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are matters which should have appealed to the Legislature; but the Legislature, having before them the laws of other states containing more liberal provisions with respect to such matters, did not make provisions for a rebate of interest under such conditions, and this department, therefore, cannot grant relief.

Under the authority of the New York and Pennsylvania cases we have cited holding that interest is properly chargeable and collectible, we hold that the county court properly charged interest upon the taxes from the date of the death of the testator, and that portion of the judgment is affirmed. The judgment is reversed as to that portion thereof which credits, on account of costs and expenses, the sum paid I. Harry Stratton, and the court is directed to render judgment in accordance with the views herein expressed.

GODDARD, J., not participating.

(36 Colo. 126)



An acquittal of an attorney on a criminal charge is not a bar to a proceeding for disbarment based on the same facts.

348, 68 Pac. 241; People v. Weeber, 26 Colo. 229, 57 Pac. 1079. Other authorities to the same effect are In the Matter of an Attorney, 86 N. Y. 563; In re Wellcome, 23 Mont. 213, 58 Pac. 47.

Demurrer sustained.

(36 Colo. 246)


(Supreme Court of Colorado. Jan. 8, 1906.) WRIT OF ERROR-DISMISSAL-ACADEMIC QUESTIONS.

The writ of error to a judgment granting mandamus commanding county commissioners to establish an election precinct at a certain place will be dismissed, such precinct having been established, of which the court will take judicial notice, so that there is no live question to be decided.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3122.]

Department 3. Error to District Court, Las Animas County; Jesse M. Northcutt, Judge.

Mandamus by the people, on the relation of Frank McPherson, against the board of county commissioners of Las Animas county. Writ granted, and defendant brings error. Dismissed.

Everett Bell and A. P. Anderson, for plaintiff in error. Robert Bonynge, for defendant

[Ed. Note.-For cases in point, see Cent. Dig. in error. vol. 5, Attorney and Client, § 71.]

En Banc. Original proceeding in disbarment by the people, on the relation of the Colorado Bar Association, against William J. Thomas. Relator demurs to the answer. Demurrer sustained.

L. F. Twitchell, for petitioner. Thomas Ward, Jr., A. M. Stevenson, and Milton Smith, for respondent.

GUNTER, J. The information herein charges respondent with the crime of embracery. The answer denies the allegations of the information, and sets up two affirmative defenses, each entitled "Further and Separate Answer." The one of these affirmative defenses alleges that respondent was proceeded against in a criminal action for the same crime as that charged in the information, embracery, and acquitted thereof. The other sets up a proceeding for contempt, and an acquittal thereof. A general demurrer presents the question of the sufficiency of these two defenses.

It is contended by counsel that the same principle obtains as to both defenses; that is, if the acquittal in the criminal proceeding is not a complete defense to this action for disbarment, then the acquittal in the action for contempt is likewise not a defense. That the acquittal upon the criminal charge is not a defense to a proceeding for disbarment, based upon the same facts, is stare decisis in this jurisdiction. People v. Mead, 29 Colo.

PER CURIAM. A complaint was filed in the district court of Las Animas county, reciting that a petition was filed with the board of county commissioners of said county praying for the establishment of an election precinct at Primero in said county, but that the county commissioners had refused to act, and praying for a writ of mandamus commanding the commissioners to establish an election precinct at said Primero. A demurrer to the complaint was filed and was overruled, and judgment entered granting the writ. The board of commissioners took the case to the Court of Appeals by writ of er


We shall take judicial notice of the fact that there has been a precinct established at Primero in said county. It is not material whether the precinct was established upon proper petition or by virtue of authority so to do under the statute. There being no live question for us to determine, the cause should be dismissed. Dismissed.

(40 Colo. 366)

GYRA v. WINDLER. (Supreme Court of Colorado. July 1, 1907.) EASEMENTS-PRESCRIPTION-RIGHT OF WAY.

Plaintiff refused to purchase a tract of land from defendant's brother-in-law unless defendant would give a right of way across his land for ingress and egress, which was given

by defendant by parol, and thereafter plaintiff used the way for over 20 years and made improvements in reliance on the permission. Held, that plaintiff was entitled to an injunction restraining defendant from obstructing the way. [Ed. Note.--For cases in point, see Cent. Dig. vol. 17. Easements, §§ 24, 27, 28.]

Appeal from District Court, City and County of Denver; F. T. Johnson, Judge.

Suit by Henry Windler against Rudolph Gyra. From a decree in favor of plaintiff, defendant appeals. Reversed and remanded.

Theodore H. Thomas, for appellant. Whitford & May, for appellee.

BAILEY, J. In the year 1875, Detlef Moller made a homestead filing on the northeast quarter of section 24, township 3 south, of range 66 west. He built a house near the west line of the quarter section and about a quarter of a mile north of the south line of the quarter section. He also had a half section of railroad land and a timber claim. Mr. Thompson, the brother-in-law of Moller, settled upon the northwest quarter of section 24 in the spring of 1875. There was a county road running north and south along the west line of section 24. In order to reach this county road, Moller went in a westerly direction across Thompson's land; Thompson consenting to this arrangement for a while, when he objected. Moller then told him that, unless he could continue to use this way across Thompson's land, it would be necessary for him to condemn a right of way across the north line of section 24. Thompson did not want this to be done, because he owned the land north of section 24, and it would be more injurious to his property to have a road laid out along the north line than to permit Moller to use the road across his place. So Moller was permitted to continue to use it. In the spring of 1883, Moller sold his property to appellee, Windler. Windler declined to purchase the land unless some way was provided for him to reach the public highway at the west of Thompson's place. He wanted a road laid out along the north line of the section. Thompson objected to this because it would be more injurious to his property than to have Windler continue to use the road which had theretofore been used by Moller. So Thompson gave Windler the right to use the road across his place as the same had been theretofore used. This gift was by parol. No writing of any kind was made. It seems to have been given by Thompson because Windler declined to buy the property from Thompson's brother-in-law unless he could have a road connecting him with the public highway. Some time later Thompson sold his property to Tilden, and Tilden sold to appellant in 1890. In 1894, appellee constructed a new eightroom brick dwelling upon his land at the terminus of the road across appellant's land. From the time appellee purchased the land from Moller and was given the right to trav

el over Thompson's land, there was no objection raised to his using the road until September, 1903, something more than 20 years, at which time appellant sent appellee a written notice that he intended to close the gate at the fence on the northwest quarter of section 24 opposite appellee's house, and gave appellee 60 days' time to quit going through appellant's property. Upon this state of facts, appellee brought an action for injunction, alleging the ownership of his land; that the defendant owned the northwest quarter of section 24 and other lands, and "the plaintiff is the owner of an easement in and a right of way through, over and across the northwest quarter of said section 24," describing the line thereof with reasonable certainty; that appellant threatened to close the road; and that appellee had no other way to reach the public road. Defendant answered the complaint, and the matter went to trial to the court without a jury. The court found that appellee was the owner of the right of way, and made a decree restraining defendant from interfering with the use of it, and also providing that the right of way was 35 feet wide. The action is brought here upon appeal.

The principal contention of appellant is that whatever grant was made by Thompson was a mere license or permission which could be revoked at the pleasure of the licensor. The finding of the trial court is against the contention of appellant as to this proposition. The court distinctly found that Thompson, "knowing that the plaintiff would not make such purchase without such easement and right of way aforesaid, then and there gave and granted to the plaintiff the easement and right of way aforesaid for the purpose aforesaid for a valuable and meritorious consideration; that said easement and right of way was to be permanent, and not terminable at the will of said Thompson." This finding is supported by the testimony and will not be disturbed. Where the donee of a right of way across the property of another, which has been granted, not by deed, but by parol, has uninterruptedly used the same for more than 20 years, with the knowledge, consent, and acquiescence of the donor and his grantees, where he has made improvements and expended money because of the grant, and where he would not have purchased the property to which the right of way is pertinent except for the granting of the same, his right to the use thereof may not be terminated by the donor or his gran

The following appears to be the rule in such cases: "But though a right of way cannot be gained by the parol agreement of him who creates it, yet where, under such agreement, the owner of the dominant estate used the way thus created for 20 years, and the same was acquiesced in by the owner of the servient estate, it was held to be such an exercise of the way, under a claim of right. as to gain thereby a prescriptive right to the

same. And it is no objection to gaining an easement by prescription that the same was originally granted or bargained for by parol. That the use began by permission does not affect the prescriptive right, if it has been used and exercised for the requisite period, under a claim of right on the part of the owner of the dominant tenement." Washburn's Easements & Servitudes (4th Ed.) *89. To the same effect, see Huff v. McCauley, 53 Pa. 206, 91 Am. Dec. 203; Ashley v. Ashley, 4 Gray (Mass.) 197; Jewett v. Hussey, 70 Me. 433; Stearns v. Janes, 12 Allen (Mass.) 582; Lane v. Miller, 27 Ind. 534; Clark v. Glidden, 15 Atl. 358, 60 Vt. 702; Town of Spencer v. Andrew, 47 N. W. 1007, 82 Iowa, 14, 12 L. R. A. 115; Messick v. Midland Ry. Co., 27 N. E. 419, 128 Ind. 81; Campbell v. Ind. & V. R. Co., 11 N. E. 482, 110 Ind. 490. Even though the contract between Thompson and appellee should be construed as a mere license, yet the rule is that an executed parol license cannot be revoked: "A parol license to erect a dam upon another's land, or to convey water from a stream running through the land of another for the purpose of erecting and conducting a flouring mill, is in our opinion irrevocable after the party to whom the license was given has executed it by erecting the mill or otherwise expended his money upon the faith of the license." Lee v. McLeod, 12 Nev. 284. "The principle that expending money or labor in consequence of 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 ment that will be enforced in equity has been frequently announced by the courts. In all such cases, the execution of the parol license supplies the place of a writing and takes the case out of the statute of frauds." Id. "While a parol license to enter upon real estate is generally revocable at the pleasure of the licensor, it is settled that such license cannot be revoked when the licensee, on the faith of the license, with the knowledge of the licensor, has expended his money and labor in carrying out the object of the license. This is on the principle of estoppel." School District v. Lindsay, 47 Mo. App. 136. To the same effect, see Schilling v. Rominger, 4 Colo. 105; Tynon v. Despain, 22 Colo. 240, 43 Pac. 1039; De Graffenried v. Savage, 9 Colo. App. 135, 47 Pac. 902; Rerick v. Kern, 14 Serg. & R. 271, 16 Am. Dec. 497; Sumner v. Stevens, 6 Metc. (Mass.) 338; Arbuckle v. Ward, 29 Vt. 52; Snowden v. Wilas, 19 Ind. 14, 81 Am. Dec. 370; Talbott v. Thorn, 91 Ky. 417, 16 S. W. 88.

In rendering its decree, the court said: "It is further ordered, adjudged. and decreed that the width of said right of way is 171⁄2 feet on each side of the center of the present traveled way over and along the entire course of said private roadway." There is no allegation in the complaint as to the width of the right of way; neither is there

any testimony as to its width. The contention of appellee was that he was entitled to an easement for a roadway, and under the findings of the court and the testimony he is entitled to such easement to the width and extent as heretofore used. In the absence of any proof defining the same, the court may not specify its width.

Appellant contends that the court erred in the admission of testimony as to the price which appellee paid for the land he bought from Moller, and as to his construction of his residence at the end of the road. This testimony was pertinent as tending to show that appellee had placed himself in a position and had expended money which he would not have done but for the making of the grant and the acquiescence therein by appellant.

We have carefully examined the record and the testimony in this case, and have concluded that the findings and decree are abundantly supported by the same, except as to the width of the roadway. The judgment will therefore be affirmed in all matters except that portion of the decree which provides that the right of way should be 35 feet wide. As to that, it will be reversed and remanded, with instructions to modify the decree in accordance with this opinion. Reversed and remanded.

STEELE, C. J., and GODDARD, J., con


(40 Colo. 392)

PECK V. ALEXANDER. (Supreme Court of Colorado. July 1, 1907.) 1. PARTNERSHIP-RIGHTS OF PARTNERS-COM


One partner cannot charge his copartners with any sum for compensation on account of his services in conducting the partnership business, in the absence of an agreement to that effect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, § 131.]


Under the express provisions of Mills' Ann. Code, 212, the findings of a referee on the whole issue stands as the finding of the court, and on filing the same with the clerk judgment is to 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 a new trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Reference, §§ 148-156.]


On appeal it will be presumed, in the absence of a showing to the contrary, that on a motion for a new trial the court examined the testimony and did every other act imposed upon it by law and practice.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3783-3787.]

Appeal from District Court, City and County of Denver; F. T. Johnson, Judge.

Action by Ira F. Peck against J. W. Alexander. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

W. T. Rogers and F. W. Barry, for appellant. John H. Chiles, for appellee.

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 Partnership, 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 such 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 more 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 shall 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 findings are entitled to the same consideration as the verdict of a jury, or the findings of the court based upon like evidence produced in

open court. There having been sufficient evidence to support the findings and judgment, this court is bound by the findings and judgment 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 judgment without an examination of the testimony-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, C. J., and MAXWELL, J., con


(36 Colo. 395)

O'DONNELL v. CHAMBERLIN et al. (Supreme Court of Colorado. March 5, 1906. Rehearing Denied May 7, 1906.)





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 depositing 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 specific performance against the United States Mortgage & Trust Company and the executors of the last will of Winfield Scott Stratton, deceased. A general demurrer to the complaint was sustained, and, as the appellant (plaintiff) stood upon her complaint the action was dismissed, the question therefore before us is: Does the complaint state facts sufficient to constitute a cause of action? The facts so presented, so far as pertinent to the first ground urged why the judgment below, holding that the complaint does not state a cause of action, should stand, are: July 26, 1902, Stratton made the following contract: "I, Winfield S. Stratton * * * in consideration of one dollar to me in hand paid by and for other valuable consideration moving to me from Michael Finnerty,


do hereby give and grant unto said Finnerty, his executors, administrators and assigns, the right and option to purchase rights, benefits and sums of money decreed to the plaintiff *** in that certain cause * The United States Mortgage and Trust Company, Plaintiff, vs. Henry C. Brown et. al., Defendants, * and the two certain notes made by the said Henry C. Brown to said plaintiff, one for $100,000, another for $500,000, secured by the mortgage to said plaintiff described in said decree * for the sum of six hundred and fifty thousand dollars ($650,000), to be paid on or before sixty days from this date, and on payment of said sum promptly within the time aforesaid, time being of the essence thereof, I hereby agree for myself, my executors and administrators, to deliver said two notes with the same amount due thereon as found by said decree and assign



or procure to be assigned the said decree as the said Finnerty, his executors, administrators or assigns, may direct, * * and payment of said sum of six hundred and fifty thousand dollars may at the option of said Finnerty, his executors, administrators or assigns, be made by depositing said sum to my credit in the Denver National Bank of Denver, Colorado." Within the 60 days named in the contract, Stratton died, leaving a will, whereby he named as his executors appellees, Dines, Chamberlin, and Rice. These executors, on account of litigation over the will, did not qualify until after the lapse of the 60 days mentioned in the contract, but did so qualify before the bringing of this action. September 24, 1902, after the death of Stratton, appellant, theretofore the assignee of Finnerty, as a compliance with the contract, tendered at and to said bank "for the use and credit of said Stratton, or his estate, or the executors thereof, or other persons entitled thereto," $654,155.55, and "then and there demanded a delivery of said notes and an assignment of said decree as provided in said contract." But said tender and delivery were refused by said bank for the stated reason that it had not in its possession said

notes, or an assignment of said decree, and could not accept said tender or comply with said demand for that reason." On the same date, September 24th, appellant made known to said executors his desire to comply with the terms of said agreement and secure the assignment and transfer of said decree and notes, and demanded that said executors should make such transfer, and said executors refused to make the transfer, and have since so refused.




1. Appellees contend that the tender of September 24th was not an acceptance of the offer extended by the contract, and therefore a contract to deliver the notes and assign the decree did not arise. The contract provides: "On payment of said sum promptly within the time aforesaid * * * I hereby agree to deliver said two notes * and assign *** the said de* as said Finnerty may direct, and payment of said sum may at the option of said Finnerty * be made by depositing said sum to my credit. **" This, in terms, was a promise to deliver and assign when payment should be made, and a stipulation that payment might be made at the option of Finnerty, or his assignees, by making the deposit in the manner recited in the contract. The offer to make the deposit appellees say did not amount to a tender, and was not equivalent to a payment for the purpose of saving rights under the contract, because there was coupled with it a demand for contemporaneous delivery of the notes and an assignment of the decree. If the offer made to the bank September 24th operated as a payment for the purpose of avoiding the loss of rights under the contract, then appellant accepted the offer made by the contract within the time limited thereby; that is, he satisfied the condition upon the performance of which Stratton had promised to deliver and assign. The contract was to deliver the notes and assign the decree upon payment. When payment was tendered, mutual dependent covenants arose, on the one part to deliver and assign, on the other to pay. "The general rule is to consider all covenants dependent, in the absence of a contrary intention, for this is the way most men make their bargains, neither party intending to perform unless the other at the same time performs on his part, and the same is held when no time is fixed for the performance by either." 9 Am. & Eng. Ency. of Law, 639. "A covenant or obligation to pay and therewith pass title is mutual and dependent; the one cannot be required before the other is ready to be performed." Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220; 2 Minor's Inst. 779. "In case of dependent covenants to be performed contemporaneously, neither party is required to perform until the other does. An offer to perform upon condition of performance by the other party is sufficient." 6 Am. & Eng. Ency. of Law (2d Ed.) 33. "Tender is not invalid because

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