38 Colo. 171 | Colo. | 1906
delivered the opinion of the court:
The law applicable to this case is well settled, and the only question for our consideration is, whether the évidence of the defendant, when given its full weight and purport, is sufficient to sustain the judgment. The perpetual right of way, which the defendant claims he acquired from plaintiff, constitutes an easement or interest in land. The oral agreement upon which he relies is within the statute of frauds, and under the well settled rule, in order to take such agreement .out of the statute of frauds, it is incumbent upon him to support the same by clear, definite and conclusive proof. — Fetta v. Vandevier, 3 Colo. App. 419, affirmed in: Vandevier v. Fetta, 20 Colo. 368; Whitsett v. Kershow, 4 Colo. 419.
The evidence on the part of the defendant does not, in our opinion, meet the requirements of this rule. It consists of a conversation testified to by the representative and agent of defendant. This conversation is, in itself, general and indefinite as to the terms of the agreement, and is positively denied by
It must be assumed that the court below, by rendering judgment for defendant, found the issue as to the agreement in his favor, and while-, under the doctrine frequently announced in this court, we are precluded from disturbing such finding unless clearly against the weight of the testimony, we feel compelled to reverse the judgment, not alone because of the conflict in the testimony, but because of the lack of the character and degree of proof required in such cases.
Judgment reversed, and cause remanded.
Reversed.
Chief Justice G-abbert and Mr. Justice. Bailey concur.