| Colo. | Apr 15, 1892
delivered the opinion of the court.
This action was brought by appellee against the city of Denver for an alleged trespass committed in tearing down a fence built by her upon a certain strip of land of which she claims ownership. The city justifies the trespass upon the ground that the strip of land in question had been dedicated by E. P. Jacobson, appellee’s husband, in his lifetime, as a street, such dedication being duly accepted by the municipal authorities, and that the fence was an unlawful obstruction thereto.
At the trial, the city gave in evidence certain declarations made by appellee’s husband in connection with proof of acts upon which it relied to establish a dedication of the land for street purposes. Appellee offered in rebuttal proofs of other statements made by E. P. Jacobson in the same connection tending to negative the alleged intent to dedicate. The latter statements were rejected by the court. A verdict being returned in favor of the city, a new trial was allowed, mainly on the ground that the rejection of E. P. Jacobson’s declara, tions thus offered was error. The case is before us upon appeal under the act of 1885 (no longer in force) from the order granting the new trial.
. The principal question presented for consideration is, therefore, whether the declarations made by E. P. Jacobson in connection with acts proven to establish dedication, tending
The city offered in evidence various acts of E. P. Jacobson in connection with the strip in question and adjacent property, tending to show a purpose on his part to establish a street or highway. It also introduced a number of declarations made by him when performing those acts somewhat explanatory thereof and favorable to its contention. Additional statements of a contrary import made by him in connection with the same or similar acts should have been received. The rejection of appellee’s offer in this behalf was error.
But it is claimed by counsel for appellant that the admission of the statements in question could not have changed the result; because, they say, the evidence offered and received, exclusive of declarations by E. P. Jacobson, conclusively establishes a common law dedication by way of estoppel
The evidence supporting a dedication in the case at bar is strong. But counsel for the city deemed it necessary, as we have seen, to supplement their other proofs with testimony of the owner’s declarations; they thus attested the value of similar counter-proofs on the part of appellee. And since the district court regarded the rejected testimony of sufficient importance to warrant a new trial, we are not prepared to interfere. Nisi prius courts of necessity possess some discretionary power in the granting of motions like the one, before’ us. Cook v. Doud, 14 Colo. 483" court="Colo." date_filed="1890-04-15" href="https://app.midpage.ai/document/cook-v-doud-6561951?utm_source=webapp" opinion_id="6561951">14 Colo. 483. While appellate tribunals have before them all the evidence, trial judges have the additional advantage of having seen and heard the witnesses and are in better position to determine how much or how little influence such errors as the one under consideration may have had upon the particular verdict challenged. When it does not appear that the discretion of the court has been arbitrarily or illegally exercised, reviewing tribunals interfere with great reluctance to reverse orders allowing new trials. Cook v. Doud, supra.
We cannot say that the order under consideration was error. The judgment is accordingly
Affirmed.