delivered the opinion of the court.
The object of this action, as tried in the district court, was to restrain the defendant company, which had made a valid appropriation of water from a public stream for furnishing power to its mining stamp mill, from discharging into said stream at a point therein above the head gate of plaintiff’s ditch, through and by means of which plaintiff had made a subsequent appropriation of water for generating electricity for lighting and power purposes, the tailings carried from said mill in suspension with the water. The decree of the-district court is in the following language:
“It is therefore considered, adjudged and decreed by the court that an injunction issue, as prayed in plaintiff’s complaint, requiring defendant * * * to absolutely refrain and desist from directly or indirectly washing or permitting the tailings from its mill to be washed or flow into the Howard’s Fork of the San Miguel river, or into or upon the flume, pipe line or other property of plaintiff, save and except such tailings as may reach the stream after the defendant has utilized reasonable and necessary appliances and taken reasonable and necessary precautions to prevent the same.”
Plaintiff in error (plaintiff below) excepted to, and is dissatisfied with, only that portion italicized by us and prose-, cutes this writ of error to eliminate it from the decree.
Assuming that we have jurisdiction to entertain a writ of error in this character of an action, we are clearly of the. opinion that plaintiff in error, under the facts of this case,, is not in a position to prosecute it. ' The objection to con-, sidering it has not been formally, or at all, interposed by the defendant in error; but in the course of argument of counsel on both sides our attention has been called to the fact that the defendant in error here has appealed from this decree *470to the court of appeals, where, upon consideration, the same has already been affirmed in its entirety. See 9 Colo. App. 407; 48 Pac. Rep. 828. Even though counsel on both sides may desire a review, the precedent that we would establish by passing upon the merits is of such importance that the court, sua sponte, raises the point of practice.
Whether this writ of error was sued out before or after the appeal of the defendant in error to the court of appeals was perfected, is quite immaterial. That court had unquestioned jurisdiction to review the decree in all its provisions; and when its jurisdiction once attached, it was not only within its power, but it was its duty, to retain jurisdiction for all purposes, and adjudicate every question in issue, and settle all the rights of both parties in so far as they were raised by the assignment of errors; and if the court saw fit, it might go outside the assignments and notice and determine any other error appearing of record. Rule 15, court of appeals. The record in the court of appeals case shows that the very question here presented was there determined. Elliott’s Appellate Procedure, §§ 18, 91, 415, et seq.
It is obvious what confusion would result were this court to entertain a writ of error or an appeal under a state of facts like that disclosed in this record. If such a review were had, this court, under the well-established practice [Rule 13), even in the absence of an assignment of cross-errors by appellee or defendant in error, might, upon a review of that portion of the decree objectionable to plaintiff in error, of its own motion review the entire record, if the first assignments of error did not require it, and determine all questions raised therein, and might arrive at a conclusion entirely different from that reached by the court of appeals, and reverse the judgment of the trial court in its entirety; or it might sustain the present position of plaintiff in error, and reverse in part, and in all other particulars affirm. There would then be two judgments,—one in the court of appeals affirming this judgment of the trial court in its entirety, and one here reversing it,—each antagonis*471tic to the other; or, on the other hand, one affirming the judgment in all its provisions, the other affirming it in part, and partly reversing. A practice that would permit of such result should not he tolerated, unless some statute expressly prescribes it. It not only would encourage litigation by splitting up a cause and trying it piecemeal, but would result in endless confusion and jarring among the courts, be neither just to the parties nor to the court of appeals, and inimical to public justice.
For this reason the writ of error should be dismissed, and it is so ordered.
Writ of error dismissed.
Mr. Justice Gabbert not sitting.