Rockwell v. Graham , 9 Colo. 36 ( 1885 )

Elbert, J.

The court did not err in instructing the jury to find for the defendant. The evidence does not show title in the plaintiff to either the mill-site or the land for the mill-race. The evidence does show title in the plaintiff to a “right of way for a flume to conduct water along the creek to what is known as the ‘ Railey Mill.’ ” This is the language of the reservation made in Railey’s deed by Dean, his attorney in fact, to Montague, the grantor of the defendant, and (within the boundaries of the premises in dispute) this is all that passed by Robert Railey’s subsequent deed to Becker, the grantor of the plaintiff.

This is an easement. It is not what is declared on; evidence of it does not support the issue; nor is such a right ground for an adverse claim, being fully protected by the provisions of the federal laws. Rev. Stat. §§ 2339, 2340.

The refusal of the court to allow proof of a pre-emption by Becker is assigned as error. On the trial of the cause, ‘1 it was stipulated and agreed in open court, by the respective parties, that the plaintiff and defendant claim title from Tarleton Railey and Mary Railey, and that they were the common grantors to plaintiff and defendant. The nature of Becker’s pre-emption, the law under which, and the purpose for whioh, it was made, does not appear. Presumably the offer was made for the purpose of showing title by pre-emption. If so, it was not admissible as being in contravention of the stipulation above stated.

As to the third assignment, it is sufficient to say that the description of the premises contained in a deed from Dougherty to Montague is referred to by Dougherty in his testimony, apparently for the purpose of identifying the premises conveyed by Dean, attorney in fact, with the premises conveyed to Montague, and by Montague to the defendant; the premises having been described in the two last-named deeds in different terms. Possibly the deed itself was introduced in evidence for the same purpose, but this does not clearly appear. We do not see in this any ground for reversal.

These are all the assignments of error it is necessary to notice. The judgment of the court below is affirmed.

Affirmed.