Greeley, S.L. & P. Ry. Co. v. Yount

• Decision Date: 09 December 1895
• Citation: 42 P. 1023,7 Colo.App. 189
• Parties: GREELEY, S.L. & P. RY. CO. v. YOUNT.
• Court: Colorado Court of Appeals

42 P. 1023

7 Colo.App. 189

GREELEY, S.L. & P. RY. CO. v. YOUNT.

Court of Appeals of Colorado

December 9, 1895

Error to district court, Boulder county.

Action by Ella B. Yount against the Greeley, Salt Lake & Pacific Railway Company for damages for the unauthorized appropriation of land. Judgment for plaintiff, and defendant brings error. Reversed.

Teller Orahood & Morgan, for plaintiff in error.

Chas M. Campbell, for defendant in error.

THOMSON, J.

This action was brought to recover damages against the defendant company for its unauthorized appropriation and occupancy of the plaintiff's land for the purposes of its railroad. Plaintiff had judgment for $916, from which the defendant prosecutes error to this court. Aside from several specific denials in the answer, the defenses were that the cause of action did not accrue within six years before the suit was commenced, and that the defendant had been in the quiet and undisputed possession of the land, under claim and color of title, made in good faith, for more than five successive years next preceding the time of the commencement of the action, and during that period had paid all taxes assessed against it. There was evidence that the defendant took possession of the land in 1882, and this suit was brought in 1887. The six-year limit of the statute had therefore not expired. The defense of five years' possession and payment of taxes under color of title was not sustained. There was no proof or pretense of color of title upon the trial, and there was no evidence of payment of taxes upon the land taken. The only reference to the subject of taxes in the way of evidence was the following stipulation: "That the right of way for the defendant to go through the streets of Boulder was granted by the city of Boulder on the 11th day of July, 1881, and that said right of way has been regularly assessed and the taxes paid by the defendant each year since the road was constructed in 1881." The extent of this admission is that taxes upon the right of way through the streets of Boulder were assessed and paid. The land in question was not in or near Boulder and the admission does not affect it. There are 48 assignments of error, mostly directed to the admission of testimony, and the giving and refusing of instructions.

We find nothing in the court's rulings upon objections to testimony which would warrant us in reversing the judgment.

The defendant requested instructions that the action was barred by the statute of limitations, and that the plaintiff was not entitled to recover. We think counsel will agree with us that these were properly refused. The defendant also asked an instruction that the measure of damages was the actual cash or market value of the property taken at the time it entered thereon. This is correct as far as it goes, but it was contained in the instructions given, which also authorized the jury to find the damages, if any, to the remainder of the tract, resulting from its occupation of this. The court declared the law correctly, and the refusal complained of was not error. Another instruction requested and refused was that the preponderance of evidence in a case does not depend wholly upon the number of witnesses testifying to a particular fact or state of facts; but that, in determining upon which side the preponderance is, the opportunities of the witnesses for forming acquaintance with the facts concerning which they testify, their demeanor while testifying, their interest or lack of interest in the result and the probability or improbability of their statements, in the light of all the other evidence, and of the attending facts and circumstances, should be taken into consideration. The doctrine of this proposed instruction is sound, and no valid objection to its allowance occurs to us. But we were never very strongly impressed with the importance of an instruction of that nature. It is based upon a theory in consonance with which men ordinarily reach their conclusions and regulate their actions in the affairs of life, without suggestion from others. A rule of that kind is applicable in matters of private business as well as in lawsuits. The common experience of men makes its utility apparent, and we think that, in a...