delivered the opinion of the court:
The law applicable to this case is well settled, and the only question for our consideration is, whether the évidence of the defendant, when given its full weight and purport, is sufficient to sustain the judgment. The perpetual right of way, which the defendant claims he acquired from plaintiff, constitutes an easement or interest in land. The oral agreement upon which he relies is within the statute of frauds, and under the well settled rule, in order to take such agreement .out of the statute of frauds, it is incumbent upon him to support the same by clear, definite and conclusive proof. — Fetta v. Vandevier, 3 Colo. App. 419, affirmed in: Vandevier v. Fetta, 20 Colo. 368; Whitsett v. Kershow, 4 Colo. 419.
The evidence on the part of the defendant does not, in our opinion, meet the requirements of this rule. It consists of a conversation testified to by the representative and agent of defendant. This conversation is, in itself, general and indefinite as to the terms of the agreement, and is positively denied by *174the plaintiff. Nor does it satisfactorily appear that the defendant acted upon the alleged agreement in running the tunnel, but rather upon his supposed right to use it to transport the output from the Joe Reynolds mine by virtue of his undivided interest therein. He was so advised by counsel, and, in answer to plaintiff’s demand for compensation, defendant’s attorneys did not claim the right to the use of the tunnel by virtue of any agreement, but gave as the reason why she was not entitled to compensation for such use “that the parties were tenants in common in the tunnel.” That they were mistaken in assuming that defendant’s relationship to the property gave him the right to use the common tunnel to convey ore from an outside claim, is settled in People ex rel. v. District Court, 27 Colo. 465. Yet defendant twice asserted such right, and did not claim the right to use the tunnel by virtue of an agreement with plaintiff until it appeared in his amended answer.
It must be assumed that the court below, by rendering judgment for defendant, found the issue as to the agreement in his favor, and while-, under the doctrine frequently announced in this court, we are precluded from disturbing such finding unless clearly against the weight of the testimony, we feel compelled to reverse the judgment, not alone because of the conflict in the testimony, but because of the lack of the character and degree of proof required in such cases.
Judgment reversed, and cause remanded.
Reversed.
Chief Justice G-abbert and Mr. Justice. Bailey concur.