We must therefore here determine the reasonableness and justice thereof, not only with respect to the convenience afforded the public, but also with due regard to the increased cost to the company. Seward v. Denver R.G.R.R. Co., 17 N.M. 557, 141 P. 980, 46 L.R.A. (N.S.) 242; Denton Bros. et al. v. Atchison, T. S.F. Ry. Co. et al., 34 N.M. 53, 277 P. 34. [ 2] The defendant company established a station at Ricardo in 1907, and maintained same to the middle of the year 1928.
There could be a difference, of course, on appeal; in the equity case the judgment being sustained unless against the clear weight of the evidence, and in the law case where there was competent evidence reasonably supporting the judgment. The only equity case holding in anywise contrary to the rule herein announced is the case of Fish v. Sims, 42 Okla. 535, 141 P. 980. The difference in this case and the present case is that the Commissioner writing the decision found that the trial court did not weigh the testimony, but sustained the demurrer to the testimony on a failure of proof on the part of the plaintiff, which the Commissioner held did not, in fact, exist.
"In an equitable suit, tried to the court without a jury, where there is any evidence introduced at the trial of a cause, coupled with admissions in the pleadings, which reasonably tends to establish the allegations of plaintiff's petition, it is error for the court to sustain a demurrer to such evidence." Fish v. Sims, 42 Okla. 535, 141 P. 980. There is some contention by counsel that certain statements made by counsel for defendant in opening their case supplied certain essential facts which the court considered in sustaining the demurrer to the evidence.
"The facts in a case never change, nor will a party be allowed to change his recitation of the facts simply because it may happen to be advantageous to do so." In Fish v. Sims, 42 Okla. 535, 141 P. 980, the court said: "The defendant having admitted in his answer that the lands described in plaintiff's petition were the allotments of Mekey and Losanna Bruner, it was not necessary, therefore, for the plaintiff to introduce any evidence in support of her allegation that Mokey Bruner and Losanna Bruner were the allottees of said lands; this fact having been admitted by the answer."