Colorado M. Ry. Co. v. Bowles

• Citation: 14 Colo. 85,23 P. 467
• Parties: COLORADO M. RY. CO. v. BOWLES.
• Decision Date: 31 January 1890
• Court: Supreme Court of Colorado

23 P. 467

14 Colo. 85

COLORADO M. RY. CO. v. BOWLES.

Supreme Court of Colorado

January 31, 1890

Appeal from district court, Pitkin county.

Syllabus by the Court

1. When the entry of a pre-emption claimant has been suspended, and proceedings to condemn a right of way through the land for a railroad have been instituted, the claim of the railway company for a continuance of the latter proceedings pending the determination of the suspended entry by the department of the general land-office appeals strongly to the discretion of the court.

2. When a party, in the midst of a trial, is taken unawares, and without fault of his own, is placed in a situation greatly injurious to his interests, as by the unexpected admission of evidence upon an issue which, by reason of an order of court made previous to the commencement of the trial, he was not prepared to meet, a case of surprise is presented which, if not otherwise remedied, may be made a ground of motion for a new trial.

H. T. Rogers, A. E. Pattison, and Wilson & Stimson, for appellant.

ELLIOTT J.

The Colorado Midland Railway Company, appellant, was the petitioner below in proceedings to condemn certain land as a right of way for the construction of its railroad. Appellee Bowles, defendant below, had entered the land under the pre-emption laws of the United States, had paid the government price therefor, and had received from the United States land-office the certificate of purchase in the usual form. It was alleged in the original petition, presented August 9, 1886, that Bowles claimed and appeared to be the owner of the land. On February 15, 1887, an amended petition was filed in which it was alleged, inter alia, that the pre-emption entry of Bowles has been and now is suspended and held for cancellation by order of the honorable commissioner of the general land-office of the United States and that petitioner has in all respects complied with the act of congress, approved March 3, 1875, granting to railroads the right of way through the public lands of the United States. The cause being reached for trial, petitioner moved for a continuance on affidavits showing that the entry of Bowles had been suspended on account of fraud and perjury committed by him in securing the certificate of purchase from the land-office. The court first held the grounds of the motion sufficient, but finally overruled the same on terms limiting defendant in respect to the admission of evidence, and the measure of damages. On the trial, the defendant was permitted to introduce evidence tending to show the validity of his entry, also to show the value of the land actually taken, and damages to the residue. Petitioner's counsel objected to this testimony on the ground that defendant's pre-emption entry was suspended, and claimed surprise because the court, in denying the motion for continuance, had ruled that 'defendant would be confined to proof of damages to his actual possession only; that is, damages to his surface improvements.' Afterwards, during the trial, the court defined its rulings to be that 'the certificate of entry or the receiver's receipt should not be offered as conclusive evidence of the entry.' And so, against the objection of petitioner, the case was tried, and submitted to the jury, upon the theory that defendant might recover full compensation and damages for the land taken and damaged upon showing compliance with the pre-emption laws of the United States, as in case of making final proof before the United States land-office; petitioner being allowed to controvert the validity of defendant's entry; the jury to determine the controversy. The jury found the value of the land taken to be $411.79, and the damages to the residue to be $721.66. It is evident from this verdict that the jury sustained defendant's title to the land as though there had been no suspension of his entry, and allowed him full compensation and damages therefor. Petiti...