"It is clear therefore that the subsequent conveyance of the land by Conley to plaintiff was a revocation of the offer to dedicate the same as a street," etc.

In Overland M. Co. v. Alpenfels, supra, it is said (perhaps arguendo) that while, by the filing of the plat of an addition to a city, upon which was delineated a street, and the sale of lots with reference to said plat, but where there had been no acceptance by the city so as to constitute such act a commonlaw dedication, owners of the addition would be estopped to deny the existence of such street as a public highway, as between themselves and the purchasers of lots, nevertheless, the city would not be so estopped.

In Town of Manitou v. Int. Trust Co., supra, wherein the principal issue was as to

whether or not there had been a commonlaw dedication to the public of certain tracts of land within the corporate area of the town, the court had under consideration, and referred to and discussed, all the cases hereinbefore cited, and said:

"By these decisions, it is settled: That the sale of lots by reference to a recorded map or plat upon which are shown public places is an offer to dedicate such public places to public use, and that the offer may not be withdrawn at the pleasure of the grantor. That there must be an acceptance, express or implied, of such offer by the public authorities within a reasonable time, and that unless the offer is accepted within a reasonable time the public may lose its right to accept. That the question as to whether there has been an acceptance within a reasonable time depends upon the facts and circumstances of the particular case. That within a reasonable time after an offer to dedicate, as shown by the sale of lots, the public authorities may take possession of public places designated as such on a plat or map, and, in doing so, may rely upon the act of the grantor in making sale of lots by reference to such map or plat. That unless the public authorities, within a reasonable time, accept such offer to dedicate, they lose their right to accept, and the municipality loses its right to the places designated on such plat as public places."

[4] In the application of the law, as so settled, we find that in the instant case it is conclusively shown that there had never been any act on the part of the public authorities of Center indicating an acceptance

of Hurt's offer of dedication of such street; that the street at that point had never been used as a public highway for travel; that no grading or improvement of the same had ever been done by the town, or anything else evincing an intention on its part to use the street as a public thoroughfare; that the town never assumed possession of the street; that defendant built her house on the disputed ground and occupied the same continuously and peaceably for about seven years; that no objection or protest whatever was made on behalf of the town to her so

ant on all material issues involved, we reach the conclusion that the town never accepted Hurt's offer of dedication of said street,

and, upon all the circumstances of this case, is estopped from now asserting any right to defendant's said parcel of land because of said dedication. We are also of the opinion that, as to the municipality, the acts of the owners of the said ground, including the giving of the deed by Hurt to Miles, constituted a revocation of Hurt's offer to dedicate said street, and for that reason the town possesses no legal right to dispossess

the defendant.

We might observe, in conclusion, that while the judgment of the lower court is right and just, and well supported by authority and the record, we are unable to discover wherein the town suffers any serious damage or inconvenience thereby, as it appears from the plat filed by Miles, being a statutory dedication, that Hurt street is still dedicated to the use of the public as a highway, as it has always been, with the exception that its width is reduced to 50 feet, just west of the disputed premises, which would still appear to be ample for public use in a village of the size of Center.

CUNNINGHAM, P. J., concurs in the conclusion reached, but bases his concurrence entirely upon the question of estoppel in pais.

Judgment affirmed.

(26 Colo. A. 339)

WORKMAN et al. v. STEPHENSON.
(No. 4005.)

(Court of Appeals of Colorado. Dec. 14, 1914.) 1. EASEMENTS (§ 9*)-RIGHT OF WAY-ESTAB

LISHMENT-USE BY TRESPASSERS.

easement over the land of another for a way One asserting under a parol agreement, an and for a drainage ditch without having used the land as a driveway or for a ditch cannot rely on the fact that trespassers used the way.

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 25, 27-33; Dec. Dig. § 9.*] 2. FRAUDS, STATUTE OF (§ 60*)-Easements—

RIGHT OF WAY-"INTEREST IN REAL ES

TATE.

A right of way over the land of another is an "interest in real estate," and, if granted by when the statute of frauds is pleaded in bar. express agreement, cannot be proved by parol

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 94, 95; Dec. Dig. § 60.*

For other definitions, see Words and Phrases, First and Second Series, Interest.] 3. LICENSES (§ 58*)-USE OF LAND-REVOCA

TION.

A parol license to use the land of another for a way is revocable until acted on by the li

censee.

TION.

censee paid for the license, but to prevent revocation there must have been use of the land licensed.

of section 7 and on the corner of the said N. W. 4 of the N. E. 4 of said section, which said easement was to be for the purpose of constructing, maintaining, and operating. a ditch for the purpose of irrigating the lands owned by plaintiff, and also for the purpose of

TION.

The common-law rule as to revocability of parol licenses, is modified, especially with regard to irrigation ditches, and a license to enter is, after entry and construction of a ditch, a grant.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. §§ 97-99; Dec. Dig. § 44.*]

6. EASEMENTS (§ 12*) — RIGHT OF WAYAGREEMENTS-VALIDITY.

A parol agreement for a right of way along a line without any agreement as to the width of the way is too indefinite as to the extent and

character of the privilege to sustain a judg

ment to protect it.

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 35-38, 41; Dec. Dig. § 12.*]

to the west side of said section 7." of said land from the lands owned by plaintiff

The complaint further alleges that the plaintiff performed his part of the contract; that the defendant constructed the fence as provided in the agreement, but had fenced the right of way, and at all times refused to permit the plaintiff to occupy the same or to use the land as a driveway, and threatened to maintain the fence and deny plainThe allegations of the complaint as to the tiff's right to use the way in the future. way were denied, and the plea of the statute of frauds interposed. Upon conflicting

KING, J. For convenience, the parties hereto will be called plaintiff and defendant, as in the trial court. Jesse Stephenson, defendant in error, was plaintiff, and Melinda J. Workman defendant. Mrs. Workman

was the widow of Travis D. Workman, and she and her two minor children, as heirs of said Travis D. Workman, were the owners of the N. 1⁄2 of the N. W. 4 of section 7, township 38 north, range 9 E. N. M. M., together with other lands lying east of the tract described. Plaintiff was the owner of a tract of land, the northwest corner of which was coincident with the southeast corner of the tract hereinbefore described. Plaintiff alleged that in the fall of 1911 he entered into an oral contract with defendant whereby

he was to furnish the materials for the construction of a party-line fence between his land and the land of the Workmans lying east of the tract described; that defendant was to construct the fence, after which it should be for the common use of the owners of said lands; that in addition to constructing the fence, the defendant"was to give this plaintiff an easement along the south side of the N. 12 of said N. W. 4

was an oral agreement between plaintiff and Mrs. Workman whereby he was to have a driveway along the south side of the land herein described, "and that subsequent to the granting of said oral license, the said right of way was paid for by the plaintiff, and that the said right of way remained open and was used by the plaintiff and others until the 13th day of May, 1912"; that thereafter the defendants unlawfully erected fences upon the right of way. Judgment was entered, enjoining defendants from constructing or maintaining any fences or other obstructions upon said right of way, and included a mandatory order requiring them to remove the fences already constructed. Defendant admitted that she told the plaintiff he might build a small ditch upon the land belonging to defendant and her children to carry water to plaintiff's lands, denied that she agreed to give him a permanent right of way for road or driveway, but admitted that she told him he could so use it as long as she left it open for her own use; it appearing that it was then uninclosed.

[1] The court's finding that the parol license had been paid for was predicated solely upon the plaintiff's testimony that the consideration for such license was included in the offer of plaintiff to furnish the materials for the fence. The complaint does not allege, and there is no evidence to support the finding of the court, that the alleged license was ever exercised by plaintiff, either by the construction of the ditch or the use of the way. On the contrary, plaintiff's own evidence shows that he made a survey for a ditch and found that he did not need to use defendant's lands therefor, and built his ditch elsewhere. There is not a scintilla of evidence to show that between the date of the agreement and the beginning of the suit, plaintiff had used defendant's land for a way. There is some evidence tending to show that other persons not parties to the alleged agreement or li

no

[3] (2) If the interest claimed by plaintiff was a parol license, as the decree finds it was, it was revocable until acted upon by the licensee, and the act of Mrs. Workman in closing the land to plaintiff's use was a revocation.

[4] Plaintiff insists that the parol license became irrevocable because he paid for the license by furnishing materials for the fence, and the court seems to have so held. Payment of consideration is often an important, but is not a controlling, element in determining whether a parol license is thereafter revocable, but generally there must be other elements. In the instant case it was necessary also to allege and prove the use of the land said to have been licensed. Duinneen v. Rich, 22 Wis. 550; Thoemke v. Fielder, 91 Wis. 386, 64 N. W. 1030; Johnson v. Skillman, 29 Minn. 95, 12 N. W. 149, 43 Am. Rep. 192; Tanner v. Volentine, 75 Ill. 624; White v. Manhattan R. Co., 139 N. Y. 19, 34 N. E. 887; Long v. Mayberry, 96 Tenn. 378, 36 S. W. 1040.

[5] It is true that the common-law rule in regard to parol licenses, which held them revocable, has been modified in this state, particularly with regard to irrigation ditches. De Graffenried v. Savage, 9 Colo. App. 131, 47 Pac. 902; Schilling v. Rominger, 4 Colo. 100, 105; Tynon v. Despain, 22 Colo. 240, 246, 43 Pac. 1039; McLure v. Koen, 25 Colo. 284, 287, 53 Pac. 1058; Arthur Irrig. Co. v. Strayer, 50 Colo. 371, 375, 115 Pac. 724. These cases are cited by plaintiff, but none of them supports the judgment. In De Graffenried v. Savage, supra, 'the claimant of the easement had built an irrigation ditch over certain land with the knowledge and consent of the owner, and had used it for two years. No consideration had been paid. The court said that in this arid country a right of way for irrigation ditches is granted ex necessitate, and held that:

"In cases of this kind the license to enter, after entry and construction of the ditch, op

said that if the easement claimed rested upon a parol license, it might be sustained on the principle that the license was not revocable so far as it had been executed. In McLure v. Koen, supra, the court said: "It is well settled in this jurisdiction that, although an oral contract relating to realty is within the statute, where a consideration has passed, and it has been fully performed by both parties and the possession taken in pursuance thereof, the bar of the statute is removed, and equity will enforce the right thus acquired."

That case and the case of Arthur Irrig. Co. v. Strayer, supra, involved the right of way for irrigation ditches. The easement was sustained, because of the user for several years.

ment.

[6] (3) The terms of the alleged agreement, as disclosed by the evidence, were too indefinite and uncertain, as to the extent and character of the privilege, to sustain a judgThere was neither allegation nor proof as to the location of the way, except the indefinite statement that it was to be "along the south line"-no width agreed upon, nor talked of in fact-nothing of the definiteness and certainty usually found in and necessary to the creation of interests in real estate.

[7] There is another matter which we think worthy of consideration: The decree sought to limit its effect to the defendant only, by reciting that the injunction should not be construed to affect the rights of the minor children, who were owners of an undivided half interest in the land; but it is evident that, if the mother of the minors be compelled to remove the fences, the interests of the minors will be subjected to the easement, unless they shall institute some proceeding to prevent its being so used. We think the mother, as the natural guardian of her children, has the right, and it may be her duty, to protect their interests during their minority by fencing against trespassers, and for that reason she could do in her representative capacity what she is by the court enjoined from doing in her own interest. Equity will not order a useless thing to be done.

The judgment is reversed and cause remanded, with instructions to dismiss the action at the costs of the plaintiff. Reversed and remanded.