Opinion
No. 12,255.
Decided February 24, 1930.
Action for damages and injunction. Judgment for defendants.
Affirmed.
1. APPEAL AND ERROR — No Objection Below. On the trial of an action to restrain interference with plaintiff's claimed "way of necessity" across defendants' land, plaintiff, having abandoned his claim of a statutory right and without objection proceeding upon the theory of an agreement between the parties for such way, could not, on review, urge that the court erred in holding that there had been no compliance with the statute on the subject.
2. Fact Findings. There being sharply conflicting evidence upon the question of the execution of an agreement between the parties, the court did not err in finding that no agreement had been consummated.
Error to the District Court of Fremont County, Hon. James L. Cooper, Judge.
Mr. ORION W. LOCKE, for plaintiff in error.
Mr. T. LEE WITCHER, Mr. O. P. RAY, for defendants in error.
PARTIES here appear as in the lower court.
Plaintiff sued defendants in the district court of Fremont county for damages alleged to have been occasioned by defendants' interference with the use of plaintiff's claimed "way of necessity" across defendants' land, and for an injunction restraining defendants from further interference therewith. Upon a trial to the court, it found for the defendants and entered judgment for their costs.
During the trial, it being contended by defendants that the statutes were not complied with and no way thereby established, plaintiff's counsel abandoned this claim and consented that the trial proceed upon the theory that an independent agreement existed between plaintiff and defendants granting such way. Plaintiff now seeks a review of this judgment, contending that the court erred in holding that the statutes had not been complied with and that the evidence failed to disclose an agreement for a way of necessity.
Plaintiff, without objection and exception, having waived his right to claim a way of necessity by compliance with the statutes, and having proceeded to trial upon a theory that an agreement for such a way was executed between the parties, cannot now here urge that the court erred in holding that such statutes had not been complied with. Kendall v. Metroz, 65 Colo. 387, 176 Pac. 473.
As to the execution of the agreement between the parties for a way of necessity, the record discloses sharply conflicting testimony. Therefore, the court did not err in finding that no such agreement had been consummated.
Judgment affirmed.
MR. CHIEF JUSTICE WHITFORD, MR. JUSTICE BUTLER and MR. JUSTICE BURKE concur.