the assessments made by the tax officials of the county and state upon like property similarly situated. A hearing was duly had upon said petition, after which, and on October 1, 1913, the tax commission made its order upon same. The plaintiff in error filed its notice of appeal in the office of the tax commission on February 21, 1914, and on March 18, 1914, the secretary of the commission filed in the office of the clerk of the district court a transcript of the proceedings before the tax commission. The district court, upon motion of the Colorado tax commission, appellee, dismissed the appeal upon the ground that it should have been, and was not, taken on or before the first Monday in January, which was January 5, 1914. This dismissal is the error assigned. The appeal from the decision of the tax commission to the district court was taken pursuant to the provisions of section 5634, R. S. 1908, as amended by chapter 134 of the Session Laws of 1913. After providing for the filing of a petition with the Colorado tax commission setting forth the errors or erroneous assessments concerning which complaint is made, and for written decision thereon by the commission, the act provides: "If upon such hearing the said commission shall find that no ground or reason for the filing of such petition or complaint existed and in case the decision theretofore made by the said commission shall be affirmed in whole or in part, the taxpayer complaining may appeal from its decision to the district or county court of the county wherein the property is located, on or before the first Monday in January following said assessment. Such appeal shall be perfected in the same manner as now provided by law for appeal from boards of county commissioners upon the disallowance of a claim against the county, but before the appeal shall be allowed the petitioner shall pay to the county treasurer the amount of the tax levy pursuant to said assessment and in case the appellant shall succeed in whole or in part the treasurer shall refund such tax in whole or in part according to the modification so made upon the presentation to him of a certified copy of the order of the judgment modifying the same in all cases wherein a tax so collected shall be refunded the taxpayer shall receive interest on the amount refunded at ten per cent. per annum from the time of the payment thereof." It is conceded in this case that the appeal was not taken until more than two months had elapsed after the first Monday in January. The general rule applicable to this situation is stated in Corpus Juris as follows: "It is very generally held that the statutes which limit the time for appeals or proceedings in error are mandatory and jurisdictional, so that, in the absence of express provision to the contrary, when an appeal or proceeding in error is not taken and perfected, nor a writ of error sued out, within the prescribed time, it will be disallowed or dismissed, unless appellant or plaintiff in error can show some excuse which the court will deem a sufficient reason for relieving him from the consequences of his failure to comply with the law." 3 C. J. 1066. The rule seems more strict when applied to tax cases, as appears from the following statement in Cyc.: "The statutes granting a right of appeal from tax assessments restrict the time within which ally prescribing a short period in order that the such proceedings for review may be taken, usucollection of the public revenues may not be unduly delayed; and it is generally held that the courts have no jurisdiction or authority to entertain an appeal after the time limited by law." 37 Cyc. 1116. The plaintiff in error contends that it is excused from having taken the appeal before the first Monday in January following the tax commission's order sought to be appealed from, upon the ground that the assessment roll and tax list for the year 1913 was not delivered by the assessor of Boulder county to the county treasurer until March 2, 1914, and that plaintiff in error paid in full the taxes levied pursuant to the assessment in question and complained of in the appeal on March 3, 1914. The statute prescribes no causes or conditions for or under which the time for taking an appeal may be extended. This court, in the case of Walton v. Canon City, 39 Colo. 82, 84, 88 Pac. 860, having reference to a statute providing for an appeal, held that the statute recognizes no excuse for failure to take an appeal within the prescribed time. While not deciding that there may not be circumstances of accident or misfortune beyond the control of an appellant, which would excuse the taking of an appeal in the time prescribed by the statute, we are of the opinion, however, that the present case does not disclose such circumstances. The plaintiff in error, appellant below, took no steps in taking the appeal until February 21, 1914. The annual levy for general purposes of taxation for the county of Boulder was made on the 31st day of December, 1913, as shown by the stipulation in the record. The order of the tax commission appealed from was made October 1, 1913. The notice of appeal could have been filed prior to January 5, 1914. If it is necessary to pay taxes in order to take an appeal, the record fails to disclose sufficient facts to excuse plaintiff in error for his failure to make a tender to the county treasurer of the amount of its taxes, prior to the first Monday in January. was not taken in time was right. The judgThe trial court in holding that the appeal 2. PUBLIC LANDS 145-CONVEYANCE RESERVING MINERALS-VALIDITY. Under Rev. St. §§ 5167, 5185, providing the conveyance of state lands shall vest a title in fee or fee simple, the State Board of Land Commissioners has no power to reserve the mineral rights in such conveyances, and such reservation is void. [Ed. Note.-For other cases, see Public Lands, Cent. Dig. § 400.] 3. PUBLIC LANDS 145-GROUNDS-ACCEPTING DEED WITH MINERAL RESERVATION. A purchaser's knowledge that a mineral reservation would be incorporated in his conveyance from the state, his payment of purchase-price installments after knowing state officials had granted a mining lease covering his property, and his application for such a lease do not estop him from contesting the validity of such mineral reservation. [Ed. Note.-For other cases, see Public Lands, Cent. Dig. § 400.] Hill and Scott, JJ., dissenting. En Banc. Error to District Court, City and County of Denver; John H. Denison, Judge. Suit by N. S. Walpole against the State Board of Land Commissioners of the State of Colorado. Judgment for defendant, and plaintiff brings error. Reversed. eight years. The testimony is conflicting as to whether plaintiff withdrew this application, or whether it was rejected by the defendant Board. In any event, plaintiff did not obtain the lease, but one was granted to George Morrison. In August, 1915, plaintiff began suit in the District Court of the City and County of Denver, asking injunctive relief to restrain the Board from issuing such lease to Morrison, so far as it affected the quarter section here involved. On trial the bill was dismissed, judgment entered for defendant, and plaintiff brings the cause here for review on Land Commissioners to provide for the location. "It shall be the duty of the State Board of protection, sale or other disposition of all the lands heretofore, or which may hereafter be granted to the State by the general government, under such regulations as may be prescribed by N. Walter Dixon, Floyd F. Walpole, and law; and in such manner as will secure the Thomas J. Dixon, all of Denver, for plain-maximum possible amount therefor. tiff in error. Fred Farrar, Atty Gen., and Wendell Stephens, Asst. Atty. Gen., for defendant in error. BAILEY, J. On November 3, 1909, plain tiff in error, plaintiff below, purchased from the State Board of Land Commissioners of the State of Colorado, defendant in error, defendant below, a certain tract of school land, described as the Northwest Quarter of Section 16, Township 1 North, Range 68 West, for the sum of $3,600. In March, 1909, application to purchase the entire section was made and the Board advertised it for sale, under the statute. The notice of sale contained the following mineral reservation: "Reserving, however, to the State of Colorado, all rights to any and all minerals, ores and metals of every kind and character, and all coal, asphaltum, oil, and other like substance, in and under said land, and the rights of ingress and egress for the purpose of mining, together with as much of the surface of the same as may be necessary for the proper and convenient working of such minerals and substances." Plaintiff was present at the sale and purchased the quarter-section above described, made the first payment and arranged for payment of the balance of the purchase price in eighteen annual installments, receiving a certificate of purchase upon which was printed the above mineral reservation. In December, 1910, defendant issued to one Kirchhoff a mining lease of the entire Section 16, permitting him to extract coal therefrom for a period of five years. No coal was mined under this lease, which was cancelled by the Board in 1915. Plaintiff thereupon filed application for a similar lease for a period of of said lands from time to time; and for the The general assembly shall provide for the sale faithful application of the proceeds thereof in accordance with the terms of said grants." [1] Under this section of the Constitution the Board does not in any sense stand in the [2] Section 5167 provides that: "The governor of the State shall be, and is hereby authorized, and in case of his absence or inability, the lieutenant governor shall be. and is hereby authorized to execute a good and sufficient deed or patent of conveyance, transferring in fee, without covenants, any and all lands which shall, or may be ordered sold, or which shall be sold and disposed of by the State Land Board under the statutes of this State. Such deed or patent shall be attested by the secretary of state, countersigned by the register, and have the great seal of the state and the seal of the state board of land commissioners thereto attached, but need not be acknowledged. The certified copy of the record of any such deed or patent shall be receivable in evidence in all courts of record in this state, the same as the original." It is provided by Section 6296, Rev. Stat. 1908, that the terms "land," "lands," and "real estate" shall be construed to include lands, tenements and hereditaments. Land has an indefinite extent upward and downward from the surface of earth, and therefore includes whatever may be erected upon it, and whatever may lie in a direct line be tween the surface and the center of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 163 P.-54 earth. 3 Kent, 378. Tiedeman, at Sec. 2 (3d Ed.), defines land thus: "Land is the soil of the earth, and includes everything erected upon its surface, or which is buried beneath it. * A grant of lands therefore, without any qualification, conveys not only the soil, but everything which is attached to it, or which constitutes a part of it, the buildings, mines, trees, growing crops, etc." Section 5185 authorizes the sale of lands upon deferred payments, with the privilege of anticipating installments, and provides that: * Whenever a purchaser of any state land state has complied with all the conditions of the sale, and paid all purchase money with the lawful interest thereon, he shall receive a patent for the land purchased; such patent shall be signed by the governor, attested by the secretary of state, and countersigned by the register, and have the great seal of the state and the seal of the state board of land commissioners thereto attached; and when so signed, such patent shall convey a good and sufficient title in fee simple." The Board, therefore, must convey the land in fee. The terms "fee," "fee simple," and "fee simple absolute," are interchangeable, and convey an estate the owner of which may exercise an exclusive control of against all others: A good and sufficient title in fee simple means "the legal estate in fee, free and clear of all valid claims, liens and encumbrances whatsoever. It is the ownership of land, the dominum directum et absolutum, without any rightful participation by any other person in any part of it." Jones v. Gardner, 10 Johns. (N. Y). 266. In Adams v. Henderson, 168 U. S. 573, 18 Sup. Ct. 179, 42 L. Ed. 584, in the course of the opinion the court said: "A good and indefeasible title in fee imports such ownership of the land as enables the owner to exercise absolute and exclusive control of it against all others." In City of Leadville v. St. L. S. & R. Co., 29 Colo. the court, in defining the term "fee" at page 50, 67 Pac. 1126, at page, 1128, said: "The definition of the word "fee" in American law, as given by Black's Dictionary, is: 'It is an absolute estate in perpetuity, and the largest possible estate a man can have, being in fact, allodial in its nature;' and this appears to be the generally accepted definition.' Such is the title and ownership which the legislature declares a purchaser from the state shall acquire. The requirement of Sec. 5185 that every purchaser shall receive a patent for the “land purchased" which shall convey to him "a good and sufficient title in fee simple," necessarily carries with it the mandate that the State Board shall so offer and sell the lands of the State. The court cannot limit the language of the statute to find authority for the Board to sell, or require the purchaser to take, a conditional fee in the lands purchased. In construing similar words of a New Jersey statute the appellate court of that state said: "They are senseless unless applied to such an estate as, in a legal sense, is comprehended in the term 'land' whereof the unqualified use and possession are obtained for the legitimate pur And the court further declared that to make them mean anything less would be "legislative and not judicial." U. S. Pipe Line Co., v. Delaware, etc., R. R. Co., 62 N. J. Law, 254, 41 Atl. 759, 42 L. R. A. 572. There is nothing in the statute either directly or indirectly authorizing the Board to encumber lands sold with any easement, exception or reservation. It was held in Burke v. So. Pac. R. R. Co., 234 U. S. 669, 34 Sup. Ct. 907, 58 L. Ed. 1527, that when officials authorized to dispose of lands do so by a patent containing unauthorized reservations or exceptions, that the land passes unaffected by such exception or reservation. While the Board is the creature of the Constitution it can dispose of state lands only under such regulations as may be prescribed by law; and it has and can have no powers or functions other than those bestowed upon it by legislative enactment. As was said in In re Leasing of State Lands, supra: "If * power to lease the State lands in such manner the State [Land] Board has the as will, in its judgment, secure the maximum amount therefor, without regard to the statute, islature to prescribe regulations is not effective then the provision reserving the right to the legfor any purpose." the sale of school lands, contains the followSection 5181, Rev. Stat. 1908, authorizing ing proviso, to comply with the enabling act: "Provided, further, That such lands shall only be sold at public auction, and at not less than three and one-half dollars per acre." If the term "land" in the statute be construed to mean the soil of the earth, and all that is upon or beneath it, then that is what the Board is required to convey, and not merely an interest in it. In Section 5174, Rev. Stat. 1908, it is provided that: "Nothing herein contained shall be construed to interfere with the right of the purchaser of any such lands to the immediate possession thereof, upon the completion of his purchase." It is inconsistent with this provision that the State Board has authority to make reservations under which the purchaser may later be excluded from the use and enjoyment of the land purchased. Where the policy of the law and its command is that a purchaser of public lands shall receive a good and sufficient title in fee simple, surely officers charged with the administration of the law cannot lawfully agree to, or convey, any other title, because the express mandate is an implied prohibition against any other manner of disposition. Nor can a purchaser, by agreement or acquiescence, clothe land officers with such authority, because that which is inhibited by law can never be made lawful by consent of the parties affected. When a patent is issued, it must be deemed the grant of a good and sufficient title in fee simple, and if it contains any reservations or exceptions which are inconsistent with or repugnant to the grant of such an estate, they must be held that reservations or exceptions which are repugnant to the grant are void. 15 Cyc. 675. they enter into any forbidden agreement whereby public land is transferred to one not entitled to it the patent may be annulled at the suit of the government, but they cannot alter the effect which the law gives to a patent while it is outstanding." On this proposition the lower court in that case certified the following question to which is appended the answer of the Court: We conclude, therefore, that where state lands are sold, the Board has no authority to sell less than the whole, and until authority is given it to sell less, like surface rights, or other partial interest, it may not do so. The constitutional provision which establishes the land board also places its control and regulation with the legislative department of government, and the board can act only within the limits and in the manner prescribed by that body. As the law does not vest the land board with authority to make any reservation when it sells State lands, the one attempted in the contract here in-pany, estopped to deny the validity of said clause? volved is a nullity, and without effect for any purpose. "If the mineral exception clause was inserted in the patent with the consent of the defendant, Southern Pacific Railroad Company, and under an understanding and agreement between it and the officers of the Interior Department that said clause should be effective to keep in the United States title to such of the lands described in the patent as were in fact mineral, are the defendants, Southern Pacific Railroad Company and the Kern Trading # Com * "Answer-No; such an agreement is of no greater force as an estoppel than the exception in the patent. The latter being void, the patent passes the title and is not open to collateral attack, or to attack by strangers whose only claim was initiated after the issue of the patent." It seems plain that there can be no estoppel here against plaintiff, as manifestly a party ought not to be estopped to deny the validity of a thing to which it would be unlawful for The reservation itself him to give assent. [3] The testimony shows that when plaintiff bought the land he was aware that the mineral reservation was to be incorporated in his certificate of purchase, that he continued to pay the annual installments of the purchase price after he knew that the Board had granted a mining lease covering his quarter section, and that he himself at one time applied for a similar lease when the first one was cancelled. Defendant, there-being void, under the statutes relating to the fore, invokes the doctrine of estoppel. But sale of State lands, plaintiff is not estopped as the Board lacked the legal capacity to to set up such invalidity. create the easement, it is void (9 R. C. L. 747), and being void, cannot form the basis of an estoppel (16 Cyc. 721). Undoubtedly the plaintiff was mistaken as to his legal rights, but such mistake cannot estop him from asserting them when known. 16 Cyc. 734. An admission as to the legal effect of a contract, or an admission as to the law, does not act as an estoppel. 16 Cyc. 757. This is true also as to an admission of a mixed question of law and fact. Daub v. No. Pac. Ry. (C. C.) 18 Fed. 625. The controlling case upon this branch of the controversy is Burke v. So. Pac. Ry. Co., supra. There, similar mineral reservations in a patent having been declared void, the question of estoppel was raised. In passing upon that contention the court said: Whether any ground exists upon which the State might proceed to rescind the sale and cancel the certificate of purchase is a question not here involved, and therefore not determined. But it is self evident that as long as the State permits the certificate of purchase to stand, retains the money which plaintiff has already paid it, and continues to accept further payments from him, it must be bound by the legal effect of the transaction. Judgment reversed. HILL and SCOTT, JJ., dissent. ALLEN, J., not participating. (62 Colo. 538) FISHER et al. v. PIONEER CONST. CO. (Supreme Court of Colorado. March 5, 1917.) PRESUMPEVIDENCE NOT PRE Where the evidence is not presented, the Supreme Court will assume that it justified the court's finding of fact. "Lastly, it is urged that the railroad company accepted the patent with the mineral land exception therein and also expressly agreed that the latter should be effective as one of the terms of the patent, and so is bound by it, or at least estopped to deny its validity. There are insuperable objections to this contention. The terms of the patent whereby the Government transfers its title to public lands are not open to negotiations or agreement. The patentee has no voice in the matter. It in no wise depends upon his consent or will. We must abide the action of those whose duty and responsibility are fixed by law. Neither can the land officers enter into any agreement upon the subject. They are not principals but agents of the law, Where an irrigation district contracted for and must heed only its will. Deffeback v. enlarging a ditch, headgate, and weir used by Hawke, 115 U. S. 392, 406 [6 Sup. St. 95, 29 another company, it was not a mere improveL. Ed. 423]; Davis v. Wiebbold, 139 U. S. 507, ment of the old ditch, but a new piece of prop527 [11 Sup. Ct. 628, 35 L. Ed. 238]; Shawerty; and hence mechanic's lien would not lie v. Kellogg, 170 U. S. 312, 327, 343 [18 Sup. Ct. against the first ditch, and it was not necessary 632, 42 L. Ed. 1050]. Of course, if for the owner of the first ditch to resist the pro # * ** [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2911-2913, 2916.] 2. MECHANICS' LIENS 180-PROPERTY AFFECTED-ENLARGEMENT OF IRRIGATION DITCH. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ceedings in order to prevent lien from attaching | were taken away by final decision in quo warto his property. ranto proceedings. Where plaintiff in suit to establish a mechanic's lien alleged defendant's existence as a public corporation although knowing of quo warranto proceedings which were then pending against defendant on writ of error, which facts were not disclosed to the court, this was not ground for new trial, where it could have made no difference with the judgment, since defendant was a de facto corporation until the quo warranto suit was finally determined. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 40, 41.] 6. CORPORATIONS 28(2)-CORPORATE FRANCHISE QUO WARRANTO-EXISTENCE OF DE FACTO CORPORATION. Where quo warranto proceedings were pending on writ of error but not yet decided, the defendant, having attempted in good faith to comply with statutory provisions for its creation, continued a de facto corporation until final decision. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 70.] 7. CORPORATIONS 28(1)-DE FACTO-WHAT CONSTITUTES. To constitute a de facto corporation there must be either charter or law authorizing its creation, with an attempt in good faith to comply therewith and also an attempt to exercise corporate powers thereunder. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 26, 70.] 8. MUNICIPAL CORPORATIONS FACTO. 17 DE A de facto municipal corporation may exist, where it has assumed under color of authority for some time the powers of a public corporation, and its powers cannot be questioned by pri vate litigation. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 34-39.] 9. CORPORATIONS ERS OF. 387(2)-DE FACTO-POW A de facto corporation may do every act which it could do if a de jure corporation, and such acts are valid against every one except as against the state on direct proceedings. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1549, 1550.] 10. WATERS AND WATER COURSES 225–DE FACTO IRRIGATION DISTRICT. Where an irrigation district had made an honest effort to comply with statute providing for its creation, its acts as such were valid as a de facto corporation until its corporate powers Upon dissolution of a de facto irrigation district by quo warranto proceedings, its property paid for during its de facto existence does not revert back to the original owner nor create any rights in favor of others not existing during its lifetime. Error to District Court, La Plata County; W. N. Searcy, Judge. Action by Francis J. Fisher and another against the Pioneer Construction Company and others. From the judgment, plaintiffs bring error. Affirmed. John P. Brockway, of Denver, for plaintiffs in error. Mollette & Clements, of Durango, and Sherwin & Hungerford, of Colorado Springs, for defendants in error. HILL, J. The plaintiffs in error secured a personal judgment against the defendant in error the Pioneer Construction Company for $1,579.88, being the balance due for the construction of a diversion weir and headgate They upon the Florida Canal at or near the source of its supply from the Florida river. were denied the right of a mechanic's lien. The contract for this work was between the plaintiff in error McDonald and the defendant in error the Pioneer Construction Company. Fisher is an assignee of McDonald. [1] The alleged errors pertain to the court's refusal to allow plaintiffs in error a mechanic's lien and in denying to them a new trial. The evidence is not before us, for which reason we must assume that it justifies the court's finding of facts. Sheer v. Zollverein M. & L. Co., 48 Colo. 350, 109 Pac. 862; Clipper M. Co. v. Ell M. & L. Co., 29 Colo. 377, 68 Pac. 286, 64 L. R. A. 209, 93 Am. St. Rep. 89; Price v. Kit Carson Co., 22 Colo. App. 315, 124 Pac. 353. The admitted facts in the pleadings and others included in the court's finding disclose that the defendant in error the Florida Canal Company was the owner of the Florida Canal as originally constructed with a capacity of 40 feet, for which it possessed a priority of right; that the Florida Canal Enlargement Company was the owner of an enlargement to this canal, together with a priority used in connection therewith; that, prior to the irrigation season of 1911, these companies owned and used, as a part of said system, a good and sufficient headgate and diversion weir of sufficient capacity, through which they carried their respective waters; that in March, 1910, the defendant in error the Florida Mesa irrigation district was organized under our irrigation district law; that in July, following, it entered into a contract with the Pioneer Construction Company for the construc |