Morton v. Laesch

• Decision Date: 01 April 1912
• Citation: 125 P. 498,52 Colo. 541
• Parties: MORTON v. LAESCH.
• Court: Colorado Supreme Court

125 P. 498

52 Colo. 541

MORTON v. LAESCH.

Supreme Court of Colorado

April 1, 1912

Rehearing Denied July 1, 1912.

Appeal from District Court, Clear Creek County; Flor Ashbaugh Judge.

Action by Margaret Laesch against Jay Morton. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 38 Colo. 171, 87 P. 1081, 120 Am.St.Rep. 106.

A. D Bullis and F. L. Collom, both of Idaho Springs, for appellant.

Morrison & De Soto and Morrison & Bailey, all of Denver, for appellee.

GABBERT J.

The parties to this appeal are joint owners (each an undivided one-half) of the Elida lode mining claim. Mrs. Laesch is the owner of, or interested in, adjoining claims. Mr. Morton owns a group in the vicinity of the Elida, known as the Jo Reynolds. At the time he became interested in the Elida, a tunnel had been run on that claim a distance of about 324 feet. He desired to work the Jo Reynolds group through the Elida, and claims to have made a parol agreement with Mrs Laesch to the effect that he would repair the old workings, which were then caved in, more or less, improve the grade, and extend the tunnel to the end line of the Elida, lay a track therein at his own expense, and through this tunnel and the extension thereof to the Jo Reynolds work the latter. In consideration of the use of the Elida ground for this purpose, Mrs. Laesch should have the right to utilize the tunnel in the Elida ground to work that property, or those adjoining, in which she was interested, without expense to her. Morton put the old workings in the Elida in good shape at an expense of over $800, and extended the tunnel through the Elida ground a further distance of 1,076 feet, and laid a track throughout the entire length of the tunnel at his own expense, in the sum of $10,000. He also extended the tunnel to the Reynolds group, and worked the property through this tunnel and the one through the Elida. All material removed from the Reynolds group was moved at his own expense. Mrs. Laesch, for the period of between two and three months, worked the adjoining properties in which she was interested through the old workings in the Elida which Morton had repaired, using the track which he had placed therein. For this use of the tunnel she paid nothing, nor did she promise to pay anything. After the work on the Jo Reynolds had progressed for a considerable period, she demanded that Morton pay her for the use of the tunnel through the Elida. This he refused to do, and she then brought suit for an accounting, the purpose of which was to compel Morton to pay her a reasonable compensation for the use of the tunnel in working the Reynolds group through the Elida ground.

The trial of the case the first time resulted in a judgment in favor of the defendant, based upon the ground that the parol agreement pleaded as a defense, as above stated, was established. Plaintiff brought the case to this court for review, where, in 38 Colo. 171, 87 P. 1081, 120 Am.St.Rep. 106, we held that an oral agreement for a perpetual right of way over the premises of another constitutes an easement or interest in land, and is within the statute of frauds, and, to take it out of the statute, it must be supported by clear, definite, and conclusive proof, and, as the evidence did not establish this degree of proof, the judgment was reversed and the cause remanded for a new trial. We also held, on the authority of People ex rel. v. District Court, 27 Colo. 465, 62 P. 206, that an owner of an undivided interest in a mining claim has no right to use the tunnel on such claim to convey ore from an outside claim. A retrial of the cause resulted in a judgment in favor of plaintiff in the sum of $5,840, from which the defendant has appealed.

Three propositions are advanced by counsel for appellant in support of their contention that the judgment of the trial court should be reversed: (1) That the evidence establishes the parol agreement pleaded; (2) that, under the facts of the case, the plaintiff is estopped from making any claim for compensation; and (3) that the evidence is insufficient to support the judgment rendered.

Counsel for appellee have filed a motion to strike the bill of exceptions, based upon the ground that it was never filed in the district court; that it does not appear to be the original bill or copy thereof; and that it is not certified by the clerk of the court from which the appeal is taken. We shall consider this motion first, for the reason that, if it should be sustained, the grounds upon which the appellant relies for reversal of the judgment are not before us for consideration.

The case was docketed in this court and the bill of exceptions filed April 14, 1908. July 23d following, counsel for appellant filed their abstract of record, and on August 22, 1908, their opening brief. To this brief counsel for appellee filed their brief October 26, 1908, and appellant's reply brief was filed November 21st following. The motion to strike the bill of exceptions was not filed in this court until August 18, 1911. A motion to quash or strike out a bill of exceptions must be seasonably made, or it will not be considered. 3 Cyc. 52. In the case at bar, the motion under consideration was not interposed until two years and nine months after the case was at issue. In such circumstances, the motion was not seasonably made, and for this reason will be overruled. City of Central v. Wilcoxen, 3 Colo. 566; Learned v. Tritch, 6 Colo. 579; Reynolds v. Campling, 21 Colo. 86, 39 P. 1092; Ritchey v. People, 23 Colo. 314, 47 P. 272, 384; Mackey v. Monahan, 13 Colo.App. 144, 56 P. 680; Board County Com'rs v. Tulley, 17 Colo.App. 113, 67 P. 346; Merriner v. Jeppson, 19 Colo.App. 218, 74 P. 341; Greig v. Clement, 20 Colo. 167, 37 P. 960; Murphy v. Cunningham, 1 Colo. 467.

As far as advised, the testimony at the second trial on the subject of the parol agreement, upon which defendant relies, is no different nor any more clear, definite, and conclusive, than it was at the first trial, and we must therefore hold that the finding of the trial court on this subject cannot be disturbed.

Aside from this, the trial court resolved the issue in favor of the plaintiff on conflicting evidence, and for this reason that finding must stand.

In the former opinion it does not appear that the question of estoppel was directly considered, or that it was involved, as our decision at that time appears to have been based upon the two propositions we have mentioned. Plaintiff was not estopped from asserting that an easement was not granted by parol, although it might be that she would be estopped from maintaining an action to enjoin the defendant from using the tunnel through the Elida for the purpose of working the...