OPINION- OP TH® COURT.
WRIGHT, J.(After stating the facts as above). Appellant assigns 217 grounds of error, but, as is usually the case where assignments are so numerous, a large majority of same are merely variations of the same general 'proposition.
1 Under the oral argument of this case counsel confined themselves to a discussion of the assignments considered in the briefs filed herein. It will not be necessary, therefore,' for us to notice in detail any of the assignments of error not so considered by counsel, as, -under the well-established practice of this court, assignments of error not considered in the briefs or upon oral argument will be deemed to have been abandoned. Gregory v. Cassan, 15 N. M. 496.
2 Upon a former appeal of this case—A. & C. R. R. Co. v. D. & R. G. R. R. Co., 13 N. M. 357—this court, spealdng through Mr. Justice Abbott, held that the facts well pleaded established a vested interest in the plaintiff sufficient to enable it to invoke the jurisdiction of a court of equity. This question having been disposed of upon the former appeal became and is the settled law of the case. Dye v. Crary, 13 N. M. 439. The cause is now before us upon the merits under the pleadings so determined to be sufficient upon the former appeal. With one exception, which will be considered separately, the appellant admits that the facts found by the court are sufficient to sustain the decree.
The first proposition advanced by the appellant is that appellee was newer in possession of Us alleged right-of-way and had nothing, for the protection of which this suit could be brought. Counsel for the appellant contend that this court upon the former appeal declared, as the law of this case, that it was necessary for the appellee to prove actual physical possession of Hie right-of-way in controversy, at the time of the alleged unlawful intrusion by the appellant, in order to support its action in a court of equity.
3 A careful reading of the opinion fails to disclose any such holding. IJpon the former appeal the question was upon the sufficiency of the complaint. In its complaint appellee alleged that it was the owner of the location surveyed and staked out by it upon the ground and in possession thereof, and that such possession had been interfered with by wrongful acts on the part of the appellant and was jeopardized by the threatened continuance thereof. In passing upon the sufficiency, of such allegations, the court says: “The defendant further urges that the title to the portions of the plaintiff’s alleged location now in question is by the complaint shown to be in dispute beween the plaintiff and defendant, and that the former must therefore establish its title át law, before it can have the aid of a court of equity to protect it. We do not so interpret the complaint. We understand it to charge that the defendant having actual notice and knowledge of the plaintiff’s interest and rights in the premises, is, unlawfully and without 'any claim of right, seeking to deprive it of them by a series of wrongful acts already begun and threatened to be continued up to the point of the complete ouster, and dispossession of the plaintiff.” In the case of Sioux City & D. M. Ry. Co. v. Chicago M. & St. P. Ry. Co., 27 Fed. 770, a case practically on “all fours” with the case at bar, Judge Shiras said: “There is but one controversy in the cause, and that is: Which company has the prior, and therefore better right to the occupancy of the premises in dispute, for the purpose of constructing and operating its line of railway. It is certainly equitable that a company, which in good faith surveys and locates a line of railroad and pays the expense thereof,, should have a prior claim for the right-of-way for at least a reasonable length of time. The company does not uerfecc its right to the use of the land, as against the owner thereof, until it has paid the damages, but, as agamst a railroad company, it may have a prior and better equity.” See, also, Ry. Co. v. Alling, 99 U. S. 463. It appears, therefore, that proof of a prior and better right to the occupancy of the right-of-way in dispute is sufficient to make this action cognizable in equity. Did the appellee have such prior, and therefore better, right to the occupancy or possession of the right-of-way in dispute? in other words, did the appellee have a valid prior location of the right-of-way in question?
4 5 It is admitted by all parties that to constitute a valid location of a proposed railroad, within this jurisdiction, there must be: 1st. A survey'and actual staking of the proposed line upon the ground. -2nd. The adoption of such survey by the Board of Directors as its permanent line or right-of-way. The evidence establishes, beyond any question, that the sim^s were actually made, and the proposed line of railroad .staked and marked upon the ground. The appellant contends, however, that the surveys, so made, were never adopted by the board of directors of the Arizona and Colorado Bail-road Company of New Mexico, as required by law, and that therefore the appellee never had any title to or rights in its alleged right-of-way which the appellant was bound lo respect. Upon this question the court below made the following finding of fact: “3rd. That immediately upon its organization as aforesaid the plaintiff company proceeded with the survey and location of a line of railroad down the said Animas Yalley between the said points, and laved out, located and marked upon the ground by stakes set in the ground a line of railroad between the said points, to-wit, between the boundary line of the State of Colorado and the Territory of Now Mexico, and the town of Farmington, in said Territory of New Mexico, and prior to the 1st day of January,'1905, adopted the said line so sunm-ed, located and marked upon the ground, as the line of the definite location of its railroad between said last mentioned points.”
The printed record in this case is very vokiminous, containing twenty-five hundred pages, and as we deem this the question upon which this case must turn for affirmance or reversal, it is necessary, at this point, to state briefly the testimony bearing thereon. The plaintiff in the lower court, in support of its allegations, offered in evidence the records of the meetings of its Board of Directors, showing the adoption by resolution of various portions of its surveyed lines in San Juan County. It also placed upon the witness stand a witness, McFarland, the engineer in charge of its survey parties and who actually surveyed and staked out the right-of-way in question. The witness McFarland testified, without objection, that certain maps covering a surveyed line from the Colorado state line south along the valley of the Animas River to and through the town of Farmington, represented the right-of-way in question as surveyed and adopted by its board of directors. It was also in evidence that there were numerous surveys made at about this time in San Juan County, by the appellee, for the purpose of determining the best possible line between Durango, in the State of Colorado, and Farmington, New Mexico, and from thence south to the Arizona line, connecting with the lines of the appellee in Arizona. In at least two of these surveys, the engineer’s station numbers began at zero in Colorado, running thence south, with consecutive numbers. It also appears that there were other engineer’s station numbers commencing at “0” and running in consecutive order, from the south toward the town of Farmington. An examination of the resolutions from the minutes of the Board of Directors, introduced in evidence, discloses that the surveys were not adopted as a permanent line, as a whole, but that there were various resolutions covering- different portions of the surveyed lines. In none of the resolutions does there appear any direct reference to anjr particular engineer’s map.- The entire distance from the Colorado state line south along the Animas River to and through the town of Farmington, being the right-of-way in dispute, is about twenty-eight miles. No ‘question is raised as to the adoption by the plaintiff company of the first fifteen odd miles from the stale line of Colorado south, to and through the town of Aztec. This eliminates from the discussion two of the points of conflict, described and referred to in the testimony as the “Whitney and McEwen Crossings.”
Taking the various resolutions offered in evidence, together with the maps, also in evidence, we find, using the engineer’s station numbers as guides,, that these numbers might bo applied to different locations and are not absolutely limited to that portion of 'the survey between the towns of Aztec and Farmington, in dispute of this suit. Mr. McFarland, however, testified referring to the maps (mentioned above), that such maps indicated and described the right-of-way as surveyed and adopted. The witness McConnell also identified.the lines described by McFarland as the survey adopted by the plaintiff company. Mr. McConnell also testified that after the line was adopted, he was employed to secure rights-of-way, and was furnished with maj)s and profiles showing the adopted, line; such line being the same line testified to by the witness McFarland. All of these things occurred prior to the time that the defendant company took possession of any of those portions of the right-of-way in dispute in this suit. Counsel for the appellant argues that there is no resolution showing the adoption of that portion of the survey beween the towns of Aztec and Farmington, described as the “Devised Survey,” and that the appellee, in offering the testimony of the witnesses McFarland and McConnell, was attempting to prove, by oral testimony, acts of the Board of Directors, which, by law are required to be kept in writing and as' part of the records of the corporation. Counsel for appellant and counsel for appellee entered into a lengthy discussion of this question. Counsel for appellee cites the case of TJ. S. Bank v. Dandridge,, 12 Wheat. 64. Counsel for appellant cites numerous cases, contending that where the statute requires the keeping of written records of directors’ proceedings, (as is the case in New Mexico,- Sec. '2832, C. L. of 1897), oral evidence of corporate acts not so recorded is admissiblengainst the corporation, but ought not to be admitted" on behalf of the corporation against the interests of others. While a consideration of this question might be very in-i cresting, we do not iincl it necessary to a determination of the' issues of this case to' determine whether the evidence offered by appellee was an effort to establish corporate acts by parple or not, nor do we think it necessary to determine whether the resolutions of adoption offered in evidence by the appellee, as a matter of fact, do include all of lha Una so surveyed, located and marked upon the ground between the state line of Colorado and the town of Farmington.
From a careful examination of the testimony it appears conclusively that the resolutions of the board of directors show the adoption of all of the right-of-way except, possibly, that portion near the town of Aztec, referred to in the evidence and briefs as the “Revised Survey.” • This portion of the right-of-way includes “Young’s Crossing,” one of the disputed tracts, and the cue of which appellant particularly complains as never-having been adopted bji- the appellee as a part of. its permanent right-of-way. It further appears, from the testimony and the findings, as to this particular tract, that the appellee ivas the owner of the same, by direct purchase, prior to the institution of this suit, and prior to any trespass thereon by the appellant. No legal steps whatever were taken hj the appellant to gain possession of this particular tract until after the institution of the case at bar, and it further affirmatively appears from the testimony and findings, that, at the time of the threatened trespass, the appellant company had not complied with any of the requirements of’the territorial statutes as to the adoption of Us Una. The appellee was the actual owner of the land known as “Young’s Crossing,” and until the appellant' had paid for, or condemned the same appellant had no rights therein whatever, and the appellee could protect its rights to the same regardless of whether this particular piece of right-of-way had been actually adopted as a permanent location by specific resolution,. or not. The appellant, having no rights in that portion oi‘ the right-of-way known as “Young’s Crossing,” it becomes wholly immaterial,, for the purpose of this discussion, to determine whether the court’s finding of fact that, “prior to the first day of Janua^, 1905, (the appellee) adopted the said line so surveyed, located and marked upon the ground as the line of the definite location of its railroad between, said last- mentioned points.” Finding of Fact No. 3, quoted supra, is supported by the testimony in so far as it refers to “Young’s Crossing.”
The next proposition urged by afppellant is, that the appellee’s line, as located, is not the best obtainable line. Joined with this proposition is the contention that appellee at small expense can get a better line than the -one claimed in- this action, and that by reason of such facts appellee ought not to maintain this action in equity, having a complete remedy at law in damages. A great mass of testimony was introduced hearing upon these questions. Witnesses for the appellee testified that the line, as surveyed and adopted by appellee, in view of all the surrounding circumstances and conditions, was a practical line, and the best that could be obtained. Witnesses for the appellant testified to the contrary. Upon such conflicting testimony the court made definite and specific findings of fact in favor of the appellee. Under such f state of the record,, this court will not inquire further.
Appellant further contends that appellee should not succeed for the reason.that it is apparent from the testimony that interference by the appellant with the line claimed by appellee could not be avoided; also, that the allegations of good faith and ability on the part of the appellee to construct, a railroad upon the right-of-way claimed are not sustained by the testimony, and,- again, that the appellee ought not to succeed because appellee was guilty of laches. With reference to each of such contentions, the court specifically found against the appellant, and with reference to the interference with the right-of-way of the appellee the court specifically found that such interference by the appellant was willful and deliberate. A sufficient answer is that each finding is based upon ample evidence to sustain the same.
Appellant also contends, even admitting that appellee had some rights to the right-of-way claimed, that appellant had no notice of appellee’s claim, either actual or constructive. It appears from the brief of counsel for appellant that appellant’s main contention as to the lack of notice is based upon tire fact that the trial court admitted certain notices and options which were recorded in the office of the probate clerk of San Juan county, which said notices, and options were not acknowledged in form to be entitled to record, and hence had no evidentiary value as records. . Eliminating entirely from the evidence all such disputed evidence, an examination of the record discloses that there was ample evidence of actual notice to warrant the trial court in making the finding that the appellant had actual knowledge. It follows that the question of constructive notice is therefore immaterial.
The final contention advanced by appellant is that an examination of the record will show that the rulings by the court below upon evidence were such as to require the reversal of the judgment.
7 At the outset, counsel concedes as a general proposition in this jurisdiction that erroneous rulings of a court as to the admissibility of evidence in a case tried by the court without a jury are not necessarily sufficient to call for a vacation of the judgment of the court below — citing Lynch v. Grayson, 5 N. M. 488, 25 Pac. 992. Counsel contend, however, that such rulings, when properly objected to and embodied in an assignment of errors, may be considered by the appellate court as indicating the condition of the judicial mind as to the case, and counsel insist that the rulings in this case indicate such a state of mind upon the part of the trial court as to impair confidence in the soundness of the conclusions reached by the court.
We have examined the record and the rulings of the court upon the objections to the referee’s report; and, while we may not agree with the trial judge as to all of the rulings so made, yet we find substantial, competent evidence to sustain each and every one of the findings made by the trial judge, and nothing in the rulings of the trial judge which indicates in the least degree that the trial judge was not absolutely fair and impartial in all of his rulings.
There being no error in the record, the judgment of the lower court is affirmed.