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are matters which should have appealed to 343, 68 Pac. 241; People v. Weeber, 26 Colo. the Legislature; but the Legislature, having 229, 57 Pac. 1079. Other authorities to the before them the laws of other states contain- same effect are In the Matter of an Attoring more liberal provisions with respect to ney, 86 N. Y. 563; In re Wellcome, 23 Mont. such matters, did not make provisions for a 213, 59 Pac. 47. rebate of interest under such conditions, and Deinurrer sustained. this department, therefore, cannot grant relief. Under the authority of the New York and
(36 Colo. 246) Pennsylvania cases we have cited holding
BOARD OF COM'RS OF LAS ANIMAS that interest is properly chargeable and col
COUNTY v. PEOPLE ex rel. lectible, we hold that the county court prop
MCPHERSON. erly charged interest upon the taxes from the (Supreme Court of Colorado. Jan. 8, 1906.) date of the death of the testator, and that WRIT OF ERROR-DISMISSAL-ACADEMIC QUESportion of the judgment is affirmed. The
The writ of error to a judgment granting judgment is reversed as to that portion there
mandamus commanding county commissioners to of which credits, on account of costs and ex- establish an election precinct at a certain place penses, the sum paid I. Harry Stratton, and will be dismissed, such precinct having been es
tablished, of which the court will take judicial the court is directed to render' judgment in
notice, so that there is no live question to be accordance with the views herein expressed. decided.
[Ed. Note. For cases in point, see Cent. Dig. GODDARD, J., not participating.
vol. 3, Appeal and Error, $ 3122.]
Department 3. Error to District Court,
Las Animas County; Jesse M. Northcutt, (36 Colo. 126)
Judge. PEOPLE ex rel. COLORADO BAR ASS'N v. Mandamus by the people, on the relation THOMAS.
of Frank McPherson, against the board of (Supreme Court of Colorado. March 5, 1906.) county commissioners of Las Animas county. ATTORNEY AND CLIENT - DISBARMENT--FOR- Writ granted, and defendant brings error. MER ACQUITTAL ON CRIMINAL CHARGE.
Dismissed. An acquittal of an attorney on a criminal charge is not a bar to a proceeding for disbar
Everett Bell and A. P. Anderson, for plainment based on the same facts.
tiff in error. Robert Bonynge, for defendant [Ed. Note.-For cases in point, see Cent. Dig. in error. vol. 5, Attorney and Client, 8 71.]
En Banc. Original proceeding in disbar- PER CURIAM. A complaint was filed ment by the people, on the relation of the in the district court of Las Animas county, Colorado Bar Association, against William reciting that a petition was filed with the J. Thomas. Relator demurs to the answer. board of county commissioners of said counDemurrer sustained.
ty praying for the establishment of an elecL. F. Twitchell, for petitioner. Thomas
tion precinct at Primero in said county, but Ward, Jr., A. M. Stevenson, and Milton Smith,
that the county commissioners had refused to for respondent.
act, and praying for a writ of mandamus
commanding the commissioners to establish GUNTER, J. The information herein char- an election precinct at said Primero. A de ges respondent with the crime of embracery. murrer to the complaint was filed and was The answer denies the allegations of the in
overruled, and judgment entered granting the formation, and sets up two affirmative de
writ. The board of commissioners took the fenses, each entitled "Further and separate case to the Court of Appeals by writ of erAnswer.” The one of these affirmative de- ror'. fenses alleges that respondent was proceeded We shall take judicial notice of the fact against in a criminal action for the same that there has been a precinct established at crime as that charged in the information,
Primero in said county. It is not material embracery, and acquitted thereof. The other whether the precinct was established upon sets up a proceeding for contempt, and an ac- proper petition or by virtue of authority so quittal thereof. A general demurrer pre to do under the statute. There being no live sents the question of the sufficiency of these question for us to determine, the cause two defenses.
should be dismissed. It is contended by counsel that the same Dismissed principle obtains as to both defenses; that is, if the acquittal in the criminal proceeding is not a complete defense to this action for
(40 Colo. 366)
GYRA V. WINDLER. disbarment, then the acquittal in the action for contempt is likewise not a defense. That
(Supreme Court of Colorado. July 1, 1907.) the acquittal upon the criminal charge is EASEMESTS-PRESCRIPTION-RIGHT OF WAY. not a defense to a proceeding for disbarment,
I’laintiff refused to purchase a tract of
land from defendant's brother-in-law unless de based upon the same facts, is stare decisis in
fendant would give a right of way across his this jurisdiction. People v. Mead, 29 Colo. land for ingress and egress, which was given by defendant by parol, and thereafter plaintiff el over Thompson's land, there was no obused the way for over 20 years and made im
jection raised to his using the road until Sepprovements in reliance on the permission. Held, that plaintiff was entitled to an injunction re
tember, 1903, something more than 20 years, straining defendant from obstructing the way.
at which time appellant sent appellee a writ. [Ed. Vote.--For cases in point, see Cent. Dig. ten notice that he intended to close the gate vol. 17, Easements, $$ 24, 27, 28.]
at the fence on the northwest quarter of secAppeal from District Court, City and Coun
tion 24 opposite appellee's house, and gave ty of Denver; F. T. Johnson, Judge.
appellee 60 days' time to quit going through Suit by Henry Windler against Rudolph appellant's property. Upon this state of Gyra. From a decree in favor of plaintiff,
facts, appellee brought an action for injuncdefendant appeals. Reversed and remanded.
tion, alleging the ownership of his land; that
the defendant owned the northwest quarter Theodore H. Thomas, for appellant. Whit
of section 24 and other lands, and “the plainford & May, for appellee.
tiff is the owner of an easement in and a
right of way through, over and across the BAILEY, J. In the year 1875, Detlef Mol
northwest quarter of said section 24," deler made a homestead filing on the north
scribing the line thereof with reasonable cereast quarter of section 24, township 3 south, tainty; that appellant threatened to close the of range 66 west. He built a house near the
road; and that appellee had no other way west line of the quarter section and about to reach the public road. Defendant answera quarter of a mile north of the south line ed the complaint, and the matter went to of the quarter section. He also had a half
trial to the court without a jury. The court section of railroad land and a timber claim.
found that appellee was the owner of the Mr. Thompson, the brother-in-law of Moller, right of way, and made a decree restraining settled upon the northwest quarter of section defendant from interfering with the use of 24 in the spring of 1875. There was a coun- it, and also providing that the right of way ty road running north and south along the
was 35 feet wide. The action is brought here west line of section 24. In order to reach
upon appeal. this county road, Moller went in a westerly
The principal contention of appellant is direction across Thompson's land; Thomp- ; that whatever grant was made by Thompson son consenting to this arrangement for a was a mere license or permission which while, when he objected. Moller then told
could be revoked at the pleasure of the libim that, unless he could continue to use
censor. The finding of the trial court is this way across Thompson's land, it would
against the contention of appellant as to this be necessary for him to condemn a right of
proposition. The court distinctly found that way across the north line of section 24.
Thompson, “knowing that the plaintiff would Thompson did not want this to be done, be
not make such purchase without such easecause he owed the land north of section 24, ment and right of way aforesaid, then and and it would be more injurious to his prop- there gave and granted to the plaintiff the erty to have a road laid out along the north
easement and right of way aforesaid for the line than to permit Moller to use the road
purpose aforesaid for a valuable and meriacross his place. So Moller was permitted torious consideration; that said easement to continue to use it. In the spring of 1883, and right of way was to be permanent, and Moller sold his property to appellee, Windler. not terminable at the will of said ThompWindler declined to purchase the land un- son.” This finding is supported by the testiless some way was provided for him to reach
mony and will not be disturbed. Where the the public highway at the west of Thomp- donee of a right of way across the property son's place. He wanted a road laid out along of another, which has been granted, not by the north line of the section. Thompson ob- deed, but by parol, has uninterruptedly used jected to this because it would be more in- the same for more than 20 years, with the jurious to his property than to have Windler knowledge, consent, and acquiescence of the continue to use the road which had thereto- donor and his grantees, where he has made fore been used by Moller. So Thompson gave improvements and expended money because Windler the right to use the road across his of the grant, and where he would not have place as the same had been theretofore used. purchased the property to which the right of This gift was by parol. No writing of any way is pertinent except for the granting of kind was made. It seems to have been gir- ! the same, his right to the use thereof may en by Thon:pson because Windler declined not be terminated by the donor or his granto buy the property from Thompson's broth- tees. The following appears to be the rule er-in-law unless he could have a road con- in such cases: “But though a right of way necting him with the public highway. Some cannot be gained by the parol agreement of time later Thompson sold his property to him who creates it, yet where, under such Tilden, and Tilden sold to appellant in 1890. agreement, the owner of the dominant esIn 1894, appellee constructed a new eight- tate used the way thus created for 20 years, room brick dwelling upon his land at the and the same was acquiesced in by the owner terminus of the road across appellant's land. of the servient estate, it was held to be such From the time appellee purchased the land : an exercise of the way, under a claim of right, from Moller and was given the right to trav- as to gain thereby a prescriptive right to the same. And it is no objection to gaining an any testimony as to its width. The conteneasement by prescription that the same
was tion of appellee was that he was entitled to originally granted or bargained for by parol. an easement for a roadway, and under the That the use began by permission does not findings of the court and the testimony he is affect the prescriptive right, if it has been entitled to such easement to the width and used and exercised for the requisite period, extent as heretofore used. In the absence of under a claim of right on the part of the any proof defining the same, the court may owner of the dominant tenement." Wash- not specify its width. burn's Easements & Servitudes (4th Ed.) *89.
Appellant contends that the court erred in To the same effect, see Hufrv. McCauley, the admission of testimony as to the price 53 Pa. 206, 91 Am. Dec. 203; Ashley v. Ash- wbich appellee paid for the land he bought ley, 4 Gray (Mass.) 197; Jewett v. Hussey, from Moller, and as to his construction of his 70 Me. 433; Stearns v. Janes, 12 Allen (Mass.)
residence at the end of the road. This tes582; Lane v. Miller, 27 Ind. 534; Clark v.
timony was pertinent as tending to show Glidden, 15 Atl. 358, 60 Vt. 702; Town of that appellee had placed himself in a position Spencer v. Andrew, 47 N. W. 1007, 82 Iowa, and had expended money which he would 14, 12 L. R. A. 115; Messick v. Midland Ry.
not have done but for the making of the Co., 27 N. E. 419, 128 Ind. 81; Campbell v. grant and the acquiescence therein by appelInd. & V. R. Co., 11 N. E. 482, 110 Ind. 490.
lant. Even though the contract between Thomp
We have carefully examined the record son and appellee should be construed as a and the testimony in this case, and have conmere license, yet the rule is that an executed cluded that the findings and decree are parol license cannot be revoked: “A parol
abundantly supported by the same, except as license to erect a dam upon another's land,
to the width of the roadway. The judgment or to convey water from a stream running
will therefore be affirmed in all matters exthrough the land of another for the purpose | cept that portion of the decree which proof erecting and conducting a flouring mill, is
vides that the right of way should be 35 feet
wide. in our opinion irrevocable after the party to
As to that, it will be reversed and whom the license was given has executed it
remanded, with instructions to modify the by erecting the mill or otherwise expended
decree in accordance with this opinion. his money upon the faith of the license." Lee
Reversed and remanded. V. McLeod, 12 Nev. 284. "The principle that
STEELE, C. J., and GODDARD, J., conexpending money or labor in consequence of
cur. a license to divert a water course or use a water right in a particular way has the effect of turning such a license into an agree
(40 Colo. 392) ment that will be enforced in equity has been
PECK V. ALEXANDER. frequently announced by the courts. In all (Supreme Court of Colorado. July 1, 1907.) such cases, the execution of the parol license
1. PARTNERSHIP-RIGHTS OF PARTNERS-Comsupplies the place of a writing and takes the PENSATION. case out of the statute of frauds." Id.
One partner cannot charge his copartners “While a parol license to enter upon real es
with any sum for compensation on account of
his services in conducting the partnership busitate is generally revocable at the pleasure ness, in the absence of an agreement to that efof the licensor, it is settled that such license
fect. cannot be revoked when the licensee, on the
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 38, Partnership, § 131.] faith of the license, with the knowledge of
2. REFERENCE-FINDINGS-EFFECT. the licensor, has expended his money and
Under the express provisions of Mills' Ann. labor in carrying out the object of the license.
Code, ş 212, the findings of a referee on the This is on the principle of estoppel.” School
whole issue stands as the finding of the court, District v. Lindsay, 47 Mo. App. 136. To the
and on filing the same with the clerk judgment
is to be entered thereon in the same manner as same effect, see Schilling v. Rominger, 4 Colo.
if the action had been tried by the court, unless 105; Tynon v. Despain, 22 Colo. 240, 43 Pac. objected to by either party by filing a motion 1039; De Graffenried v. Savage, 9 Colo. App.
for a new trial. 135, 47 Pac. 902; Rerick v. Kern, 14 Serg.
(Ed. Note.-For cases in point, see Cent. Dig.
vol. 42, Reference, 88 148–156.] & R. 271, 16 Am. Dec. 497; Sumner v. Stev
3. APPEAL AND ERROR-PRESUMPTIONS-NEW ens, 6 Metc. (Mass.) 338; Arbuckle v. Ward,
TRIAL. 29 Vt. 52; Snowden v. Wilas, 19 Ind. 14, 81 On appeal it will be presumed, in the abAm. Dec. 370; Talbott v. Thorn, 91 Ky. 417,
sence of a showing to the contrary, that on a
motion for a new trial the court examined the 16 S. W. 88.
testimony and did every other act imposed upon In rendering its decree, the court said: it by law and practice. "It is further ordered, adjudged, and decreed [Ed. Note.--For cases in point, see (ent. Dig. that the width of said right of way is 1742 vol. 3, Appeal and Error, $$ 3783–3787.] feet on each side of the center of the present Appeal from District Court, City and Countraveled way over and along the entire ty of Denver; F. T. Johnson, Judge. course of said private roadway." There is Action by Ira F. Peck against J. W. Alexno allegation in the complaint as to the ander. From a judgment in favor of defendwidth of the right of way; neither is there ant, plaintiff appeals. Affirmed.
W. T. Rogers and F. W. Barry, for appellant. John H. Chiles, for appellee.
open court. There having been sufficient evldence to support the findings and judgment, this court is bound by the findings and judg. ment in the court below. There was a motion for a new trial, which was overruled, and appellant alleges that the court below,erred in overruling the exceptions and ordering judg. ment without an examination of the testi. mony-citing Jones V. Van Horn, 28 Colo. 126-128, 63 Pac. 307. Our attention is not called to any portion of the record showing that the court below did not examine the testimony in the exceptions filed. The presumption is that the court did examine same, and did every other act imposed upon it by law and practice, unless the contrary affirmatively appears by the record. The burden is upon appellant to bring to this court by the record and point out specifically the errors relied upon. In the absence of such showing, the presumption is that the court did its full duty.
The judgment is affirmed.
STEELE, O. J., and MAXWELL, J., concur.
CASWELL, J. Appellant, as plaintiff below, brought suit against appellee in the district court for the city and county of Denver. Complaint alleges in substance that parties were partners for the purpose of developing a certain mine, and that the plaintiff had advanced large sums of money to the enterprise, being not less than $600, and that the defendant was indebted to him in such amount and asked for an accounting. The answer is a general denial. The case was referred to George W. Allen, Esq., as referee, to make a full and complete finding on the law and the facts in the case and report thereon. It appeared at the trial that the indebtedness arose, if at all, by virtue of certain charges on the part of plaintiff for salary while engaged in the management and superintendence of the enterprise. The referee held as matter of law that one partner cannot recover from another for services in partnership affairs without express contract to that effect between them. At page 774, vol. 2, Lindley on Partnersbip, it is stated that “under ordinary circumstances the contract of partnership excludes any implied contract for payment for services rendered for the firm by any of its members. Consequently, under ordinary circumstances, and in the absence of an agreement to that effect, one partner cannot charge his copartners with any sum for compensation, whether in the shape of salary, commission, or otherwise, on account of his own trouble in conducting the partnership business, and in this respect is in no different position from any other partner." See, also, Nevills v. Moore Mining Co., 135 Cal. 561, 67 Pac. 1054, and cases cited. In the latter case, in addition to the rule laid down above, it is further stated: “The question is one of evidence, and it was for the trial court to determine whether, from the facts and circumstances, a contract was proven."
In the case at bar the testimony concerning the contract was conflicting. The referee found as a fact that there was no sucb contract between the parties hereto, that the plaintiff was not entitled in its absence to charge a salary, and that the defendant had paid slightly inore than his proportion of the amount agreed to be paid as his share for the development of the mine. There is sufficient evidence to support this finding. Under our Code, “the findings of the referee upon the whole issue sall stand as the finding of the court and upon filing the same with the clerk, judgment shall be entered thereon in the same manner as if the action had been tried by the court unless objected to by either party by filing a motion for new trial as hereinafter provide:1.". Mills' Ann. Code, § 212. Under the circumstances of this case, the find. ings are entitled to the same consideration as the verdict of a jury, or the findings of the court based upon like evidence produced in
(36 Colo. 395) O'DONNELL V. CHAMBERLIN et al. (Supreme Court of Colorado. March 5, 1906.
Rehearing Denied May 7, 1906.) 1. SALE-OPTION CONTRACT_PAYMENT_TENDER.
A tender to the bank, though coupled with a demand for delivery of the notes and assignment of the decree, operates as a payment, for the purpose of saving the rights of plaintiff under the contract of defendant's testate, giving F., plaintiff's assignor, an option to purchase notes and a decree within a certain time, and providing: "On payment of said sum within the time aforesaid, * * * I hereby agree * to deliver said two notes and assign* the said decree, and payment of said sum
may at the option of said F * * * be made by deposit
F ing said sum to my credit" in a certain bank. 2. SPECIFIC PERFORMANCE-REMEDY AT LAW.
Specific performance of a contract to sell to plaintiff notes secured by mortgage on a hotel, and the decree, based thereon, declaring them a first lien on the hotel, and ordering sale of the hotel to satisfy the indebtedness, will be granted; plaintiff having made the contract in furtherance of his desire to become owner of the hotel, and the remedy at law not being adequate. Gobbert, C. J., and Bailey, J., dissenting..
En Banc. Appeal from District Court, City and County of Denver; S. L Carpenter, Judge.
Action by T. J. O'Donnell against Carl Chamberlin and another, executors of Winfield Scott Stratton, deceased, and another. From a judgment sustaining a general demurrer to the complaint, plaintiff appeals. Reversed.
Sterling B. Toney, John W. Graham, Jr., T. J. O'Donnell, and John M. Waldron, for appellant. E. E. Whitted, O. L. Dines, and P. H. Holme, for appellees.
GUNTER, J. This was an action for spe- notes, or an assignment of said decree, and cific performance against the United States could not accept said tender or comply with Mortgage & Trust Company and the exec- said demand for that reason." On the same utors of the last will of Winfield Scott Strat- date, September 24th, appellant made known ton, deceased. A general demurrer to the to said executors his desire to comply with complaint was sustained, and, as the appel- the terms of said agreement and secure the lant (plaintiff) stood upon her complaint the assignment and transfer of said decree and action was dismissed, the question therefore notes, and demanded that said executors before us is: Does the complaint state facts should make such transfer, and said execsufficient to constitute a cause of action? utors refused to make the transfer, and have The facts so presented, so far as pertinent to since so refused. the first ground urged why the judgment be- 1. Appellees contend that the tender of low, holding that the complaint does not state September 24th was not an acceptance of the a cause of action, should stand, are: July offer extended by the contract, and therefore 26, 1902, Stratton made the following con- a contract to deliver the notes and assign tract: “I, Winfield S. Stratton *
in the decree did not arise. The contract proconsideration of one dollar to me in hand vides: "On payment of said sum promptly paid by and for other valuable consideration within the time aforesaid * * * I hereby moving to me from Michael Finnerty, * * agree
to deliver said two notes do hereby give and grant unto said Finnerty,
本 and assign *
the said dehis executors, administrators and assigns, the cree
as said Finnerty right and option to purchase
the may direct, and payment of said sum rights, benefits and sums of money decreed may at the option of said Finnerty to the plaintiff • in that certain cause be made by depositing said sum to my credit. The United States Mortgage and
*" This, in terms, was a promise to Trust Company, Plaintiff, vs. Henry C. Brown deliver and assign when payment should be et. al., Defendants, * * and the two made, and a stipulation that payment might certain notes inade by the said IIenry C. be made at the option of Finnerty, or hi Brown to said plaintiff, one for $100,000, an- signees, by making the deposit in the manner other for $500,000, secured by the mortgage recited in the contract. The offer to make to said plaintiff described in said decree the deposit appellees say did not amount to * *
for the sum of six hundred and a tender, and was not equivalent to a payfifty thousand dollars ($650,000), to be paid ment for the purpose of saving rights under on or before sixty days from this date, and on the contract, because there was coupled with payment of said sum promptly within the it a demand for contemporaneous delivery of time aforesaid, time being of the essence the notes and an assignment of the decree. If thereof, I hereby agree for myself, my exec- the offer made to the bank September 24th utors and administrators, to deliver said two operated as a payment for the purpose of notes with the same amount due thereon as avoiding the loss of rights under the confound by said decree *
* and assign tract, then appellant accepted the offer made or procure to be assigned the said decree by the contract within the time limited there
as the said Finnerty, his executors, by; that is, he satisfied the condition upon the administrators or assigns, may direct,
performance of which Stratton had promised and payment of said sum of six hundred and to deliver and assign. The contract was to fifty thousand dollars may at the option of deliver the notes and assign the decree upon said Finnerty, his executors, administrators payment. When payment was tendered, muor assigns, be made by depositing said sum tual dependent covenants arose, on the one to my credit in the Denver National Bank of part to deliver and assign, on the other to Denver, Colorado.” Within the 60 days nam
"The general rule is to consider all ed in the contract, Stratton died, leaving a covenants dependent, in the absence of a will, whereby he named as his executors ap- contrary intention, for this is the way most pellees, Dines, Chamberlin, and Rice. These men make their bargains, neither party inexecutors, on account of litigation over the tending to perform unless the other at the will, did not qualify until after the lapse of same time performs on his part, and the same the 60 days mentioned in the contract, but is held when no time is fixed for the perdid so qualify before the bringing of this formance by either.” 9 Am. & Eng. Ency. of action. September 24, 1902, after the death Law, 639. "A covenant or obligation to pay of Stratton, appellant, theretofore the assign- and therewith pass title is mutual and de ee of Finnerty, as a compliance with the con- pendent; the one cannot be required before tract, tendered at and to said bank "for the the other is ready to be performed." Barrett use and credit of said Stratton, or his estate, v. McAllister, 33 W. Va. 738, 11 S. E. 220; 2 or the executors thereof, or other persons
Minor's Inst. 779.
"In case of dependent entitled thereto," $654,155.55, and “then and covenants to be performed contemporaneousthere demanded a delivery of said notes and ly, neither party is required to perform until an assignment of said decree as provided in the other does. An offer to perform upon said contract.” But said tender and delivery condition of performance by the other party were refused by said bank for the stated rea- is sufficient." 6 Am. & Eng. Ency. of Law
. son that it had not in its possession said (2d Ed.) 33. “Tender is not invalid because