{dissenting). Having presided at the trial of this case in the district court, it has been with great reluctance that I have consented to participate in the review of it in this court. But the circumstances attending the case in this court have been peculiar. The honorable commissioners first considered the case and reported a unanimous opinion affirming the judgment, though upon grounds somewhat different from those announced in this opinion. Upon my accession to the bénch, finding the judges divided in opinion in respect to the case, I waited for my Brother Hayt to qualify, hoping he and Chief Justice Helm would be able to decide the case without my intervention. But after patient consideration, they, being unable to agree, have insisted that it is my duty to sit in the case, else the decision might be deferred to the close of my term. Accordingly I have undertaken a re-examination of the case, animated only by a desire to reach a conclusion according to correct legal principles, and impressed with the conviction that the controlling consideration should be, not so much the result in the particular case, as the announcement of correct rules, so far as we are required by the record to announce anv at all.
The evidence on the trial was conflicting as to the in-' *445jury to plaintiff’s land caused by water, both as to the origin and extent of the inundation, and as to the value of the land with or without the presence of the surplus water, and also as to the alleged negligence of the defendant in the construction of the canal and reservoir. There was not much conflict as to what elements of damage were in fact allowed, by the county court jury in making their award of $1,500. One juror testified that they did not allow plaintiff any damages on account of any seepage which might occur; that the representative of the defendant company who went with them to view the premises assured them that he would puddle the lake so that no water should escape, and that, if there should be any injury caused by seepage, plaintiff could have his action in court therefor. Another juror testified that he thought there was some damage taken into consideration by reason of the seepage from the lake, but could not .state whether any damages were allowed upon that ground. The county judge testified to visiting the premises with the jury in company with plaintiff and the representative of the defendant company. He corroborated the juror in reference to the assurance given that the lake should be so constructed that there would be no seepage. He also testified that the question of injury to plaintiff’s land by seepage from the lake was considered, but'of course he could not state what elements of damages were actually allowed. The instructions to the county court jury were admitted in evidence on the trial in the district court on the ground, as the court remarked, of “ having a tendency to show what in all reasonable-probability the jury took into consideration in awarding the verdict. The transaction in the county court is practically matter in pais, because the court was without jurisdiction.”
In submitting the case to the jury in the district court the nature of the case, together with the claims and defenses of the respective parties, were set forth at consid*446erable length. That portion of the charge to which the assignments of error principally relate is, in substance, as follows: That the plaintiff claimed nothing on account of the land taken for the lake, nor any damages to the residue of his land, except on the ground that since the construction of the lake and the turning of the water therein there had been seepage through the embankments or bottom thereof, saturating and flooding his land, and so injuring and depreciating its value for any useful purpose to which it might be put. That the condemnation proceedings in the county court were as matter of law null and void; and that, in determining whether or not plaintiff had received any compensation from defendant for damages occasioned by such seepage, the jury were to consider the condemnation proceedings the same, as other facts showing or tending to show whether or not plaintiff received such compensation. That plaintiff, having accepted the amount awarded by the county court jury, could not recover in this action, unless there had been injuries to plaintiff’s land resulting from seepage from the lake which were unforeseen, and which were not and could not be fairly anticipated or estimated at the time of the trial in the county court. That plaintiff could not accept the fruits of a, judgment, and then deny its force and validity as to everything fairly included in the litigation. That the legal presumption is that the jury and the parties considered in their assessment of damages in the county court all damages which would result from the construction and the use of Lake Archer, such as the impairment of the value of the property remaining on account of the taking of a part of it, incon-veuience of access, from embankments, ditches or cuts, and also from leakage from the canal or lake, so far as the same could be reasonably foreseen, anticipated or estimated; but not damages which might result from negligence or unskilful construction of the work. That if defendant constructed the lake so that the water, when *447turned therein, seeped or leaked through the banks or bottom thereof, and ran through and upon the plaintiff’s land, thus saturating and overflowing the same, causing injury thereto, then plaintiff was entitled to recover the damages occasioned by such seepage or leakage, unless the $1,500 paid by defendant in pursuance of the proceedings in the county court included the damages occasioned by such seepage or leakage, and was accepted by plaintiff in settlement and satisfaction thereof. That if said $1,500 did include, and was so paid and accepted in settlement and satisfaction of, said damages, then it was a settlement and payment once for all; and that plaintiff could not recover, even though the sum so paid was not sufficient to include and cover said damages. The amount involved in the condemnation proceedings in the county court being in excess of $2,000, that court was without jurisdiction over the subject-matter of the litigation, and the record and judgment in the case as a matter of law were of no validity whatever. This question has been expressly decided by this court, though at the time of the condemnation trial in the county court, and at the time of the commencement of this action in the district court, the decision had not been rendered. Railway Co. v. Church, 7 Colo. 143; Railway Co. v. Otis, 7 Colo. 198. Thus, the second defense of the answer considered as a plea of res judicata was not sufficient. Such a plea, to be effective, must be supported by the judgment of a court of competent jurisdiction — the judgment must be a valid one. Freem. Judgm. § 252; Wells, Res. Adj..§ 422; Bigelow, Estop. 20, 21; Wixom v. Stephens, 17 Mich. 518.
Notwithstanding the record and judgment of the county court were void as a matter of law, yet, inasmuch as the defendant paid and the plaintiff accepted the amount awarded by the jury, the transaction became binding as a matter of fact as to everything actually included in the award. It was as though defendant had, upon a private *448negotiation with the plaintiff, bought and paid for the lands actually taken for the construction of Lake Archer, and had settled and paid the damages which the parties actually decided would result to the residue of plaintiff’s lands by reason of the construction and use of said lake. The fact that the parties accomplished this negotiation through the intervention of a so-called judge and jury neither enlarged nor diminished the scope or effect of the transaction. The whole proceeding was coram non judice, and though in form made matter of record was in fact only matter in pais. Had the judge and jury only assumed to act in the capacity of private individuals in negotiating a settlement of the controversy between the parties, their counsel and advice as to the terms of the settlement would have been just as potent as their so-called verdict and judgment. Hence, the conduct of the parties is not to be tested by the principles of res judicata applicable to proceedings and judgments of a court of competent jurisdiction. We are not called upon to determine, necessarily, what might have been the effect of a judgment in such a proceeding as a matter of law had the same been obtained before a court having jurisdiction over the subject-matter as well as over the parties, but what as a matter of fact was decided by the parties. What controversy did the parties negotiate and settle? What elements of damages were included in the award, and what, if any, were omitted? The parties Avere not bound by those salutary rules of law so jealously enforced by the courts as a matter of public policy for putting an end to litigation, whereby it is held that, legal proceedings having been instituted before a court of competent jurisdiction for the settlement of a controversy between individuals, they shall upon the trial thereof be bound, not merely by what was tried and determined, but by everything fairly embraced in the issues which might have been tried and determined. The parties in the county court,' though acting under the forms *449of law, were nevertheless free to accept or reject the results of the trial. In accepting it they were concluded simply by what they understood as a matter of fact they were settling, as in case of a private contract. If, as a matter of fact, the defendant’s agent or any other person induced the jury to disregard the injury which might result from seepage, so that they did not take that element of damage into account, but expressly left it out of their calculation, with the understanding that plaintiff might bring his action for it if such injury should ultimately ensue, then in this action the district court was right in declaring the liability of the defendant upon the precise ground which it had thus voluntarily chosen. The condemnation proceeding in the county court was a nullity, except so far as the parties gave vitality thereto by their subsequent conduct; and then it took effect, not as a judgment, but as evidence of a simple contract executed between the parties. 2 Phil. Ev. 35, 136, 137, and notes; Wood v. Jackson, 8 Wend. 10; Hawley v. Harrall, 19 Conn. 152. A judgment voidable for want of jurisdiction over the person may perhaps become effective, by the laches, acquiescence, acceptance or other like conduct of the party otherwise entitled to impeach it. But when it affirmatively appears of record that a court assuming to pronounce a judgment has no jurisdiction whatever over the subjéct-matter thereof, no subsequent conduct of the parties can give force or validity to such proceeding as a judgment. They may make the so-called judgment the basis of a contract between them, and so affect property rights and rights of action specified therein; but it is nevertheless only a contract, or the evidence of a contract, and subject to all the incidents of a contract. It does not partake of the nature or incidents of a judgment. Freem. Judgm. secs. 116-120; Gilliland v. Sellers, 2 Ohio St. 223; Bowie v. Findly, 55 Ga. 604; Wamsley v. Robinson, 28 La. Ann. 793. Hence, when such void proceedings are relied on for any pur*450pose, they are subject to the same rules of evidence as private writings; and parol evidence may be resorted to, not only to show what was the subsequent conduct of the parties in reference to such void proceedings, but to supplement the record itself, as a private writing, when it is incomplete or contain^ any latent ambiguity; also to explain general recitals of fact, as well as to show and identify the subject-matter and circumstances of the transaction, 1 Greenl. Ev. sec. 275 et seq.; 2 Phil. Ev. 718, and notes. The petition, verdict, judgment and receipt of the plaintiff, produced in evidence from the records of the county court in said condemnation proceedings, speak of damages to plaintiff’s land, but do not specify or identify any particular element of such damages,— none of these writings refer to damage from seepage or from any other particular cause. Under such circumstances it was undoubtedly competent to show by parol what particular damages were thus considered, decided upon, paid for and accepted. This may often be done, even when a valid judgment is relied upon as a bar to a second suit; a fortiori if the so-called judgment be absolutely void. Parker v. Thompson, 3 Pick. 429; Cist v. Zeigler, 16 Serg. & R. 285; 2 Phil. Ev. 19.
Leaving out of consideration the question of negligent, construction, about which no question of law has been presented, it will be observed that by the instructions given in the district court the plaintiff’s right to recover was made to depend upon two conditions: First, that the $1,500 accepted by him did not include the damages sued for; second, that the damages sued for were unforeseen, and could not be fairly anticipated or estimated at the time of the trial in the county court. Whether or not in the construction of canals or reservoirs injury by seepage to adjoining lands not taken is to be considered an element of damage which the improvement may reasonably be expected to produce as an ordinary and probable consequence is a most difficult and vexatious ques*451tion; but, according to the view taken by this opinion, it is unnecessary to decide such question in the present action. For if the $1,500 was not, as a matter of fact, paid by defendant nor accepted by plaintiff as a settlement and satisfaction for any damage that might result from seepage from defendant’s lake, then the plaintiff, if he had suffered such damages, was clearly entitled to recover them in this action, whether they could or could not have been foreseen, anticipated or estimated at the time of the county eofirt trial. The acceptance of the money awarded in that void proceeding did not estop plaintiff from recovering what was not, as a matter of fact, included in the award. ■ If, therefore, the plaintiff should succeed in establishing the first condition upon which his right of recovery was made to depend, it was erroneous to require him to establish the second. An undue burden was thereby imposed upon him by the instructions of the district court in that respect; but it was an error favorable to the unsuccessful party, and therefore does not require a reversal of the judgment. Patterson v. Hitchcock, 3 Colo. 533; McClelland v. Burns, 5 Colo. 390; Leitensdorfer v. King, 1 Colo. 436. It may be said that, since the burden of this double issue was voluntarily assumed by plaintiff in the district court, he should not be relieved of it in this court. This argument would have some force if plaintiff had failed in obtaining a verdict and judgment, and were here asking for relief on that ground. Under such circumstances he could not, with much grace, be heard to complain that he had been weighed down and defeated by an unnecessary burden of his own choosing. On the other hand, I am not aware that the law imposes any penalty upon the party who has succeeded against such odds; nor does it, in my opinion, devolve the duty upon this court to determine the doubtful question of law involved in such unnecessary issue.
Thus far this opinion was prepared before the majority *452opinion was written, and before the other members of the court had agreed as to the decision of the case. My embarrassment is now greatly increased, for the reason that it cannot be truthfully said that I did not sit in the case nor that I concur in the conclusion. Neither do I wish to dissent from the reversal of one of my own judgments at nisiprins, without giving reasons therefor, especially after having so reluctantly participated in the review as in this instance. This opinion is therefore filed with a single additional comment: It seems to me that the issue tried in the district court has been misapprehended, as appears from the following language in the majority opinion: “The jury were left, however, to determine whether the damages claimed might have been reasonably foreseen or anticipated by the jury in the condemnation proceedings, and, if not, they were instructed that the appellee (plaintiff) might recover for such damages in this action.” I must insist that the vital and controlling question submitted to and determined by the district court jury in this action was: “Did the so-called county court jury in their so-called verdict allow plaintiff any damages on account of injuries to his land by seepage?” The instructions to the jury were to the effect that, if such damages were allowed to the plaintiff by the county court jury, then he, having accepted the same, could not recover again; but that if the county court jury did not make such allowance, then, and then only, could the plaintiff recover in this action upon proof of the other material allegations of his complaint.
Reversed.