to a point on the lands now claimed by defendant. It seems to us that, in the last finding, the two southernmost branches only were referred to, although the words, "the waters of Snow creek," were used; because plaintiff did not claim to have diverted, at any time, the waters of any of the other branches, and defendant "commenced using the waters of the two southernmost branches on lands now claimed by him in 1876." * * * Until 1876 defendant's use of the waters of the two southernmost branches was upon lands occupied by him as tenant of plaintiff. But, say counsel for appellant: "This fact does not imply that defendant was tenant of plaintiff's water light also. A man may rent another's land and trespass upon his water right, or vice versa." But let us consider the fact of defendant's tenancy in connection with others. It is admitted by the pleadings that the two southernmost branches of Snow creek flow naturally through and over plaintiff's land, and the jury found that the two other branches pass over defendant's land, described in the answer, in two natural channels. Defendant rented plaintiff's land in 1873, but it is not found that he used any of the waters of Snow creek for its irrigation in 1873, and in 1874 plaintiff, by means of dams and ditches, appropriated the waters of the two southernmost branches running through his land. Now, to say the least, it would have been an anomalous proceeding on the part of plaintiff to lease land to defendant that was valuable with irrigation, but practically valueless without it, and allow him to continue an adverse use of water diverted from the natural channels by plaintiff, for the sole purpose of irrigating the leased lands. There is no finding that plaintiff appropriated all the waters of the two southernmost branches in 1874, but the answer substantially admits it. The complaint contains an averment of such appropriation and use by means of dams and ditches, and defendant only denies that plaintiff constructed dams and ditches whereby he diverted all the waters from the two southernmost channels, or that it was necessary to use all the waters of said channels, or that defendant had diverted or used all the waters of said channels, thus admitting plaintiff's appropriation and necessary use and his own diversion, except as to the smallest quantity flowing in said channels or branches. After making the admission just stated, defendant then alleges that in 1871, by means of dams and ditches leading from the channels of Snow creek, he diverted therefrom all the waters thereof when necessary to irrigate his said land, and that he diverted said waters for the purposes of irrigation every year thereafter. He does not allege that, at any time prior to plaintiff's admitted appropriation and use, he appropriated any of the waters of the two southernmost branches, which were the only ones in dispute on the question of prior appropriation and use, but contents himself with the allegation that he diverted all the waters of Snow creek when necessary to irrigate his own land, without alleging that all of said waters were necessary, or that he used any portion thereof, except upon his own land described in the answer. In fact, he limits all adverse use since 1871 to his own lands; that is to say, in his answer, his claim of right and title by prescription rests upon a use of the waters of Snow creek, -not of the two southernmost branches thereof,-upon his own lands described in the answer,-not plaintiff's. But the jury found that he did not commence using the waters of the two southernmost branches on his own lands until 1876, and that his prior use was upon plaintiff's land, undoubtedly as plaintiff's tenant. Again, as to Niagara creek, it appears in both complaint and answer that defendant diverted only a portion of its waters. He claimed only so much thereof as ran through the "Mahan Ditch," which was but a part of the creek. But, in many instances, the form of questions put to the jury is the same as that of those under consideration in relation to defendant's adverse use of the waters of Snow creek. For instance, at folio 72 is this question: "When did Mahan commence running the waters of Niagara creek through the ditch above Jerrett's lands? Answer. Between April 25, 1876, and May 1, 1876." Now the jury did not intend to say that all the waters of that creek ran through defendant's ditch, nor did the court mean to submit such a question to them, because that was not claimed by either party, and was not the fact. And at folio 94 it is asked: "Upon what quantity of land did the defendant use the waters of Niagara creek in 1872, if any? Answer. About one acre." It would hardly be claimed that the jury intended to find that all the waters of that creek were used in one acre; because, as to that stream, it is alleged in the answer that “at all seasons of the year it affords a supply of water far beyond the necessities of the plaintiff for the proper irrigation of the lands described in the complaint, and that all of said waters cannot be used profitably or reasonably in the irrigation of said lands." The court did not err in excluding the two southernmost branches of Snow creek from the findings under consideration; and there is no finding that defendant used any of the waters of said branches continuously, openly, notoriously, under claim of right, and adversely to plaintiff, for the period of five years before the commencement of this action. The plaintiff was entitled to his costs. Judgment affirmed. (5 Utah, 428) BURLOCK et al. v. SHUPE et al. 1. NEW TRIAL-NOTICE OF DECISION-WAIVER. Where, after a decision rendered by the court, the party against whom decision is made applies for time in which to file a motion and statement for new trial, such application is not a waiver of the notice of decision required to be given under the provisions of Laws Utah, 1884, § 536, relating to new trials. 2. SAME DILIGENCE IN PROSECUTING MOTION-REVIEW ON APPEAL. The question of lack of diligence in prosecuting a motion for new trial is wholly within the discretion of the trial court, and will not be reviewed on appeal. 3. FRAUD--PLEADING AND PROOF. In an action for the recovery of land defendant filed a cross-complaint alleging that as administratrix she had negotiated a sale of the land, but, the purchaser having become insolvent before the sale was confirmed, she had declined to give a deed; that plaintiff had levied upon the purchaser's interest in the land, and by false and fraudulent representations to the probate court had induced the court to confirm the sale to plaintiff. Held, that fraud was alleged sufficiently to warrant the admission of testimony showing the character of the transaction. Appeal from district court, First district; before Justice HENDERSON. On motion for new trial. This action was brought by William E. Burlock and others against Elizabeth Shupe and others, to recover certain lands. Judgment was rendered for plaintiffs, whereupon defendant moved for new trial, which was granted, and plaintiffs appeal. J. N. Kimball and A. R. Heywood, for appellants. Thos. Maloney, for respondents. BOREMAN, J. The plaintiffs (appellants) brought their action against the defendants for the possession of certain real estate, claiming ownership. The defendants filed their answer, cross-complaint, and amended cross-complaint, claiming to hold the property as the sole heirs of Brigham Shupe, deceased. Upon the case being heard, judgment was rendered for the plaintiffs. Thereafter the defendants made their motion for a new trial, which motion the plaintiffs moved the court to dismiss. The motion to dismiss was overruled, and the motion for a new trial was granted, and thereupon the plaintiffs appealed to this court from such orders. The plaintiffs maintain that the court below had no authority to consider the defendants' motion for a new trial, alleging that it was not filed in time, and no notice or statement was filed in time. The statute says that "the party intending to move for a new trial, must, within ten days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk, and serve upon the adverse papty, a notice of his intention, designating," etc. Laws Utah 1884, p. 246, § 536. The case was tried by the court without a jury, and the findings and decision and judgment were made and filed on the same day, the 25th of February, 1886. No notice of the decision was given to the defendants, as contemplated by the section of the statute referred to, but the defendants' attorney, on the same day that the decision was rendered, wrote a note to the judge who tried the case, asking a stay of proceedings for 30 days, to prepare and file the motion and statement for a new trial, and the extension of time was granted. On the 26th of March, 1886, another order, dated 24th of March, 1886, was filed, giving 20 additional days from the date of the order within which to prepare, file, and serve notices, motions, and statements for a new trial and appeal. The plaintiffs contend that these applications and orders for the stay of proceedings were a waiver of the notice of the decision, which the statute requires to be given. We have no doubt that the giving of the notice of intention to move for a new trial was a waiver of the notice of the decision, under the authorities referred to by the plaintiffs, (Cottle v. Leach, 43 Cal. 322; Thorn v. Finn, 10 Pac. Rep. 414;) and for some purposes the law does no doubt consider mere knowledge as equivalent to notice; but this does not hold good in all cases. It does not seem that the provision of the statute that the time to give the notice of the intention begins to run from the time of the notice of the decision, and that notices must be in writing, could be held to mean that mere knowledge is notice. Where the party has knowledge, and acts in the manner pointed out in the statute as to follow the notice, there would be good reason to treat his action as a waiver of the notice, or as equivalent to the notice. But we are not prepared to say that anything short of doing something which the statute points out as to follow or be preceded by the notice, would be or could be treated as a waiver of the notice. The party must do some affirmative act pointed out in the statute as not necessary to be done until after the notice. The statute says that the notice of intention to move for a new trial need not be made until after notice of the decision, but if the party proceeds to give his notice of intention without waiting for the notice of the decision, the inference would be that he had waived the notice of decision. The asking of a stay of proceedings to prepare the notice of intention, etc., would seem not to be a waiver of the statutory right to have a written notice before he should file or serve the notice of intention. This is the view taken by the supreme court of California, of a like statute, and it seems to be the most reasonable rule to reconcile the conflicting views. Biagi v. Howes, 66 Cal. 469, 6 Pac. Rep. 100; Carpenter v. Hewel, 67 Cal. 589, 8 Pac. Rep. 314; People v. Carter, 64 Cal. 561, 5 Pac. Rep. 260. The plaintiffs (appellants) further contend that the defendants' motion for a new trial should have been dismissed, because it was not prosecuted with diligence. There was a long delay in the disposition of the motion for a new trial, but no injury appears to have resulted. The plaintiffs had not, prior to action by the defendants, made any move to dismiss. Plaintiffs' action was taken subsequent to action by the defendants. The well-known burdened condition of the docket of the court may have had something to do with the delay in the hearing of the motion; but whether this be so or not, the question of the want of diligence is one resting in the sound discretion of the court which passed upon the motion. Boggs v. Clark, 37 Cal. 236. In the absence of anything showing that the court did not exercise a sound discretion, this court will not disturb the action of the court below, so far as it concerns the question of diligence. It was claimed by the defendants in their application for a new trial that the court, on the trial of the case, had rejected evidence tending to show fraud as set up in the cross-complaint. The appellants contend that such rejections were not grounds for granting a new trial, but were correct rulings; that the cross-complaint made no statement of facts that would constitute fraud. The cross-complaint, as amended, alleges in substance that the property belongs to the defendants as the sole heirs of Brigham Shupe, deceased,-one defendant being the wife, and the other the child, of said Brigham Shupe, deceased; that the defendant Elizabeth Shupe, as administratrix, obtained an order for the sale of the real estate in question, and at the sale S. H. Higginbotham became the purchaser at $950 cash, subject to approval by the probate court; that the probate court delayed confirming the sale; that in the mean time Higginbotham became insolvent, and notified the administratrix and the probate court that he could not pay for the land, and that he repudiated the sale; that after this time the plaintiffs sued and obtained judgment against Higginbotham, and sold on execution such interest as Higginbotham had in the property; that he falsely and fraudulently represented to the probate court that Higginbotham had an equitable interest which they had bought at the sheriff's sale, and were entitled to have the sale made by the administratrix to Higginbotham confirmed to them; that they intended to mislead the probate court by such false and fraudulent representations; that Higginbotham never paid said $950, or any part of it; that said plaintiffs never paid said sum or any part of it; that plaintiffs well knew that said Higginbotham had never paid any part of said money, and the probate court likewise knew these facts; that the probate court, at the solicitation of the plaintiffs, with these facts before it and before them, made a pretended order confirming said sale to the plaintiffs, in fraud of the rights of the heirs; that because the administratrix refused to make the deed to the plaintiffs without having received any pay therefor, she was removed from her position as administratrix, and another person appointed thereto, who did make the deed. These facts, if proven, would have shown a most bald fraud. They would have shown that the plaintiffs were endeavoring, through the forms of law, but without a shadow of right, moral or legal, to appropriate the property of others without having paid for it, and knowing that the party through whom they were claiming it had never paid for it. In passing upon the matters, the probate court had to decide that Higginbotham had such an interest in the real estate as was subject to levy and sale under execution, when that was a question for a court of more extended jurisdiction, and not one for the probate court,-a court of but limited jurisdiction. The rejection of the proofs offered by the defendants, of the facts, was therefore error. The evidence should have been admitted. The motion for a new trial was properly granted. We see no error in the action of the court below in granting the motion. The order granting it is therefore affirmed. ZANE, C. J., concurring. HENDERSON, J., concurs. (11 Colo. 15) ADAMS v. SCHIFFER et al. (Supreme Court of Colorado. January 27, 1888.) 1. EQUITY-RESCISSION OF CONTRACT-FRAUDULENT REPRESENTATIONS. General representations to the vendor of an interest in mining property, that the purchaser could command capital to work the mine.and influence so that a future sale could be advantageously made, which do not definitely appear to have formed part of the consideration, or to have been made with fraudulent intent, or to have been in fact false, followed a considerable time afterwards by the exaction of hard conditions, whereby the vendor was compelled to sell at a less sum than anticipated, are not sufficient evidences of fraud in the inception of the contract to invalidate it. 2. DURESS-OF PROPERTY-WHAT CONSTITUTES. Complainant agreed to convey to defendant an interest in certain mining property by a deed passing a good and perfect title. In pursuance of such agreement, he gave the defendant a quitclaim deed, which defendant accepted. A third party made an unfounded claim to the property, which defendant voluntarily bought up. At the time of such claim, complainant was a depositor in defendant's bank and de fendant compelled him, by refusing to honor his checks, to settle for part of the sum paid to such third party. Held that, as by accepting the quitclaim deed defendant had waived all rights to a covenant against incumbrances, he had no right to demand a repayment of such sum even if the claim had been valid, and such settlement was in duress of complainant's property, and void.1 3. SAME-TAKING ADVANTAGE OF PARTY'S FINANCIAL EMBARRASSMENT. The refusal of a purchaser to pay the contract price of mining property on the ground of false representations, and the acceptance by the seller of a less sum on account of financial embarrassment, does not constitute duress, if the purchaser had done nothing unlawful to cause such financial embarrassment. 4. SAME. Acceptance by a seller of a certain sum for his interest in mining property, be cause of financial embarrassment, and of his co-owners pressing him to pay his share of improvements made on the land, does not constitute duress, so as to invalidate the sale, or the settlement made by the seller with his co-owner, the latter being willing to take a mortgage on the seller's interest in the mine for his claim, and the sale and receipt of the purchase money by the seller being made with the understanding that such claim was to be paid out of the money received from the sale. Error to district court, Rio Grande county. Adams, the plaintiff in error, filed his bill of complaint in the court below against Schiffer, Forsch, and Stern, praying for an account, and a reconveyance to him of the Aztec lode and the Aztec mill-site, and, in case he should not be entitled to this relief, that the defendants be decreed to pay him certain sums of money. The cause was tried to the court, on the bill, answer, and evidence, and the bill dismissed. From this decree Adams appeals to the supreme court. It appears from the evidence that the plaintiff in error, Adams, on the 24th day of January, 1881, entered into a contract to sell to the defendant Schiffer an undivided one-half interest in certain mining and milling property, viz., the Summit lode and the Summit mill-site, situate in Summit mining district, in Rio Grande county, with the engine, stamp-mill, and machinery thereon. The consideration was $3,500,-$1,500 cash in hand, the remaining $2,000 to be paid when, in the language of the contract, "said Adams shall execute and deliver to said Schiffer good and sufficient deed of conveyance, passing to said Schiffer a good and sufficient title to the above-described property.' It was further agreed "that at any time when, by mutual consent, the whole of said property shall have been sold for the sum of $40,000, or the interest of said Schiffer in said property shall have been sold for the sum of $20,000, the said Schiffer will immediately pay to the said Adams the sum of $6,000." Schiffer further agreed "to furnish the sum of $5,000 as working capital for the working and developing of the aforesaid property; said amount to be furnished as needed for the working and developing of said property; and it is agreed that the said $5,000 shall be repaid to said Schiffer out of any proceeds arising in any way from said property." It was further agreed "that, should it be advisable for said Adams to relocate the lode or mining claim and mill-site heretofore described and known as the Summit Lode,' and 'Summit Mill-Site,' and to change the name of said lode from its present name, Summit Lode,' to that of 'Aztec Lode,' and to change the name of the said mill-site from its present name, Summit Mill-Site,' to that of the Aztec Mili-Site,' then all of the aforementioned agreements by each of the parties hereto in relation to the said Summit lode and Summit mill-site shall apply with equal and full force and effect to the Aztec lode and Aztec mill-site, when the same shall have been located." In selling and purchasing, the respective parties had in view placing the property on the New York market, and selling it at an advance. The complainant, Adams, addressed himself at once to the relocation and entry of the lode and mill-site under the name of the "Aztec Lode" and "Aztec Mill-Site." The entry under that name was made by him on or about the 15th of the fol * * * As to what constitutes duress, see Lomerson v. Johnson, (N. J.) 13 Atl. Rep. 8, and note. |