on that day defendant wrongfully and forcibly entered upon said property without his consent or permission; and rendered judgment for possession and damages. From this judgment the defendant prosecutes this appeal. F. J. Mott, for appellant. H. N. Haynes, for appellee. GODDARD, J. (after stating the facts). The appellee contends that the district court was without jurisdiction to entertain this action, because the claims of the respective parties to the land in question were pending on a contest in the land office. It will be conceded that the courts are without jurisdiction to determine the right of contending parties to purchase public land while a controversy is being waged before the proper officers of the interior department to settle such right, and will refuse to aid either party, by way of affirmative relief. until such controversy is finally determined by that department. But their jurisdiction to prevent the wrongful invasion of the possession of one in the actual occupancy of the public domain, so long as the title remains in the government, is not only expressly conferred by our statute, but is essential to the maintenance of the peace and order of the community. In the exercise of this jurisdiction, the courts do not attempt to pass upon the merits of the respective claims of the contending parties, and decide which has successfully initiated and established his right to ultimately receive the legal title to the land, but only protect the actual possession, and prevent the wrongful and forcible interference therewith, until the government parts with its title. Eliminating from the pleadings all averments relating to the claims upon which the plaintiff and defendant found their right to purchase the land from the government, as pre-emption or homestead claimants, there remains the statement of a cause of action which the court below clearly had the jurisdiction to hear and determine. It is averred that plaintiff and his grantors had been in the actual and undisturbed possession of the land in question for three years prior to the 15th day of August, 1889, and had inclosed the same with a good and substantial fence, and raised crops thereon, during this time; that on the 15th day of August, 1889, and while plaintiff was so in the sole, exclusive, peaceful possession, defendant wrongfully and forcibly cut the fence, and entered upon the land, without his consent or permission, and by virtue of said wrongful entry remains in possession of the major part of the premises. The court below found that the testimony sustained these allegations. hold that the party whose possession is thus invaded is remediless pending a protracted controversy before the officers of the land department, and until they shall have de To termined that he has the right to purchase the land and receive the title from the government, is to "bring chaos instead of social order; to make the court a useless formality, and the law an object of contempt." With this view, it becomes unnecessary, to consider whether, under the circumstances alleged in his answer, the defendant initiated a valid homestead right by his filing in the land office, since, if valid, it would not, under the circumstances, justify forcible entry upon the possession of plaintiff. It follows that the judgment of the court below must be affirmed. Affirmed. (20 Colo. 448) SNIDER v. RINEHART et al.1 (Supreme Court of Colorado. Jan. 7, 1895.) JUDGMENT IN EJECTMENT - VACATING - FAILURE TO DEMAND NEW TRIAL NEWLY-DISCOVERED EVIDENCE-PRACTICE-CUSTOM-EQUITABLE RE LIEF-PROOF. 1. A judgment in ejectment will not be set aside in equity, on the ground of newly-discovered evidence, where such evidence was known to the defeated party before the time had expired within which he was entitled to demand a new trial under the statute. Goddard, J., dissenting. 2. It is no excuse for failure to demand a new trial in ejectment that the defeated party thought that, by paying the costs of the first trial, he was entitled to a new trial without making any demand therefor, though it was generally understood among lawyers that the payment of costs entitled a party to a new trial, and such practice was quite generally adopted by the courts. 3. Where a lost corner of a section has been established in ejectment, the judgment will not be set aside, in equity, on the ground of newly-discovered evidence, where the object of the new evidence is to establish the section corner by a monument at a place other than that called for by the field notes, the effect of which would be to set aside lines established in the former trial, and substitute therefor lines run in direct violation of United States statutes. Goddard, J., dissenting. Appeal from district court, El Paso county. Action by George W. Snider against Charles Rinehart and Emma R. Austin. From a judgment for defendants, plaintiff appeals. Affirmed. George W. Snider, appellant, instituted this suit in the district court of El Paso county on January 5, 1893, against Charles Rinehart and Emma R. Austin, as the heirs of Rose Rinehart, deceased, to enjoin the enforcement of a judgment at law theretofore and on the 12th day of April, 1888, rendered against appellant in favor of said Rose. The complaint is very voluminous, and, among other things, sets forth the history of the action at law in which the judgment was rendered, and is, in brief, as follows: The complaint filed in that action on or about the 1st day of October, 1886, contained two causes of action. The first, and the only one necessary to be noticed upon this review, averred that she (Rose Rinehart) was the owner in fee and possessed of an undivided 1 Rehearing denied, March 4, 1895. one-half of the S. W. 4 of section 32, township 13 S., of range 67 W., as tenant in common with the appellant, Snider, who was the owner of the other half; that he had ousted her from, and unlawfully withheld the possession of, that part of the premises known as the "Manitou Grand Caverns." The appellant, Snider, admitted plaintiff's title to an undivided one-half of the S. W. 1/4 of section 32, township 13 S., of range 67 W., but denied that the Grand Caverns were situate thereon, and alleged that they were situate in the N. E. 14 of the S. E. 4 of section 31, township 13 S., of range 67 W., of which he was the sole and absolute owner in fee. On the 30th day of November, 1887, the case was tried to a jury, and the sole issue submitted was whether the Grand Caverns were located on section 31 or 32, and the jury found that they were upon section 31. The costs were paid, and a new trial was taken under the statute. On the 12th day of April, 1888, the case was tried again to a jury, upon the same issue, and they found that the Grand Caverns were situate upon and within the limits of section 32; whereupon judgment was rendered in favor of plaintiff in that action, that she have and recover an undivided one-half of the cave in question, and that writ of possession issue placing her in possession. The defendant, Snider, paid the costs, and the case was by the clerk reinstated on the docket, and remained thereon from term to term, until at a special and adjourned term on June 10, 1889, when a motion to vacate the judgment was denied, the case stricken from the docket, and a writ of possession ordered to issue to put plaintiff in possession. From this judgment the defendant prayed an appeal to the supreme court, which was granted; and thereafter, and at the September term, 1892, the judgment of the court below was affirmed. Snider v. Rinehart, 18 Colo. 18, 31 Pac. 716. Upon the last trial of the cause, the monument or stone marking the north corner of sections 31 and 32 not having been found, it was assumed to be a lost corner, and, there being a shortage or deficiency on the north line of the two sections, the shortage was apportioned, and the corner established, and by such apportionment the caverns in question were shown to be in section 32, and the jury so found. But shortly after this trial, and some time during the month of June, 1888, plaintiff alleges that he by accident discovered the stone marking such corner, in position, where it was placed by the government surveyor at the time of making the original survey, in 1871; and avers that the country around and about said section corner is wild, broken, and mountainous, and very precipitous, the surface of the ground being covered with or made up of broken fragments of stone and rock slag, and that all efforts theretofore made to find the corner were unavailing; and that he had, by the exercise of diligence, been unable to dis cover its whereabouts in time to produce evidence of its location at the former trial; that by means of such corner the true boundary between sections 31 and 32, as established and subdivided by the United States government survey, could be readily determined; and that such boundary line shows each and every part of the caverns in question to be entirely and wholly within the boundaries of section 31. While the complaint contains allegations of fraudulent conduct on the part of Rose Rinehart and her representatives, in removing interior corners, no evidence was introduced to sustain such allegations. The appellees, by their answer, deny the material averments of plaintiff's complaint, the validity of this corner, and the manner of its discovery, and the exercise of such diligence on the part of plaintiff as will entitle him to the relief sought. Upon the trial of the cause a large number of witnesses testified, and upon the testimony introduced the court below made the following findings: "(1) That what is termed in the evidence the 'Snider Monument' is the true government corner, as established by the original government survey, and is in the place where it was originally located. This fact is established by a clear preponderance of the testimony, although I cannot say it has been established beyond all doubt. (2) That the plaintiff used reasonable diligence to discover the said monument, and failed to do so, before the trial at law between plaintiff (then defendant) and Rose Rinehart (plaintiff) on April 12, 1888. (3) That under the practice of Colorado it was generally understood, during the years 1888 and 1889, that in an ejectment action, after the first unfavorable verdict, the unsuccessful party could obtain a new trial by simply paying the costs before the next succeeding term of the court, and that this practice was quite generally adopted by the courts and by the bar of the state. (4) By adopting the Snider monument as the true corner for sections 29, 30, 31, and 32, and from that corner drawing the line between sections 31 and 32 to the township line on the south, it is found that the caverns in controversy in this suit will be in section 31. It may be proper to add that there is no proof whatever to show any fraudulent act by any party in the action at law, nor is there any showing that the trial was not fair and impartial. I am constrained to deny to the plaintiff the relief he seeks in this action, for the reason, briefly stated, that I do not think the facts meet the requirements demanded by equity, when it is sought to overthrow a judgment that is impeached for fraud." Thomas, Hartzell, Bryant & Lee and M. F. Taylor, for appellant. Biddell, Starkweather & Dixon, amici curiae. Wells, McNeal & Taylor, for appellees. HAYT, C. J. (after staung the facts). This is a suit in equity to set aside a judgment at law. The properties involved are the Grand Caverns, situate near Manitou, El Paso county, Colo. The suit at law was commenced on the 1st day of October, 1886. In that action the principal, if not the sole, question involved was whether the Grand Caverns are in section 31 or section 32 of township 13 S., of range 67 W. Two trials were had in the original suit,-the first in November, 1887, resulting in a verdict and judgment to the effect that the Grand Caverns were in section 31; the second trial occurred in the following month of April, and resulted in a verdict and judgment awarding the Grand Caverns to section 32. After the second trial the defendants paid the costs, but made no effort, by motion or otherwise, to obtain a new trial until more than one year had elapsed, viz. at the June term, 1889, at which time a motion to vacate the judgment was denied, and the case stricken from the docket. From this judg ment an appeal was taken to this court, and the judgment affirmed at the September term, 1892. 31 Pac. 716. The present action was not commenced until after the latter judgment was rendered. The controversy for the possession of these caverns had been pending in the courts for six years before the present action was commenced. Since the institution of the first suit two of the defendants have died. I think it is apparent, from the foregoing statement, that the judgment at law should not be opened in this proceeding, except for the most cogent reasons. Relief was denied in the district court for the reason that the judgment at law was sought to be impeached for fraud, and the court found that there was no proof whatever of such fraud, nor any showing that the trial at law was not fair and impartial. It is not now contended that there was any fraud practiced in either of the trials at law, the effort here to open the judgment being based entirely upon newly-discovered evidence that could not, as it is claimed, have been made available in the previous trials at law. But the fact that the district judge conceived that the sole matter involved was a question of fraud in fact in the trial at law should not be a matter of surprise, in view of the pleading; it being charged in the complaint, on information and belief, that the Rineharts had fraudulently procured the removal of the government corners for the purpose of making it impossible to ascertain the boundary line between sections 31 and 32. As the record before us is entirely free from evidence showing, or tending to show, fraud in fact, we may dismiss this allegation of the complaint without further notice. Is the plaintiff, Snider, entitled to have the judg ment at law set aside and a new trial awarded in the action at law by reason of newly-discovered evidence? The new evidence upon which plaintiff predicates this suit relates solely to the location of the gov ernment corner on the north between sec tions 31 and 32, this being one of the questions at issue between the parties in the two trials at law. The evidence taken in the present proceeding shows that the corner claimed as a government corner is marked by a stone in size about 9 inches by 11 inches by 16 inches, weighing about 100 pounds, protruding from the ground about 9 inches, and marked by a monument of smaller stones, located near a pinon tree, the tree being marked by hav ing the limbs cut off from one side, as is usual with surveyors in running a line Charles E. Liebold, a witness for the plaintiff, testified that he resided at East Manitou, and had lived there 14 years. That he had taken up a piece of land near the head of Williams' cañon, and that to inclose this land he had built a fence across the cañon at the time. "It was on the line between me and Snider,-on my south line. I had a survey before the fence was built. I don't remember exactly when it was built, but I think between 1884 and 1885. Have been on the ground recently. Was there last winter and yesterday." In answer to further interrogatories, the witness testified with reference to the existence of the corner in controversy: "There was a monument there,—a pile of rock; what was shown to me as the corner, and what I supposed was the corner between me and Snider. * I was on the ground yesterday to refresh my memory, and I found a large stone there. The earth was dug up around it, and it was pretty close to what I have always supposed was that corner. It looked as though it had been tampered with or moved recently." On cross-examination, the witness further testified: "The fence in that cañon is very nearly on a line. I tried to get it as nearly on a line as I could. I do not remember when the survey was made, but I think between 1881 and 1884, and I always understood this was my southeast corner. *** I can go right to it. ***" By further testimony the witness shows that the southeast corner, identified by him as a common corner with Snider, is the corner claimed by plaintiff to have been recently discovered, and to establish which a new trial is asked; although this witness, further testifying, says "that he and [appellant] Charles Snider had talked together about the corner frequently in 1884 and 1885, and that he could go right to it." E. H. Kellogg, another witness introduced by the plaintiff, testified that he was a civil engineer and surveyor, and had been a resident of the state since 1868; that he was the government surveyor under whose direction the original survey of the township containing the Grand Caverns was made. The witness further testified that the survey was made in 1871; that the plat and field notes were filed in the surveyor general's office. The witness also testified that with these notes he located the corner in 1893, although the tree had been cut down, but not removed, and the pile of stones had been scattered about. This witness was not subpoenaed at either of the previous trials, and did not then testify. F. E. Baxter, another witness for the plaintiff, testified that he saw this corner shortly after it was claimed to have been rediscovered, and that he saw near one of the corners a pole lying on the ground, which he though might have been used as a site pole for a survey; that the pole bore evidence of having been there for a number of years; that, if he had seen this pole without knowing the location of the corner, the pole would have suggested a close search in the immediate vicinity for the corner. The only evidence tending to show diligence in searching for the corner, on the part of the plaintiff, is negative in character, and to the effect that others had repeatedly searched without success. Common prudence should have suggested to the plaintiff, at least after one trial had been had, that inquiry should have been made of Kellogg, who had charge of the official survey, and of Liebold, the owner of an adjoining quarter section, and the former should have been engaged to rerun the lines, if necessary to locate the corner. Holmes v. Stateler, 57 Ill. 209. In the absence of such showing, if the trial court had dismissed the bill for want of diligence on the part of plaintiff in his efforts to ascertain this corner, the judgment would not be disturbed; but that court having expressly found that the plaintiff did use due diligence, and there being evidence to support this finding, perhaps it should not be disturbed in this court. The finding, however, with reference to diligence is expressly limited to what was done before the trial at law on April 12, 1888, and we may therefore consider, without embarrassment by any findings made by the trial judge, what transpired after the last trial, and at a time when a remedy was yet available in the action at law. Plaintiff and other witnesses testify that he found the original government corner in controversy, the same being the corner on the north between sections 31 and 32, in the month of June succeeding the trial at law at the April term. In an action of ejectment, the statute provides that the unsuccessful party may have a new trial upon application therefor, upon the payment of costs at any time before the next term of court. The next succeeding term began in the month of November, 1888. It will thus be seen that the defendant, the complainant here, had several months in which he might have obtained a new trial in the action at law by simply presenting a request therefor, as he did in fact pay the costs. Notwithstanding this remedy was open to him, he made no application for relief in the action at law before the next term of court, or for a long time thereafter. This delay was fatal. To ob tain a new trial in equity on the ground of newly-discovered evidence, the complainant must show that the evidence was not discovered in time to be used in the legal proceeding. If discovered in time to have been presented upon a motion for a new trial in the legal action, relief will be denied in equity. 1 High, Inj. § 116; Ferrell v. Allen, 5 W. Va. 43; 3 Pom. Eq. Jur. § 1365; Long v. Smith, 39 Tex. 161. It is said that a motion for a new trial in an action at law and a bill for relief in equity are concurrent remedies, and in support of this proposition our attention is directed to the following cases: Wright v. Hake, 38 Mich. 525; Metcalf v. Williams, 104 U. S. 93; Belmont v. Railway Co., 52 Barb. 637; Young v. Sigler, 48 Fed. 182. In the first case cited it was urged that complainants lost their remedy in equity by moving for a third trial in the law action, and the court said: "There is nothing to this. It was very proper for them to get rid of the judgment in that court if they could, on any ground that was open to them." The court might have very properly added that it was necessary to do so to give them a standing in equity. The case of Metcalf v. Williams, supra, does not support appellant's contention, as it is shown by the opinion that the complainant had appeared in the case at law, and entered his plea of nil debet, but that judgment was afterwards entered without his knowledge or that of his counsel, as though no plea had been filed. Being taken by surprise, counsel moved the court to reinstate the cause upon the docket, but the judge doubting his authority to do so refused the motion. The complainant had done everything within his power to obtain relief in the law action, and the supreme court of the United States, sustaining a bill in equity to set aside the judgment, said: "Had not the term passed by, the district judge would undoubtedly have set aside the judgment, and reinstated the cause on the docket for trial. If, as he supposed, the passage of the term deprived him of power to do this, it became a proper case for equitable interference by bill." The court in the course of its opinion takes occasion to say that the firmly-settled practice under which courts of law entertain motions for a new trial, coupled with the dislike of one court unnecessarily to interfere with proceedings in another, has caused the almost total disuse of that jurisdiction. the case of Belmont v. Railway Co., supra, it is held that whatever can be done by motion to the court might, upon further motion by either party, be altered, modified, or wholly undone. There is nothing in the case that has any bearing upon the question we are considering. The case of Young v. Sigler, supra, was a proceeding in equity to set aside a judgment at law. The cause was heard upon demurrer to the bill. In the bill it is alleged that the judgment was obtained by the fraud of plaintiffs, and that, although moving to that end, defendants were unable to obtain a new In trial, and are without remedy, according to the rules and practice of the court at law in which the judgment was rendered. The case was commenced in the year 1886, and a trial had in October of that year. It is further alleged that the complainant did not obtain knowledge of the fraud practiced upon him until in November, 1890. I think it is apparent from the opinion which was rendered by Shiras, J., at nisi prius, that the fraud of which complainant complained did not come to his knowledge in time to be made available by motion for a new trial in the original action. I find nothing in these cases necessarily at variance with the firmly established doctrine that equity will not interfere with judgments at law, where an adequate remedy is provided in the law action, which has been lost to the aggrieved party as the result of his own negligence. If there is an exception to this general rule, such exception is confined to cases where the judgment is taken by fraud. Mr. Pomeroy, in his work on Equity Jurisprudence (volume 3, p. 402, note 2), says: "The modern cases, where such judgments at law have been enjoined, will be found, on examination, to have arisen under the more general power, which equity clearly possesses, of setting aside the most solemn proceedings when tainted by fraud. The equitable jurisdiction to entertain bills for a new trial, if it exist at all, must be confined to a very few states." As the plaintiff in this case, at the time of the discovery, had a remedy in the legal action, which he negligently failed to take advantage of, I am of the opinion that equity cannot grant relief. It is argued, however, that plaintiff was prevented from taking advantage of his remedy in the law action by reason of a misunderstanding of the statute relating thereto; and the trial judge finds that, under the practice of Colorado, it was generally understood, during the years 1888 and 1889, that in an ejectment action, after the first unfavorable verdict, the unsuccessful party could obtain a new trial by simply paying the costs before the succeeding term of the court, and that this practice was quite generally adopted by the courts and by the bar of the state. Perhaps we should accept this finding as conclusive upon this review of the general understanding of the practice, although in all the years that the judges of this court have presided at nisi prius, and upon appellate tribunals, not one had ever heard of such a practice prior to this case. But, assuming that such was the practice, it is not sanctioned by the statute, but is in direct violation thereof. The mistake in this matter was one of law, from which the plaintiff cannot obtain relief in equity. Judgments at law would be entitled to slight consideration if they were subject to be set aside in equity for the reason here invoked. Not only did plaintiff fail to move for a new trial in the law action, but he waited until nearly four years had elapsed after the rendition of judgment before instituting this proceeding. In this connection the language of this court upon the former appeal in this case is strongly in point, viz.: "It is also a general principle that a defeated party, desiring a new trial, must be diligent in making application for it. Negligence or undue delay may defeat an application otherwise meritorious. It is the policy of the law to secure to parties litigant the termination of their legal controversies." Snider v. Rinehart, 18 Colo. 18, 31 Pac. 716. In Hunt v. Boyier, 1 J. J. Marsh. 484, it is said: "Vigilantibus non dormientibus, servat lex,' applies more emphatically to motions or bills for new trials than to any other class of cases." See, also, Faulkner's Adm'x v. Harwood, 6 Rand. (Va.) 125; Embry v. Palmer, 107 U. S. 3, 2 Sup. Ct. 25; Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, and 27 Pac. 537; U. S. v. Throckmorton, 98 U. S. 61; Brown v. County of Buena Vista, 95 U. S. 157. 66 There is another and conclusive reason for denying relief in the present action. The relief sought is inequitable. It is a fundamental principle of equitable jurisprudence that the party seeking relief must not only come into court with clean hands, but with a just, equitable, and conscientious claim. In the terse language of Mr. Justice Swayne in the case of Sullivan v. Railroad Co., 94 U. S. 806, in speaking of the equity jurisprudence of the court, "nothing can call forth this court into activity but conscience, good faith, and reasonable diligence." See, also, High, Inj. § 114. It is established beyond doubt that the newly-discovered corner is not where the law requires it to have been placed, but several hundred feet away from such point; and admitting, for the purposes of this case, that this corner, if authenticated, would have controlled in the law action, it does not necessarily follow that the judgment will for this reason be set aside in equity, but it must be further shown that the judgment sought to be enjoined is inequitable. 2 Story, Eq. Jur. (12th Ed.) § 896; 1 High, Inj. § 114; Holmes v. Stateler, supra. It is upon this principle that it has been held that although a party may have a cause of action at law for the breach of a contract, while the provisions of the contract itself may be so inequitable that if a court of equity be appealed to it would deny a decree for its enforcement, there are other defenses, such as the statute of limitations, the statute of usury, and the like, which are allowed and favored in law, but would be no ground upon which to invoke the jurisdiction of equity for the purpose of obtaining a new trial in order to give the party an opportunity to plead such statutes, although he might, as the result of excusable neglect, have been prevented from interposing the same in the law action. The United States statutes relating to the survey of the public lands provide, in section 2395, that such "lands shall |