26 Colo. App. 339 | Colo. Ct. App. | 1914
delivered the opinion of the court.
For convenience, the parties hereto' will be called plaintiff and defendant, as in the trial court. Jesse Stephenson, defendant in error, was plaintiff, and Melinda J. Workman defendant. Mrs. Workman was the widow of Travis D. Workman, and she and her two minor children, as heirs of
Upon -conflicting evidence, the court made a finding that there was an oral agreement between plaintiff and Mrs. Workman, whereby he was to have a driveway along the south side of the land herein described, “and that subsequent to the granting of said oral license, the said right of way was paid for by the plaintiff, and that the said right of way re
Under the condition of the pleadings and evidence, the judgment should have been for the defendant. (1) If the interest claimed by plaintiff in the land of the defendant and her' children is to- be regarded as an easement, it is an interest in real estate claimed to- have been created by express agree
There is another matter which we think worthy of consideration: the decree sought to limit its effect to the defendant only, by reciting that the inj unction should not be construed to affect the rights of the minor children, who were owners of an undivided half interest in the land; but it is evident that if the mother of the minors be compelled to remove the fences, the interests of the minors will be subjected to the easement, unless they shall institute some proceeding
The judgment is reversed and cause remanded, with instructions to dismiss the action at the costs of the plaintiff.
Reversed and remanded.