32 Colo. 77 | Colo. | 1904
delivered the opinion of the court.
The plaintiff, claiming to be the owner of a certain pipe line, together with the head-gate of said pipe line, on the Animas river, and the right to -use water from the Animas river by and through the said pipe line, and claiming to be in the possession thereof, brought suit in the district court of San Juan county, where the property is situated, to quiet his title thereto, alleging that the defendants claimed some right or title therein. The defendants answered and denied that the plaintiff was the owner of said water right and pipe line, or that he was in the lawful possession thereof, and in a cross-complaint alleged that the plaintiff had unlawfully taken possession of said pipe line in the temporary absence of the defendant, that the said pipe line was the property of the defendant, John W. Nesmith, that the pipe line had been con
The trial was to the court, without a jury, and resulted in judgment in favor of the plaintiff, and the plaintiff was decreed to be the owner of the water right and the pipe line mentioned in the pleadings. From the judgment the defendant appealed to this court.
From the testimony of the plaintiff it appears that he and J. W. Nesmith entered into a verbal agreement on the 2nd of September, 1899, and the court permitted the plaintiff to introduce in evidence a memorandum of the agreement made, as die alleges, at the time the agreement was entered into; the memorandum being as follows:
“Grand Hotel,
Silverton, Colorado, Sept. 2, 18 — .
“Preliminary agreement between John W. Nesmith and S. G. Martin. Nesmith agrees to buy Tom Moore group of mines lease and bond. $4,000 cash; $10,000 in twelve months; $10,000 in two years;*80 $200 -paid to- bind' bargain. Agrees' also to protect water right and return same to Martin i-f contract on mines is not complied with or forfeited.
'S. Gk Mahtih.”
We shall not consider the objection made to the introduction of this memorandum, because the decision will be based .upon other grounds. According to the.undisputed testimony, the'plaintiff had a lease and bond on certain mining claims, and had located several other claims in the vicinity of the property upon which he had a lease and .bond, and the defendant, J. W. Nesmith, desiring to become interested in the property, took an option to purchase the same from the plaintiff, paying therefor at the time of entering into the agreement to take the option, the sum of two hundred dollars. It was mutually agreed between the parties that a written agreement would be prepared later to be signed by the parties. According to the plaintiff’s testimony, he had located a claim for five hundred, miner’s inches of water for power and domestic purposes during the preceding month of August, 1899; and at the time Nesmith and he entered • into the agreement for an option upon the mining property, the plaintiff located at another point on the Animas river, several thousand feet from the first location, another claim for five hundred miner’s inches. of water for the purpose of supplying water for power and domestic purposes to the Tom Moore group of mines. When Nesmith, on the 2nd of September, was making a preliminary inspection of the property, it was decided to change this second place of location of the head-gate to a point on the river several thousand feet distant, and farther from the first head-gate location. The plaintiff testified that he prepared his location certificate and wrote it upon a board, which he described, and placed it upon
The plaintiff claims that although Nesmith refused to give any writing, that he agreed before the execution of the written contract to protect the water right and do whatever work was necessary to hold it. It is shown by the testimony that the defendant Nesmith did not purchase the property under the option; that he expended twelve or thirteen thousand dollars in the development of the property, and in addition thereto spent the sum of about thirteen thousand dollars in the building of the pipe line. At the time it is. alleged that Nesmith agreed to protect the water right and turn it over to the plaintiff, the plaintiff had only an inchoate right to the use of five hundred inches of water from the Animas river. Nesmith and the surveyor who . accompanied him at the time when the
We are of opinion that the facts stated by the plaintiff do not entitle him to recover and that any preliminary agreement entered into between Martin and Nesmith must be presumed to have been included in the written agreement executed on the 22d of September. It is a familiar rule that extrinsic evidence is not admissible either to contradict, add to, subtract from, or vary the terms of a written contract. The rule applies with greater force to all instruments required by the statute of frauds to be in writing.
“All oral negotiations or stipulations between the parties which preceded or accompanied the execution of the instrument are to be regarded as merged in it, and the. latter is to be treated as the exclusive medium of ascertaining the agreement to which the contractors bound themselves.” — Randolph v. Helps, 9 Colo. 29.
Moreover, it was a contract which, under the statute of frauds should be in writing, and while, under some circumstancés, parties by their conduct are estopped to set up the statute of frauds, no such case is presented by the record here. It is stated in the case of Whitsett v. Kershow, 4 Colo. 423, that to establish a trust by parol evidence alone in order to take the case out of the statute of frauds, the contract must
The plaintiff insists that the pipe line should be regarded as improvements made under the option, and that it became his property because not removed within the time specified by the written contract. The plaintiff placed an entirely different construction upon the contract. He insisted that the alleged verbal agreement concerning the water right and pipe line should be incorporated in the written contract. He says that Nesmith denied there was such an agreement and refused to mention the pipe line in the instrument. According to plaintiff’s testimony, Nesmith told him that he was building the pipe line for his own benefit, and that if the property was not purchased under the option, it would be sold to the highest bidder; that he afterwards signed the written contract, which contains no mention of the water right or pipe line, and that after he signed the contract he asked Nesmith for an option and that Nesmith again told him that he would sell to the highest bidder. A considerable portion of the pipe line is constructed through property held' by the plaintiff under locations made about the time the agreement was entered into, the defendant understanding that the locations were to be made. Under these circumstances, we do not think the plaintiff should be heard to say that the pipe line became his property after the expiration of the time mentioned in the contract.
For these reasons, therefore, we must reverse the judgment.
Reversed.