(60 Colo. 343) WHITE et al. v. TOWN OF ARVADA. (No. 8359.) (Supreme Court of Colorado. Dec. 6. 1915.) 1. HIGHWAYS 29-ESTABLISHMENT STAT UTE. Under Rev. St. 1908, § 5850, providing that, upon presentation to the board of county commissioners of any county of a petition for a highway, signed by all owners of all land through which the road is to be laid out, giving the right of way through the lands, and accompanied by a plat of the road, it shall be the duty of the board to declare the same a public highway, where one of the owners through which a proposed highway was to pass did not sign the petition therefor, the highway was not established, although the board approved the petition and declared its establishment, as the board was without authority, under the statute, to declare a highway. [Ed. Note.-For other cases, see Highways, Cent. Dig. 88 47-59; Dec. Dig. 2. HIGHWAYS UTE. 29.] 44-ESTABLISHMENT-STAT The board was likewise unauthorized to declare a public highway over only part of the road petitioned for. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 27, 137-140; Dec. Dig. 44.] way 60 feet wide, the county commissioners Error to District Court, Jefferson County; Suit by J. F. White and others against the Town of Arvada. Judgment for defendant, and plaintiffs bring error. Reversed. Davis, Whitney & Mothersill, of Denver, for plaintiffs in error. George B. Campbell, of Denver, for defendant in error. HILL, J. The plaintiffs in error, with lands abutting upon the south side of Ral3. HIGHWAYS 66-ESTABLISHMENT-ES- ston avenue in the town of Arvada, a municTOPPEL OF ABUTTING OWNERS TO DENY. Where, on petition of all but one landowner affected that a highway 60 feet wide be declared, the board of county commissioners declared a shorter highway to exist, but the way as actually fenced was only 50 feet wide, and the township which was subsequently formed never claimed beyond the 50-foot point, the rule that one accepting and obtaining the fruits of a void judgment is estopped from assailing the judgment itself had no application to preclude the owners of property abutting on the highway, who had used the road and acquiesced therein, but had always claimed up to the fence, from claiming that their property included the 10-foot strip between the petitioned 60-foot border of the highway, and the 50-foot border as it was actually fenced, though if the parties had claimed the 50 feet actually covered by the highway, such rule of estoppel would have been applicable. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 222-224; Dec. Dig. 66.] 4. LIMITATION OF ACTIONS 44-HIGHWAYS RIGHT OF ABUTTING OWNER ASSERTION OF TITLE. Where a petition to the board of county commissioners for the establishment of a highway was not signed by one of the landowners affected, so that the implied condition of the grant of rights of way by the signing owners that all should sign was unfulfilled, the board nevertheless declaring that the highway existed to a width of 60 feet, and a road actually 50 feet wide being fenced, some petitioners and the successors in title of others thereafter suing to restrain the town's interference with the 10-foot strip between the road as actually fenced and used and their unconsummated grant of a right of way, the statute of limitations was not involved to bar petitioners' claim to the land, which was not based upon an easement, prescription, or adverse possession. ipal corporation, brought this suit to re- The plaintiffs' complaint and the material allegations in their replication, to which a demurrer was sustained, and which require the application of the law thereto, disclose: That in April, 1891 (which was prior to the incorporation of the defendant town), in pursuance of the provisions of section 5850, R. S. 1908, a petition was filed with the board of county commissioners of Jefferson county, praying for the laying out and opening of a county road between two and three miles in length, in sections 10, 11, and 12, Tp. 3 S., R. 69 W., as in the petition described to be 60 feet in width, etc. That this proposed road is along the line adjacent to the property of the plaintiffs, now in dispute. That the petition was signed by some of them and by the predecessors in interest of the others. That it was not signed in any manner by six of the owners of lands through which the road was to be laid out. That the names of five owners were not sign66-ESTABLISHMENT-SUR-ed by them, but by parties who claim to repWhere all but one of the landowners affect-resent them. That the county commissioned petitioned for the establishment of a high-ers acted favorably on the petition, and, in [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 220-230, 232; Dec. Dig. 44.] 5. HIGHWAYS VEY-EFFECT. pursuance of the authority given them by the above sections, passed a resolution, declaring a county road along the line as stated in the petition, with the exception of a strip 30 feet wide across 40 acres owned by a Mrs. Farmer, which was specifically omitted by the resolution; that as to this quarter the resolution states: "The right of way being granted for said road by all the owners of the lands over which said road is sought to be located with the exception of Mrs. Farmer, the owner of N. W. 1⁄4 of S. E. 4, Sec. 11, Tp. 3 S., R. 69 W., the said road is hereby located with the exception of the 30 feet in width on said Farmer land, and the same is hereby established and declared a county road, under the provisions of the statutes," etc. That the resolution also awarded a con tract to one R. G. Green for fencing the road. That shortly after the passage of the resolution, Green fenced a road 50 feet wide along the line described in the petition, but commenced 80 rods east of the point where the road was to begin. That the fence along the south side of the road as then construct ed marks the alleged boundary line involved That the fence was paid for by the county. That since the road was ac in this case. tually opened and fenced in 1891 by Green, it has been 50 feet wide and no more, except as above stated. That plaintiffs and their grantors have always occupied, used, and improved their lands up to the fence erected by Green. That the public has never used or claimed any land for a road or street except that included within the fences erected by Green. That at all times since it has with reference to the boundary line of the street in accordance with such ordinance, using the fence erected by Green as the boundary line. That these sidewalks were put in with the knowledge and acquiescence of the town authorities. That at the time the town put in crosswalks across streets intersecting the plaintiffs' walks and in line with the walks which plaintiffs had constructed. [1, 2] In arriving at its conclusion, the the court seems to have proceeded upon the theory that the original petition for the 60feet road was sufficient in form to justify the action of the board of county commis. sioners, and that its sufficiency in other respects was for them to determine, and that it would not be gone into by the courts This petition was many years thereafter. under a statute permitting county commissioners to declare certain lands a highway when signed by all of the owners of all the lands to be taken for the road. The diffi culty is not with the court's line of reasoning, but in its application to the facts, which places it outside of the cases to which the board, which attempts to declare and lay learned jurist refers. The resolution of the out this highway, expressly recognizes the fact that the petition was not signed by all the owners of all the lands to be included in the road. Also, it did not purport to grant the petition prayed for, but only a part of it, excepting therefrom a strip 30 length. It also discloses on its face that it feet in width for a quarter of a mile in lands to be taken, but that others had signed was not signed by five of the owners of the for them, and with nothing to show they were possessed with this authority. Section 5850, R. S. 1908, reads: board of county commissioners of any county "Whenever a petition shall be presented to the of this state praying for a public highway, and the names of all the owners of all the land through which said road is to be laid out, shall be signed by the owners thereof to said petition, giving the right of way through the lands, and accompanied by a plat of the road, it shall be the duty of the board of county commissioners, if in their opinion the public good requires it, to declare the same a public highway, and thereupon the plat shall be filed and recorded and the said road shall become a public highway from and after that date." been cared for, repaired, maintained, and used by the county, and since its incorporation in 1904, by the town, within the 50-foot space between the fences, and has thus been recognized, used, and treated as the boundary by the municipal authorities having charge of it, by the public, and by the plaintiffs and their grantors, and that the plaintiffs and their grantors have, during said period of more than 22 years, erected houses, planted trees, built cement sidewalks, and otherwise improved their respective properties abutting upon said road, relying upon and with reference to the boundaries of the road as so marked and defined by the fences theretofore erected under the authority of the board of county commissioners. That the board of county commissioners of Jefferson county has never attempted to change the boundaries of the road as so marked and defined. That since its incorporation, the town of Arvada never attempted to change said boundaries until a short time before the commencement of this action, when it attempted to widen the road to 60 feet. That more than a year before the commencement of this action, certainly statutory, and must be substantially comof the plaintiffs built cement sidewalks in front of their premises adjacent thereto, which walks were, as to width and material, in accordance with ordinance of the town theretofore adopted, and were located Eliminating the question that six owners never signed the petition at all, and no one for them, the record of the board still discloses that this section was not complied with, for which reason they were without authority, under the provisions of this section, to attempt the laying out and opening of a part of the highway. There are many reasons for this. The proceedings are pure plied with. The statute says whenever the names of all the owners of all the lands shall be signed by the owners thereof to said petition giving the right of way, etc. Eliminating the question of the names of those signed by others, still this was not | Had the petition been signed by all the landdone, and the resolution so states. If they owners and the board granted it as prayed, can act without one, as their record shows then, eliminating the question of time, and they attempted, then they could act without | no acquiescence or recognition in a 60-foot others. There would be no dividing line. road and the fencing, constructing and acThe section also says "it shall be the duty quiescing in a 50-foot road, the reasoning, of the board * * * to declare the same in our opinion in Montezuma Valley Irrigaa public highway," etc. This, they did not tion District v. Longenbaugh, 54 Colo. 391, do, but declared only a part of it to be such. 131 Pac. 262, would apply, but it has no apThis, the statute does not authorize. Elim- plication to the facts here. There are cases inating the allegations that the names of which hold that, where a road has been regsix landowners were never signed at all, ularly laid out, a part of it may become lost and assuming, arguendo, that per the lapse and revert to the adjacent landowners by acof a long period of time, courts will not in- quiescence, abandonment, etc. Abbott on quire into that question, especially upon be- Municipal Corporations, vol. 2, § 824; Dillon half of those who have signed the petition, on Municipal Corporations, vol. 2 (4th Ed.) their record still discloses that the board § 674; Weber v. Iowa City, 119 Iowa, 633, was without authority, under this petition, 93 N. W. 637; Davies v. Huebner, 45 Iowa, to do what it attempted. Thatcher v. Cris- 575; Coleman v. Flint & P. M. R. Co., 64 man, 6 Colo. App. 49, 39 Pac. 887; Fifteenth Mich. 160, 31 N. W. 47. Street Inv. Co. v. City & County of Denver, 147 Pac. 677. [4] It is unnecessary to consider that question or the statute of limitations involved in this line of decisions, concerning which there is a conflict of authority. The plaintiffs' claim to this land is not based exclusively upon an easement, prescription, and adverse possession; they also claim as absolute owners in fee to lands which they have never conveyed to any one by any instrument which has ever become effective, and est, or some of them have always had possession of, and thus openly exercised through a claim of title in fee, and to which lands they claim the municipality has not acquired any right, by any easement, prescription, or adverse possession or otherwise. In such case, they were under no obligations to do anything further until their alleged right to it was in some manner attacked. Munson v. Marks, 52 Colo. 553, 124 Pac. 187. If the allegations of their complaint and replication in this respect are true, we are of opinion that the municipality has nothing to support its claim that there ever was or is other than a 50-foot highway along the lands of the plaintiffs involved in this action as evidenced by the original fence and thus acquiesced in by all parties during the past 22 years. [3] In Denver City Irrigation & Water Co. v. Middaugh, 12 Colo. 434, 21 Pac. 565, 13 Am. St. Rep. 234, it is held that a party accepting and obtaining the fruits of a void judgment is estopped from assailing the judgment itself. The defendant claims the rule is applicable here. The pleadings disclose that a part of the plaintiffs, together with the predecessors in interest of the oth-which they and their predecessors in interers, along with the public generally, have accepted and enjoyed the fruits of a public highway 50 feet in width, with the exception of a fourth of a mile, which was thus fenced, improved, and recognized by the county until the incorporation of the town, and thereafter by it, a total period of 22 years. Were there any contention over this 50 feet as covered by the fence, we think the court's reasoning would be sound, and that the rule of estoppel would be applicable, but the allegations of the plaintiffs are that none of the petitioners or their predecessors in interest have ever recognized any right of the county or town to a highway, or lands for a highway, beyond the line of the fence constructed by authority of the county. The signing of the petition by a landowner, agreeing to give the right of way over his land under this section, is not an absolute grant, but is conditional, one of the conditions being that the other owners of all the lands to be taken for the road do likewise. They cannot all sign at once; one must sign first. Other conditions are that if, in the opinion of the board, the public requires it, then they declare the same a public highway, and the plat be filed, etc. The board's records disclose that all the other owners did not sign the petition, and the board did not declare it a public highway as prayed, but only a part of it, for which reasons, the cases cited upon the question of estoppel applicable to county roads are not in point, when applied to the lands never claimed or taken for that purpose during the 22 years [5] We are not unmindful of the defendant's allegation that in November, 1899, the board of county commissioners authorized the county surveyor to survey this road, and that he did so and defined it as 60 feet wide and filed a report to that effect with the county commissioners, which was duly adopted. This was put in issue by the defendant, which, if material, like other allegations, prohibited a judgment on the pleadings; but if the allegations of the plaintiffs' complaint and replication are true, we cannot appreciate wherein a survey of a 60foot line by the county surveyor and his report to the board of what he did, etc., not followed by any act of possession or open cause of action. Gentleman v. Soule, 32 Ill. 271, 83 Am. Dec. 264. We deem it unnecessary, at this time to go into the question of the construction of sidewalks by authority of the city, its acquiescence in this respect, and whether, if it is right as to its being a 60-foot road, upon account of the sidewalk allegations, etc., it might be enjoined or the plaintiffs relegated to an action at law for damages, or whether liable at all, for the reason that if the plaintiffs can prove the allegations of their complaint and replication concerning the highway proper, the other questions become immaterial. The demurrer should have been overruled, and the motion for judg ment on the pleadings denied. The judgment is reversed, and the cause remanded, for further proceedings, as the parties may be advised, not inconsistent with the views herein expressed. Reversed. agents of the company, subsequent to the issu- Testimony of one who had worked for the insured in a drug store in New Mexico, where had attacks of asthma during the months he insured had gone for his health, that the latter knew him in 1906, insured's application in 1910 for the insurance having shown that he went to New Mexico because of asthma, was properly excluded as immaterial; the time of witness' knowledge of insured's condition of health being too remote to have any bearing on his condition at the time of the application. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1677-1685; Dec. Dig. 655.j 6. APPEAL AND ERROR 1056 HARMLESS ERROR-EXCLUSION OF EVIDENCE. Rejection of testimony of a witness that he had hunted and fished with insured, and observed nothing to indicate he was not in good health, was harmless as to the insurer. [Ed. Note.-For other cases, see Appeal and Dig. 1056.] GABBERT, C. J., and TELLER, J., con- Error, Cent. Dig. §§ 4187-4193, 4207; Dec. cur. (60 Colo. 324) 7. INSURANCE 655-ACTION ON POLICYEVIDENCE. NORTHWESTERN MUT. LIFE INS. CO. v. sured while the latter was in New Mexico in Testimony of a witness, who knew the in FARNSWORTH. (No. 8318.) (Supreme Court of Colorado. Dec. 6, 1915.) 1. INSURANCE 655-ACTION ON LIFE POL ICY-EVIDENce. In an action on a policy of life insurance, defended on the ground that the insured, a physician, had known that he was afflicted with emphysema, and had procured the policy by collusion with the insurer's medical examiner, testimony of a physician that he purchased the insured's practice, and that the latter told him that he was going to New Mexico for his health, and that the witness volunteered to make a physical examination, which the insured declined, was properly excluded as immaterial. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1677-1685; Dec. Dig. 655.] 2. INSURANCE 655-ACTION ON LIFE POL ICY-EVIDENCE. 1906, that he then had asthma, the application for the insurance having been made in 1910, was properly excluded as too remote to have proba tive value. Cent. Dig. §§ 1677-1685; Dec. Dig. 655.] In an action on a life policy, defended on the ground that insured, a physician, had known he was diseased, misrepresented his condition, and had procured insurance by collusion with the medical examiner, evidence held insufficient to show that insured made any knowingly false declaration as to his condition of health in his application. Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. 9. INSURANCE 380 In an action on a life policy defended on the ground that insured, a physician, had misLIFE INSURANCE represented that he was not diseased, and pro- FRAUD OF MEDICAL EXAMINER. cured the insurance by collusion with the insur- Where the medical examiner of a life iner's medical examiner, testimony of a newspa-surance company knowingly withheld from the per proprietor in the town where insured lived, company knowledge that an applicant for inidentifying a local item in the paper, noting a surance was diseased, the company issuing the temporary illness of the insured, and an edito- policy, being defrauded for that reason alone, rial, eulogistic of insured, and testimony that it was thereafter estopped to deny liability therewas generally understood that insured left the on on the ground of its having been procured town to go to New Mexico on account of ill by misrepresentations, since the fraud was the health, which was what insured had stated in willful act of its own agent alone. his application for insurance, was properly ex- [Ed. Note. For other cases, see Insurance, cluded as immaterial. Cent. Dig. § 998; Dec. Dig. 380.] 10. INSURANCE →378 LIFE INSURANCE [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1677-1685; Dec. Dig. 655.] 3. APPEAL AND ERROR 1056 HARMLESS ERROR-EXCLUSION OF EVIDENCE. The exclusion of depositions bearing on an issue which would not have affected the judgment is harmless error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. ~1056.] 4. INSURANCE 655-ACTION ON LIFE POLICY-EVIDENCE. AVOIDANCE OF POLICY. False statements in an application for insurance which the agent of the insurer knows to be false cannot be set up as a defense to the policy, as the knowledge of the agent is the knowledge of the company. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 968-997; Dec. Dig. 378.] Error to District Court, Morgan County; H. P. Burke, Judge. Testimony of the insurer's secretary relatAction by Mary J. Farnsworth against the ing to correspondence between the officers and Northwestern Mutual Life Insurance Com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes pany. Judgment for plaintiff, and defendant, Farnsworth for about two years, and had brings error. Affirmed. William R. Nethercutt and Taylor & Pen dell, of Ft. Morgan, for plaintiff in error. C. C. Rickel and Coen & Coen, all of Ft. Morgan, and Benedict & Phelps, of Denver, for defendant in error. SCOTT, J. This is an action by the defendant in error to recover upon a life insurance policy in the sum of $2,000, issued by the plaintiff in error to the husband of complainant. The policy was dated January 3, 1910, and the insured died October 12, 1910. The answer admits the issuance of the policy and the payment of all premiums, but alleges false statements and answers to certain questions in the application for insurance, and that the insured, for a long time prior to the application, and at the time thereof, had been rapidly declining, had numerous and repeated attacks of asthma, coughing spells, expectoration, and lung disorders; that deceased was affected with a chronic constitutional disease called "emphysema"; that he was a physician and surgeon; well knew his diseased condition; and that he was not an insurable risk at the time of his application. These allegations in the answer were denied generally by the reply; estoppel was also pleaded upon the ground that the defendant's medical examiner had knowledge of the physical condition at the time of the examination, and that the company had discovered the physical condition of the insured in June or July, prior to his death in October, and had not canceled the policy. The testimony was entirely by deposition. The cause was tried to the court without a jury, who made a general finding for the plaintiff and rendered judgment accordingly. The specific allegations of the answer as to the alleged false statements are the following: "Q. When were you last confined to the house by illness? How long? What nature? A. Five years ago, asthma, two weeks. "Q. When did you last consult a physician, and for what? A. As above. "Q. Have you fully recovered and are you now in good health? A. Yes. "Q. Give name and address of physician who attended you. A. Dr. F. D. Rogers, Littleton, Colorado. "Q. Have you had since childhood any of the following diseases or disorders, asthma or shortness of breath? A. Yes. "Q. Pleurisy, bronchitis, pneumonia, or any chest or lung disease? A. No. "Q. Have you had since childhood any chronic or constitutional disease or severe injury not fully set forth above? A. No." The only testimony admitted by the court aside from the documentary evidence was the depositions of Dr. W. W. Claybaugh, examiner for defendant company, who made the medical examination of the insured, and E. J. Richards, the local agent of defendant company at Ft. Morgan, where the insured resided. All other depositions were rejected. just an ordinary professional acquaintance with him prior to the application and ex amination; that about a week prior to that with the witness for the purpose and upon time Farnsworth had moved into the office conditional understanding that Farnsworth was to purchase the equipment and practice of the witness; that he wrote the answers of Farnsworth found in the application, and made a physical examination of him at the time; that he did not know of Farnsworth's trip to New Mexico referred to in the application; did not know of his taking any trips for the benefit of asthma, or any other trouble during his acquaintance, except what was said by Farnsworth in the application; does not know that any other physician had given an opinion that the insured was not safely insurable. He says that he intimated to Farnsworth that he reluctantly recommended him as a good risk, and intimated that he did not think he was a first-class risk; that, based upon the physical examination, he was of the opinion that Farnworth had what is technically known as emphysema, but does not say that he told Farnsworth, or even intimated to him that in his opinion he had any such disease. He says he recommended the insurance: First, for the reason that he recognized emphysema in that particular form was not necessarily a fatal disease; and, secondly, because of the fraternal feeling he had for a copractitioner. The following questions and answers appear in the testimony of Claybaugh: "Q. Doctor, is it not a fact, that, after you informed Dr. Farnsworth of your unwillingness to recommend him, he insisted upon your recommending him because of the needs of his family, and that you consented to so recommend him by reason of such overtures made by said Farnsworth? A. If you mean, Mr. Taylor, by the word 'overture' that there was any suggestion other than friendship or sympathy for a fellow practitioner, I would say no. What he said was that he needed the insurance and expected me to get it for him. Q. What did he say to you about his physical condition? A. He said that I couldn't find anything wrong with his lungs, he denied that he had tuberculosis, and he defied me to find anything wrong with his heart. I found nothing wrong with his heart at that time; that is, that it was acting regularly, very substantial work at that time." He further testifies that Farnsworth never consulted him about his condition; that he did not know whether Farnsworth had diminished or increased in weight within a year prior to the examination; that he did not think the applicant had recovered from his illness of five years before, but that he had no personal or professional knowledge of any illness subsequent to that attack; that Farnsworth had spells of coughing, but that up to the time he moved into witness' office he was not associated with him enough to know how frequently the coughing spells occurred; that after he came into the office, whether before or after the application was written, does not appear, he had frequent coughing spells, but |