the other three cities, we are led to conclude that the rate charged in the leaflet since November 1, 1895, is just, fair, and reasonable, and the rate will remain at 22 cents per foot front." As before stated, the question of reasonableness, fairness, or justice of the schedule of rates adopted by the defendant was not in issue, and cannot be made a basis of determination of what such rates shall be, under the express terms of the contract set out in section 5 of the ordinance of 1890; and such section does not except from its operation "irrigation rates," so that the court, as shown by its opinion, departed the issue presented, and promulgated a schedule of rates for irrigation, without any competent evidence whatever sustaining or tending to sustain such schedule.

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 decreed 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 provided 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. Highlands, 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 granted the water company the right and priv ilege of laying its mains in the streets, avenues, 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 annexation 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 Denver 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 follows: "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 1895, 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 supplied 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 and specific denial of all the allegations of the complaint, and also allegations to the effect that

the city had failed and refused to keep its part of the contract, by failing and refusing to pay the defendant hydrant rentals as provided for by the ordinance. In the view which we take of this case, the latter allegations are immaterial, and will not be considered. The plaintiff's reply denied all of the material allegations of new matter contained in the answer.

The taking of testimony upon the issue presented by the pleadings upon the second cause of action continued through several months and occupies about 1,400 pages of the supplemental abstract filed by the defendant in error. July 8, 1898, the court made its findings upon the second cause of action in favor of defendant, and rendered its decree thereon dismissing the second cause of action, at the costs of plaintiff. It is impracticable to review the testimony taken upon this cause of action, and we cannot conceive that it would accomplish any good purpose to make an attempt to do so. The testimony has been considered with great care, and it seems to us that the findings of the court and the decree based thereon are amply warranted by the testimony preserved in the record. A mass of expert testimony was introduced, which was conflicting, as all such testimony is; but we are justified in saying that the plaintiff utterly failed to sustain the allegations of its complaint as to the impurity and unwholesomeness of the water which was being supplied by the defendant to the city of Denver and its citizens for the period of time alleged in the complaint and for the period of time which the testimony

covers.

As to the third cause of action, it was alleged that the defendant had not kept or performed the duties imposed upon it by section 8 of the ordinance, which is as follows: "Sec. 8. The said company shall at all times until the 1st day of May, 1891, keep and supply the said hydrants with an abundant supply of water for fire purposes under such pressure as it now gives, and after said 1st day of May, 1891, shall supply all of said hydrants and any hydrant which may be ordered to be set upon additional mains, as hereinafter in this ordinance mentioned, with a pressure equivalent, taking the elevation of the surface of the ground into account, to one hundred and fifteen pounds at the hydrant in front of the Union Depot in said city; provided, the city shall not be in default with the company upon any of its agreements; and provided, further, that if, owing to the extension and growth of the city, hydrants shall be ordered upon locations where, owing to the difference in elevation, there shall be less than fortyfive pounds pressure, with a pressure of one hundred and fifteen pounds at the hydrant in front of the Union Depot, to the number of fifty or more, the said company shall put such hydrants upon a separate high service, and keep and maintain on each of said hydrants a water pressure of not less than fifty

pounds." The defendant denied the material allegations of the complaint as to this cause of action, and further alleged that plaintiff had failed and refused to keep the obligations imposed upon it by the ordinance, in that it failed and refused to pay the hydrant rentals provided for by the ordinance, and that plaintiff, at the time of the suit, was indebted to the defendant on account of such rentals in the sum of over $145,000, and that the plaintiff had failed to comply with other provisions of the ordinance by it to be kept and performed, which are unnecessary to be stated or considered, in the view taken of the disposition to be made of the main issue presented by this cause of action. The answer also alleged that at the date of the execution of the contract of April 10, 1890, its predecessor, the Denver Water Company, was pumping water by steam pumps and plants into and through its lowest mains to the higher points in the system; that the hydrant in front of the Union Depot was at or near the lowest point in its system; that during the year 1894 the system was changed from a pumping system to a gravity, system, by which latter system the water was introduced into the mains at the highest point in the system, by mains connected with its elevated reservoirs, standpipes, and storage basins, thereby maintaining a constant, abundant, and inexhaustible supply of water throughout the whole system; that the diameter of its mains under the gravity system had been largely increased; that the quantities stored by defendant in its various reservoirs, after the adoption of the gravity system, had been largely increased, thereby insuring to the city of Denver a much larger and a more uniform and steady supply of water throughout its whole system; that the change from the pumping system to the gravity system was with the knowledge, consent, and approval of the plaintiff; that at the time the contract was entered into by the predecessor of defendant the quantity of water supplied the city of Denver was about 14,000,000 gallons per day; that the quantity of water supplied by the defendant at the time of the trial was from 25,000,000 to 45,000,000 gallons of water per day. The reply of plaintiff put in issue the allegations of new matter in the answer.

The evidence in the case clearly established the fact that the pressure at the Union Depot was not 115 pounds per square inch, as required by section 6 of the ordinance, and that such pressure had not been maintained since the change was made from the pumping system to the gravity system. It also ap peared by the evidence that the city and its officers were fully advised of the change which had been made by the defendant in its system, that they consented to such change, and that, when it was suggested by the defendant that a change should be made back to the pumping system, such proposed change was violently opposed by the then mayor

of the city, who said that he never would consent to such change if he could prevent It. The evidence also clearly showed that by the change from the pumping system to the gravity system, by the enlargment of the mains of the water company, and by the increased supply of water stored in its various reservoirs, a very much larger supply of water was furnished the city for use in case of fires and conflagrations than was furnished at the date of the adoption of the ordinance. The testimony of an expert witness as to the relative efficiency of the two systems, set forth in the abstract, is: "Under the old system the hydrant at the Union Depot was supplied by a 6-inch pipe 260 feet long, which was fed by a 10-inch pipe, and under 115 pounds pressure the supply under this pumping system would be 2.820 gallons per mniute. To-day the hydrant is supplied by 60 feet of 6-inch pipe, fed by an 18-inch pipe, and that under 85 pounds pressure would give 5,163 gallons per minute. Practically 2,300 gallons more furnished on the pressure of the present system than the 115 pounds of the former system." This testimony, taken in connection with that of a former chief of the fire department, which was to the effect that recent large fires had demonstrated that an abundance of water was furnished, and that fires of any consequence could not be successfully handled without steamers to give the pressure, which cannot be obtained by any other means, not even if the pressure at the Union Depot amounted to 140 or 150 pounds, which testimony was uncontradicted, justifies the conclusion, arrived at by the court below, that the defendant had complied with that provision of the contract which required it to furnish an abundant supply of water which should be the equivalent of a pressure of 115 pounds to the square inch at the hydrant in front of the Union Depot. It abundantly appears from the testimony that the water supply of defendant, stored in its reservoirs at the time of the suit, was many times the supply maintained by the Denver Water Company at the time the contract was entered into, and that the company had kept pace with the growth of the city, so far as its supply of water was concerned. The findings of the court below were to the effect that from the evidence it appeared that the defendant company had not failed to comply with the requirements of section 8 of the ordinance, and its decree based upon such findings, as to the third cause of action, dismissed the complaint at the costs of plaintiff.

The findings of the court upon the second and third causes of action were sustained by the evidence introduced at the trial, and its decrees, based thereon, will be affirmed. For the reasons stated, the findings of the court below as to the first cause of action, so far as the same relate to a schedule of rates, except meter rates, to be charged private con91 P.-59

sumers by the defendant, the Denver Unio Water Company, and the decree based thereon, are not sustained by the evidence introduced at the trial, for which reason the decree as to the first cause of action, except as to meter rates, must be reversed.

Affirmed in part. Reversed in part.

STEELE, C. J., concurs in the foregoing opinion, except that he is of the opinion that the provisions of section 5 of the ordinance of 1890 are enforceable. CAMPBELL, J., not participating.

The will of a testator leaving a widow made no provision for her nor for a child born after his death, nor manifested an intent to disinherit the child. The widow elected to take under the statute. Held, that the will was not revoked, but its provisions were nugatory, and the wife and child were each entitled to a half of the estate.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, § 468.]

2. EXECUTORS AND ADMINISTRATORS - CLAIMS -PRESENTMENT FOR ALLOWANCE.

The manner of exhibiting claims against estates of decedents, prescribed by Mills' Ann. St. § 4787, requiring the filing in court of the instrument whereon a claim is founded, is exclusive, and the original note on which a claim is founded, and not a copy, must be filed, and, unless that is done within a year from the granting of letters testamentary, the claim is barred under the express provisions of section 4780.

3. SAME-AUTHORITY OF EXECUTOR.

An executor, being a representative of the estate, cannot act as the agent of a claimant in presenting a claim for adjustment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 820.] 4. SAME-FAILURE TO PRESENT CLAIM-EX

CUSE.

The failure of an executor to comply with the request of a claimant to present a claim founded on a note delivered to the executor is no excuse for the claimant's failure to file his claim as prescribed by Mills' Ann. St. § 4787.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 830.] 5. SAME-OBJECTIONS.

Under the statute authorizing the heirs and beneficiaries of a decedent to object to the allowance of a claim, and providing that a contested claim shall be determined in the same manner as in actions before justices of the peace, a general objection by the widow in her own behalf, and as guardian of an infant child, to the allowance of a claim founded on a note, a copy of which was filed, was sufficient, and the defenses of limitations, and of the failure to file the note itself, were available.

6. LIMITATION OF ACTIONS-FAILURE TO SUE -EFFECT.

Where a note was not exhibited as a claim against the estate of decedent, and more than six years had elapsed since it became due, the claim was barred by limitations.

Appeal from District Court, Pueblo County; N. Walter Dixon, Judge.

Proceedings by E. B. Hobson for the allowance of a claim against the estate of George H. Hobson, deceased, in which the widow in her own behalf, and as guardian of a minor child of decedent, filed objections. From a judgment disallowing the claim, claimant appeals. Affirmed.

W. E. So Relle, Guy Le R. Stevick, and L. A. Crane, for appellant. J. H. McCorkle, for appellee.

CAMPBELL, J. George H. Hobson died testate October 2, 1900, leaving a widow. A child was born after his death. The will did not make any provision for either, or manifest an intention to disinherit the child. It was admitted to probate in the county court of Pueblo county November 19, 1900. On the same day A. W. Hobson, a brother of the testator, so designated in the will, was duly appointed executor, and letters testamentary were granted to him, and he thereupon qualified. Three days later the widow renounced under the will, and elected to take under the statute, the effect of which and the birth of testator's child after the making of the will, though not revoking that instrument, rendered its devises and legacies nugatory, and the wife and child became entitled each to one-half of the property of the estate under our statute. The executor gave the statutory notice to persons having claims against the estate to present them for adjustment on the 4th day of February, 1901. On that day Edward B. Hobson, a brother of testator, filed in the county court an affidavit stating that he owned a promissory note executed and delivered by George H. Hobson during his lifetime to the claimant, and that the same was a just claim against his estate; the affidavit setting forth a copy of the note, which purported to have been executed February 2, 1895, for $13,000, payable on demand after date, without interest until paid. From an offer of proof made by the claimant at the trial-concerning the time at which it was made there is some dispute, but which, for our present purpose, we shall assume was seasonably made it appears that the claimant, Edward B. Hobson, several days before the day fixed for adjustment, sent the original note upon which the claim is founded to the executor, with a request that the latter should take such action as was necessary to have the claim properly filed and allowed in the court and paid out of the estate's assets; that the executor agreed to take such action, and thereupon sent to the claimant, who resided in California, a copy of the form which had been used by holders of other promissory notes against the estate, and which had been filed in, and allowed by, the county court. Employing this form, the claimant.prepared and swore to the claim, and forwarded the writing to the executor, and the executor, on

the return day, presented the affidavit and filed it in the county court. The executor then, and for more than two years thereafter, had in his possession the original note. When the affidavit was filed on adjustment day, the attorney for the widow, acting in her own behalf and as guardian for the minor child, objected to the allowance. It was a general objection; nothing being said as to the manner of presenting the claim, or that a copy of the note was filed instead of the note itself. The county court retained jurisdiction over the estate until August 26, 1902, when an order was made transferring all papers and all matters connected therewith to the district court, because the judge of the county court had been an attorney for one of the devisees. During the entire time the county court had jurisdiction the claimant took no steps whatever toward securing action upon his claim, further than filing a copy of the note, and the record does not show that any order of continuance from term to term was made in the matter of its adjustment. Nearly eight months after the venue was changed to the district court, April 22, 1903, the claim came on for hearing on the written objections of the widow, guardian, and one of the devisees, filed April 8th, in which the executor orally joined on the day of the hearing. The record does not show that the hearing was the result of notice given to the executor by the claimant, as the statute prescribes, but the claimant and the objectors were present in court either in person or by counsel.

Only two of the objections interposed will be discussed, as they are the ones upon which the court rightly, as we think, disallowed the claim: (1) The claim has never been exhibited against the estate by filing the written instrument upon which the same is founded in the county court or the district court, to which the administration proceedings were transferred, and, at the time of the hearing, more than one year had elapsed from the granting of letters testamentary. Hence the claim is barred by the statute of nonclaims (section 4780, Mills' Ann. St.), unless the claimant shall find other estate of the testator, not inventoried or accounted for by the executor. (2) That, since more than six years have elapsed since the accrual of the cause of action upon the alleged promissory note before the commencement of proceedings for its allowance, the claim is barred by the general six-year statute of limitations.

Section 4780, Mills' Ann. St.., declares that demands against an estate of this character shall be exhibited within one year from the granting of letters testamentary or of administration, and, if not exhibited within that time, shall be forever barred, except as to property of the decedent not inventoried or accounted for by the executor or administrator. Section 4787 reads: "The manner of exhibiting claims against estates shall be by filing in the county court the account, or instrument of writing,

whereon