dissenting.
After a careful and thorough examination of the record presented, I am unable to concur in either the conclusion of my learned associates, or in the reasoning upon which that conclusion rests. It is of little moment, so far as the question before us is concerned, what the testimony of any individual witness was before the trial court, since that court, in the exercise of its peculiar province, has found that the weight of the testimony introduced sustained certain conclusions of fact, and, under the well settled doctrine of this court, these findings must be accepted as correct, and are not open for review upon appeal. Warren v. Adams, 19 Colo. 515; Nixon v. Harmon, 17 Colo. 276; Lundy v. Hanson, 16 Colo. 267; Riley v. Riley, 14 Colo. 290; Rico R. & M. Co. v. Musgrave, 14 Colo. 79; Rollins v. Board of Com., 15 Colo. *464103; Aspen Times Pub. Co. v. Russell, 18 Colo. 75; Wallace v. Giltinan, 18 Colo. 473; Castner v. Richardson, 18 Colo. 496.
The sole question, therefore, for our consideration, is whether the facts found by the trial judge are sufficient to entitle the plaintiff to relief in equity, and to a new trial, upon the ground of newly discovered evidence. It is well settled that equity will enjoin a judgment at law when its enforcement is against conscience, and grant a new trial upon newly discovered evidence material to and conclusive upon the merits, which the aggrieved party could not have produced upon the trial at law by the exercise of proper diligence, or of which he could not avail himself by reason of some accident, mistake, or circumstance beyond his control.
Judge Story, in his work on Equity, vol. 2, section 894, states the rule on this subject as follows:
“ Relief will be granted where the defense could not at the time, or under the circumstances, be made available at law, without any laches of the party. Thus, for. instance, if a party should recover a judgment at law for a debt, and the defendant should afterwards find a receipt under the plaintiff’s own hand for the very money in question, the defendant (where there was no laches on his part) would be relieved by a perpetual injunction in equity. So, if a fact material to the merits should be discovered after a trial, which could not, by ordinary diligence, have been ascertained before, the like relief would be granted.”
Among the many authorities that might be cited to the same effect, see: Graham & Waterman on New Trials, vol. 3, 455; High on Injunctions, vol. 1, sec. 112 et seq.; Cox v. Mobile Girard R. Co., 44 Ala. 611; Floyd v. Jayne, 6 Johns. Ch. 479; Carrington v. Holabird, 17 Conn. 530; Baltzell v. Randolph, 9 Fla. 366.
The circumstances under which equity will interpose because of newly discovered evidence are summed up by Black, in his work on Judgments, vol. 1, sec. 386, as follows:
“ (1) The evidence must have been discovered since the *465trial. (2) It must be evidence that could not have been discovered before the trial by the plaintiff or defendant, as the case may be, by the exercise of reasonable diligence. (8) It must be material in its object, and such as ought, on another trial, to produce an opposite result on the merits. (4) It must not be merely cumulative, corroborative or collateral.”
Are these conditions met by the facts found by the court below? The “Snider” monument, as it is termed, is found to be the true government corner as established by the original government survey, and in place as originally located. Plaintiff used reasonable diligence to discover it before the trial at law. Adopting it as the true north corner for sections 31 and 32, a line correctly run therefrom to the south township line between these sections places the caverns in question in section 31. If all these things be true, and we must assume they are, on this appeal, it would seem to admit of but little question that the appellant exercised the requisite diligence, or as to the sufficiency of the newly discovered evidence, if verified to the satisfaction of the jury, to produce a different and decisive result on another trial.
But it is said that if it be conceded that the newly discovered stone is properly authenticated, and admitted to be where it was originally placed by the government surveyor, it appearing that it rvas incorrectly placed, as shown by the field notes of the original survey, that it will be inequitable to give appellant an opportunity to utilize it, even if a true corner, by awarding him another trial.
Suffice it to say, the survey as made and marked upon the ground, whether incorrectly or not, fixed the boundary line between these sections, and it is not the province of the courts to correct government surveys of public land, or establish lines contrary to such surveys, however incorrect they may be.
As was said in Cragin v. Powell, 128 U. S. 691:
“ Whether the official survey * * * is erroneous ® * * is a question which was not within the province of the court *466below, nor is it the province of this court to consider and determine. The mistakes and abases which have crept into the official surveys of the public domain form a fruitful theme of complaint in the political branches of the government. The correction of these mistakes and abuses has not been delegated to the judiciary. * * * That the power to make and correct surveys of the public lands belongs to the political department of the government and that, whilst the lands are subject to the supervision of the general land office, the decisions of that bureau in all such cases, like that of other special tribunals upon matters within their exclusive jurisdiction, are unassailable by the courts, except by a direct proceeding; and that the latter have no concurrent or original power to make similar corrections, if not an elementary principle of our land law, is settled by such a mass of decisions of this court that its mere statement is sufficient. * * *
“The reason of this rule, as stated by Justice Catron in the case of Haydel v. Dufresne, is that ‘ great confusion and litigation would ensue if the judicial tribunals, state and federal, were permitted to interfere and overthrow the public surveys on no other ground than an opinion that they could have the work in the field better done and divisions more equitably made than the department of public lands could do.’ 17 How. 30.”
Lands are granted by the government according' to the official survej'-, and by his patent from the government the appellant acquired title to the land conveyed thereby as described and designated by such survey, and the locus of his land is to be ascertained by reference to it and the original landmarks placed on the ground by the government surveyor. It is equitable that this should be done in this case.
It is undisputed that about June 1, 1881, appellant. discovered the caverns in question and took immediate steps to preempt and acquire title to that portion of section 31 which, according to the government survey, as actually made, included them ; and, whether correct or not, the location of the *467E. £ of the N. E. £, and the N. E. £ of the S. E. | not only must, but in justice ought to be determined by such survey, and not by the survey upon which the lines were established at the last trial, based, as it was, upon the theory that the true corner was lost. The cases are numerous which sustain the proposition that monuments placed upon the ground by the government surveyor control, when a discrepancy éxists between them and the courses and distances as given in the field notes, and I do not find any case in which it is held that the extent of the discrepancy changes this rule. Among them are the following: The Mayor of Liberty v. Burns, 114 Mo. 426; Knight v. Elliott, 57 Mo. 317; Climer v. Wallace, 28 Mo. 556; Bruckner’s Lessee v. Lawrence, 1 Doug. (Mich.) 19; Nesselrode v. Parish, 59 Ia. 570; Johnson v. Preston, 9 Neb. 474; Thompson v. Harris, 58 N. W. Rep. 712; Ogilvie v. Copeland, 33 N. E. Rep. 1085; Beardsley v. Crane, 52 Minn. 537; Hess v. Meyer, 73 Mich. 259; George v. Thomas, 16 Tex. 74; Pollard v. Shively, 5 Colo. 309; Cullacott v. C. G. & S. M. Co., 8 Colo. 179.
Why should the mistake of the government, in disposing of its land upon an incorrect survey, be invoked to destroy the title of a bona fide purchaser in actual possession ? And why is not such a purchaser’s claim to the land entitled to recognition and protection in equity, as well as at law?
It seems to me that the rule invoked by appellees, and announced by the chief justice, that the mistake of the government surveyor should be visited upon the unoffending head of appellant, is somewhat in the nature of a vicarious punishment.
The remaining proposition decisive of this appeal, it being the only one upon which my learned associates agree, is that the abortive attempt and failure of plaintiff to obtain a new trial under chapter 23, precludes him from invoking this equitable relief. It is to be inferred from the citations in support of this conclusion that it is predicated upon the well settled doctrine that equity will not interfere where there is a plain and adequate remedy at law, and that the statutory *468right of a defeated party in an ejectment suit to avail himself of a new trial upon request therefor and the payment of the costs by the first day of the next term, affords an adequate legal remedy, and hence is exclusive, if available under the circumstances. ■ The unsoundness of this reasoning is apparent when we consider the reason upon which equity refuses its aid. It is because a way has been provided to obtain redress at law upon the same grounds that are relied on for its interference, and if such way has been neglected, or the relief has been denied at law upon a fair hearing, it refuses to act.
And I concede that if the plaintiff had an opportunity to apply for a new trial upon the ground of newly discovered evidence, under section 217, chapter 17, of the Code of Civil Procedure, and neglected to do so, he is precluded from seeking relief upon the same ground in a suit in equity; but it is clear and undisputed that he had no such opportunity. When he discovered the corner in June, 1888, the time had passed in which he could present a motion for a new trial on the merits, and the only way he could thereafter obtain a new trial upon the ground of newly discovered evidence, was by the aid of equity. Relief upon this ground could not, in my judgment, be invoked under section 75 of the code.
It is unquestioned that a motion for a new trial upon the ground of newly discovered evidence may be made concurrently with an application to vacate the judgment, upon payment of costs, under chapter 28 ; and, if this be so, it seems to me that it logically and necessarily follows that a suit in equity will also lie for the same purpose concurrently with such application, if the time has elapsed for filing the motion when the evidence is discovered.
“ The statutory remedy by motion, * * * is only available during the term at which the judgment is rendered, and in many cases a denial of the most obvious justice would result from holding this remedy exclusivé. The assistance of equity cannot be invoked so long as the remedy by motion exists; but when the time within which a motion may be *469made lias expired, and no laches or want of diligence is imputable to the party asking relief, there is nothing in reason or propriety preventing the interference of equity.” Bibend v. Kreutz, 20 Cal. 110.
Counsel for appellees does not place much reliance upon the claim that the attempt to obtain a new trial by the payment of costs estops plaintiff from invoking equitable relief, but insists, rather, that the delay in bringing the suit constitutes laches that bar his right to the remedy, and the prosecution of his appeal from the judgment denying him a new trial, under chapter 23, did not excuse him from instituting this action while such appeal was pending. His contention upon this matter cannot be better expressed than in his own language. He says:
“It is said he had a right to prosecute this appeal. We do not question it; but was it a prerequisite to the institution of a suit in equity to.avoid the judgment, the merits of which were not involved in the appeal? We think clearly not. Had the suit then been instituted, we submit it could not have been dismissed on the ground that the plaintiff had a plain, adequate and certain remedy at law by appeal. Surely the district court could not have so held without nullifying its own judgment denying the motion for a new trial. It is a fundamental rule that courts of equity are open to suitors in all cases when the remedy at law is not plain, certain and adequate.”
It is apparent, therefore, that the learned counsel did not regard the application under the statute as exclusive, nor even a justification for delay in bringing the present action, and he presents what I regard as the only debatable question growing out of the pendency of that application, and that is whether the delay in bringing this suit, while it was pending in the court below and on appeal, constitutes laches that should bar the right to maintain it. Appellant brought this action immediately upon the decision of that appeal. The reason of this delay is apparent from the history of the law action as set forth in the complaint. When the second trial *470resulted in an unfavorable verdict and judgment, he attempted to obtain a new trial under the statute. He relied upon a procedure which the court below finds to have been the generally understood practice in the nisi prius courts, and paid the costs, but took no further steps in apt time to have the judgment vacated. At the time appellees took advantage of his ■ default in this regard several • terms of court had elapsed; yet,-believing it necessary to prosecute an appeal .from the judgment, striking the case from the docket and refusing him a new trial, before instituting his suit in equity, he pursued that course.
While he may not avail himself of this mistake of law. to escape the effect of that judgment, it may be taken into consideration as rebutting any intentional or willful delay in seeking his equitable remedy; and although it is true that immediately on discovering the new evidence, or upon the rendition of that judgment, he might have instituted his present action, his failure to do so under the circumstances I do not think in itself constitutes such laches as should bar him from the present remedy, if upon other grounds he is entitled thereto. As was said in this court, in the case of Warren v. Adams, supra: “ Length of time alone is not sufficient to justify the court in refusing equitable relief. The circumstances under which the delay occurred, together with the lapse of time, must be such as to impute negligence to the party who seeks relief.”
Not only lapse of time, but other circumstances, must usually intervene to successfully invoke the doctrine of laches. Every case is governed by its own circumstances, and whether delay is sufficient to effectually bar the remedy is to be resolved in the light of those circumstances. In'the case of Dunne v. Stotesbury, 16 Colo. 89, Justice Elliott, speaking for the court, said:
“ When there has been unreasonable delay in bringing suit, courts of equity sometimes refuse relief, even though the statutory period of limitations has not expired; but this is generally in cases where acquiescence amounts to a tacit rec*471ognition. of the rights of the party in possession, and where the assertion of adverse rights is regarded as not only inconsistent, but unconscionable, or where other equitable considerations equally strong are established.”
In this case the property in question has remained in statu quo. The proceeds derived from the undivided interest that appellees claim in the caverns have been preserved by the appointment of a receiver. The appellant has not slept upon his rights, but has persistently and continually attempted to obtain relief from the judgment.
Nor'can the appellees be prejudiced by loss of witnesses by death or removal from the jurisdiction of the court, since their evidence taken upon the former trials is preserved in the record, and may be resorted to upon another trial. Rico R. & M. Co. v. Musgrave, supra. None of these equitable considerations have intervened, and I can see no reason why the delay in instituting this suit should deprive appellant of relief from a judgment manifestly inequitable, a delay attributed solely tp mistake in regard to an unsettled practice, and one that might easily have been avoided by appellees had they seen fit to waive a technical default and submit to a trial upon the merits.
I am clearly of the opinion that the court below erred in dismissing the complaint, and in not granting a new trial, upon the ground of newly discovered evidence, although correct in its conclusions that the facts were insufficient to overthrow the judgment on the ground of fraud, and that the judgment should be reversed.