EDY. Where defendant authorized a broker to sell his ranch, but refused to give exclusive sale, the broker had authority to produce a purchaser, able, ready, and willing to buy upon the owner's terms, but was without authority to bind defendant in the absence of specific authorization in writing, so that a purchaser to whom the agent agreed in writing to sell was not entitled to specific performance. Error to District Court, Park County; John H. Denison, Judge. Action by E. R. Stark against Joseph Rogers. Judgment for defendant, and plaintiff brings error. Affirmed. business through us. This gentleman asked us to-day what position we are in, in case he should secure a buyer, to not let the deal get away from us. We firmly believe we will sell the place very soon, but as our efforts are so scattered, we do feel that we should have at least an agreement of exclusive sale while we are dealing with the people mentioned as well as others that may turn up at any time. Hope you will see the matter as we do and return the brief agreement we are sending herewith. The agreement mentioned is as follows: "Howbert, Colo. Sept. 28th, 1913. "Mr. A. L. Patton, Colo. Springs-Dear Sir: I rec'd the prospectus describing the '63' ranch. Everything seems to be all right except the sive right to sell the property. I don't feel like agreement for me to sign, giving you the exclusigning this agreement as there are several parties after me now to buy the property. If you are the first one to find a buyer who wants the property it would be all right. If a man comes to me with the ready cash to buy the property I want to be at liberty to sell my own property without asking any questions of any one. If you can sell the property I will do just as I said I would by you. I never go back on anything I say. "Yours very truly, Joseph Rogers." The prospectus described the ranch and perStark brought this action as plaintiff sonal property, and among other things statagainst Rogers as defendant in the court be- ed that Rogers desired to sell and had placed low to enforce specific performance of a con- it all in the hands of the Patton Realty Comtract to convey certain real estate and per-pany of Colorado Springs for sale. Septemsonal property. The contract is signed by A. ber 28th Rogers replied as follows. L. Patton as agent for the owner, and the controversy turns on whether Patton was authorized in writing to enter into a contract binding Rogers to convey the title. Rogers owned the "63" ranch with water rights near Hartzell in Park county, together with 1,000 head of branded cattle, more or less, harness, saddles, wagons, farm implements, household furniture, tools, blacksmith shop, cows and horses, all of which he desired to sell. The evidence shows that Patton, a real estate broker living at Colorado Springs, heard the place was for sale, and went up in September, 1913, to see Rogers about a sales agency. Rogers told him the place was for sale, and after visiting the ranch, they talked over the terms and conditions, and Patton was given an oral agency, which in substance was that, if he found a purchaser, Rogers would sell for $50,000, the whole of the purchase price to be paid in cash; that is, there were to be no deferred payments or time given, and he agreed to give Patton $1,000 commission for his trouble. After returning to "I priced the place at $60,000, and Mr. Stark, Colorado Springs, Patton concluded that for who is evidently acting for some one else, has his protection, he should have an exclusive accepted it at that price. Mr. Stark has agreed agency, and so prepared such an agreement, to pay $2,000 to show his intention to complete also a prospectus which he mailed September course, he would have a right to do, and in the the payments when title is examined, which, of 4th, with a letter to Rogers. In the letter meantime to look the stock over to assure he stated: We are sending you herewith a himself that everything is just as represented, copy of the prospectus we have issued, de- which, of course, he knows in advance is posiscribing the "63" ranch, and hope you will ty is such that no man would think of questiontively described, as your reputation for integriapprove of it. We have submitted it to a ing it. But this is merely a matter of business, good many people. In Denver, we have of which every man expects and really desires. fered the property to a Mr. Ridenour, who My idea is, in view of the heavy snow, that it will take several weeks to fully turn over the is an agent, and in case he should find a buy-place, but a substantial payment as is offered er before we do, he of course would do the will logically complete the deal, except the This letter is the basis of plaintiff's cause of action, and he relies upon it as Patton's written authority to make a sales contract binding Rogers to convey the title. February 24, 1914, Patton wrote Rogers that he had found a purchaser who would pay $60,000 cash after an inspection of the property and an examination of the abstracts. In this letter he states: preliminaries which will naturally follows, and I hope to hear from you right away so myself and Mr. Stark may come up to your place soon and make this payment, and talk the whole matter over as man to man. We are to accept a payment of $2,000 to apply on purchase price, balance to be paid as soon as the weather will permit an inspection of the property; and in case they fail to complete the payments, we are to keep the money so paid. This kind of an arrangement is simply a cash sale arranged to suit the bad weather, which I am sure you will appreciate as well as to appreciate that such an offer comes from those who are not triflers; for a substantial cash payment, such as is proposed, is sufficient evidence of good faith. personally feel confident that you will sanction my ideas, and see that in every way I have had your welfare in mind, particularly when the bad weather is considered." less and to consider Joseph Rogers released in every way in case the count may not be satisfactory in the future. Passing of title shall be considered as a release of any responsibility whatever. Party of the first part as agent for said Rogers agrees to deliver good merchantable title to all pertaining to said ranch, and to place papers in the hands of party of the second part for his inspection as soon as the first payment heretofore mentioned is paid. It is further agreed that time is the essence of this agreement, and that failure on the part of the second party to complete payment as above set forth shall be and is a forfeiture of the amount already paid and may be retained by said RogIers as liquidated damages. Except that in case the cattle may not all be found or that the count may appear as being short of one thousand head all told then party of the second part may demand the return of the two thoushown conclusively that the number is short sand dollars above mentioned when he has of one thousand, but he nor his successors or assigns may demand such return of money for any other reason. In case count does appear to be short and party of the second part accepts and settles for said property, then the act of his acceptance and payment shall be considered as a final release of said Joseph Rogers. March 3, 1914, Patton telegraphed Rogers that himself and two others would be up on the noon train Thursday to see the place, and wanted him to go with them if convenient; that they were prepared to make payment as per his letter; to which Rogers replied that the road to the "63" ranch was impassable, and not to come. March 10, 1914, Patton prepared the sales contract upon which this suit was afterwards brought, but it was not signed at that time. Some time between the 10th and the 18th, Patton and Stark visited the cattle ranch, Stark inspected the cattle, and after they returned to Colorado Springs, the sales contract was signed and Stark paid Patton $2,000 in cash on the contract, for which he took a receipt as follows: "Colorado Springs, Colorado, March 18, 1914. The sales contract is as follows: "A Contract. "Colorado Springs, Colorado, "March 10th, 1914. "This contract entered into this 10th day of March, 1914, between A. L. Patton, agent for Joseph Rogers, hereinafter designated as the party of the first part, and E. R. Stark, hereinafter designated as the party of the second part, witnesseth: The party of the first part agrees to sell the property with all water rights, cattle, horses and other chattels known as the Sixty-Three (63) Ranch as described in a prospectus; a copy of which is herewith attached for the total sum of $60,000, sixty thousand dollars. Said total sum is to be paid in cash in the manner hereafter set forth: $2,000.00, two thousand dollars, on the execution and de. livery of this contract and the balance, $58,000.00, fifty-eight thousand dollars, as soon as the party of the second part or his agents or assigns may inspect and invoice the cattle and horses on said ranch: Provided, however, said inspection must be made and total payment completed on or before sixty days from this date. It is understood and agreed that the time here mentioned is given on account of weather conditions only, and is not intended to extend time except in case of bad weather. It is further understood and agreed that the party of the second part is to satisfy himself as to the "A. L. Patton [Seal] The following, copied from the prospectus, was indorsed on the contract: to Joseph Rogers of Howbert, Colorado, is an "This description of the '63' ranch belonging exact carbon copy, in fact the same identical copy,' which was submitted to Mr. Rogers by his letter of September 28, 1913, and is hereby me for his approval and returned to me with made a part of my agreement with E. R. Stark for the sale of said property. In case this agreement is finally consummated by said Stark, this description is to be considered the basis A. L. Patton, Agent." of sale. * * be reasonably satisfactory. They are anxious To which Rogers replied: "Howbert, Colo., March 22, 1914. "Mr. A. L. Patton, Colorado Springs, Colo.Dear Sir: Your letter of the 19th with inclosures was rec'd in due time. In reply will say I will return all inclosures to you, including check for $2,000. I don't want any money on my property until it is sold. When my '63' ranch and property is sold I will give a warranty deed for the whole of it, providing that the price agreed is spot cash. My price in the '63' ranch and property now is $62,000; this from to-day. Any time in two weeks from to- | of an agent to sell real estate does not day $62,000 spot cash will buy the '63' property, vest him with power over the title, and cattle and ranch. March 27th Patton wrote: although he produces a purchaser ready, able, and willing to buy the property on the owner's terms, still the owner may decline to convey or complete the sale. In Johnson v. Lennox, supra, it is held that where the purchaser brings suit upon a contract executed by an agent to convey real estate, the burden is upon the plaintiff to show that the agent was not only authorized to negotiate the sale of the land, but that he was given authority in writing to enter into a contract with the purchaser binding the owner to convey upon the terms expressed in the sales contract. In Springer v. City Bank, supra, the agent was authorized in writing to procure a purchaser and sell the land; held, that this only authorized him to find a purchaser able, ready, and willing to buy upon the owner's terms, and did not give the agent authority over the title or to enter into a contract of sale with the purchaser binding the owner to convey the title. In the opinion at page 381 of 59 Colo., at page 255 of 149 Pac. (Ann. Cas. 1917A, 520), it is said: "I was very much surprised to receive your letter returning the check for $2,000. You certainly authorized me to sell the ranch, cattle, horses, etc., for $50,000. I have done that and more. The sale was made practically on a cash basis. You could not expect that any one would place the entire purchase price in your hands without an opportunity to inspect the property and examine the title. I was ready with my party to go to the ranch to make this examination. My letter of February 24th advised you fully of the negotiations which I had carried on with Mr. Stark, the price I had given, and the terms of sale. To that you made no reply, nor did you in any way indicate to me that you did not desire to sell the property at the price and on the terms mentioned. On the contrary, after the telegram to you of March 3d you replied on March 4th: 'Road Haver to "63" impassable. Don't come up now. From which I inferred, as I had a right to, that everything was satisfactory, except that it was impractical to visit the ranch at that time. I have kept you fully advised of each step as it was taken. The parties with whom I have contracted in your behalf have shown their good faith. They are now, and at all times have been, ready, willing and able to complete the purchase. They insist upon your carrying out your part of the contract. I also expect compensation for my services. I am sure that when you consider the whole situation you will realize that you have made a mistake. I therefore suggest that you write me at once, fully ratifying the contract which I have made in your behalf, and indicating your willing;ble ness to do your part towards its completion. I hold the check for $2,000 subject to your order." The evidence shows that plaintiff was able, ready, willing, and desirous to go ahead and complete the sale that Patton had negotiated. At the close of plaintiff's evidence the court on motion of defendant entered a judgment of dismissal, and plaintiff brings the case here on error. John R. Smith and H. B. Woods, both of Denver, for plaintiff in error. I. S. Smith, of Greeley, and James A. Orr, of Colorado Springs, for defendant in error. GARRIGUES, J. (after stating the facts as above). 1. Whatever may be the rule elsewhere, it is held by us that where real estate is placed in the hands of an agent with instructions, either orally or in writing, to sell, it confers authority upon the agent to produce a purchaser able, ready, and willing to buy upon the terms offered by the owner, but gives the agent no authority over the title, unless he is specifically authorized in writing to bind the title or to enter into a contract binding the owner to convey the title. Buckingham v. Harris, 10 Colo. 455, 15 Pac. 817; Johnson v. Lennox, 55 Colo. 125, 133 Pac. 744; Springer v. City Bank, 59 Colo. 376, 149 Pac. 253, Ann. Cas. 1917A, In the case of Buckingham v. Harris, supra, it is held that the employment 520. "It is a general rule that where real estate is placed in the hands of an agent, either verbally or by written instrument, to find a purchaser, or with instructions in general terms to sell, the agent is not thereby authorized to enter into a contract of sale binding upon the owner, as in either instance the agent's authority extends only to finding a purchaser acceptato the owner, and to negotiate a sale generally between such purchaser and the owner. The use of the words 'to sell' in such a case is held to mean no more than to authorize the agent to find a purchaser. This doctrine is firmly settled in this jurisdiction." We think the lower court entered the proper judgment, and it will be affirmed. Affirmed. WHITE, C. J., and SCOTT, J., concur. KORF et al. v. ITTEN. (No. 8681.) (Supreme Court of Colorado. Nov. 5, 1917.) 1. HIGHWAYS 68 - ESTABLISHMENT - Bur DEN OF PRoof. Where land claimed by defendant to be a portion of the county highway was under fence and plaintiffs were in possession claiming title, defendant has the burden of proving the exist ence of the highway. 2. HIGHWAYS 68-ABANDONMENT-BURDEN OF PROOF. When the existence of a county highway is once established, the burden is on the landowner denying its existence to show that it has been 3. PUBLIC LANDS 64-HOMESTEAD ENTRYEFFECT. abandoned. Rev. St. U. S. § 2477 (U. S. Comp. St. 1916, § 4919), declares that the right of way for the construction of highways over public lands not reserved for public use is granted. Rev. St. Colo. 1908. § 5834, provides that the board of county commissioners may declare any section or township line on the public domain a public highway. Before the board of county commis sioners declared a highway established over sec- doned. 5. HIGHWAYS CEEDINGS. 66-ESTABLISHMENT - PROWhere he is in possession, a landowner is not obliged to bring a direct action to set aside proceedings to establish a highway over his land which were defective, but may rest on his possession. Findings of the trial court on conflicting evidence should not be disturbed. roads were established by the board of county commissioners of Weld county in 1886, when these lands were a part of that county, and that, in case its proceedings are insufficient to sustain this contention, all parties have acquiesced therein for about 26 years, and that after this long period the plaintiffs should be estopped from claiming otherwise; also, that these facts are sufficient to establish highways by prescription. To sustain the first claim, he relied upon the record of the board of county commissioners of Weld county. It discloses that upon October 12, 1886, a petition was presented to it signed by about 40 alleged landowners. This petition prays that a county road or roads be laid out as follows: "Commencing at S. W. corner of township 1 N., R. 48 W., on the base line and on each section line east through ranges 48 and 47 west and to turn north to township 5 N., R. 48 and 47 W. Also to commence at the same point and on each section line north on R. line between 48 and 49 W. to township 5 N., R. 48 W. and run east through ranges 48 and 47 W. Said roads to run on said section and range lines or as near as practicable. Said road to be not * * less than sixty (60) feet in width." That upon October 23d, following the filing of this petition, a purported order of the board signed by its chairman was entered thereon, as follows: En Banc. Error to District Court, Yuma ers October 23, 1886, when the following action County; H. P. Burke, Judge. Action by Leopold Korf and others against Alfred Itten. There was a judgment for defendant, and plaintiffs bring error. Reversed and remanded, with directions. McConley & McConley, of Sterling, for plaintiffs in error. Jo. A. Fowler, of Denver, for defendant in error. "Presented to the board of county commissionwas taken and entered of record, to wit: It appearing to the board that the right of way is all granted for said roads except through unpatented government land which is taken in accordance with section 2477 of the Revised Statutes of the United States, and the board believing that public good requires said road, on motion it was ordered that the prayer of the petitioners be granted and the roads herein described be and are hereby declared public highways. The clerk is directed to record the petition, plat the roads, and notify the road overseer of the proper district to open said roads to travel at once.' That the petition and order indorsed thereon were duly filed and recorded in the office of the clerk and recorder in Weld county on November 3, 1886. That on said 23d day of October, 1886, a similar order or copy of this order was, by the clerk, entered in the rec HILL, J. The main purpose of this action was to enjoin the defendant in error, a road overseer of Yuma county, from tearing down a portion of certain fences belonging to the plaintiffs in error for the purpose of opening certain alleged public highways, a portion of which, if opened, will be upon 20 quarter sections of land admitted to be own-ords of said board of county commissioners. ed by the plaintiffs in error unless title to the portion in controversy had become vested in the county for road purposes. The court found that the lands in dispute were public highways, and gave judgment accordingly. It will be observed that the road or roads prayed for in this petition include all section lines in eight townships a distance of about 648 miles. The petition discloses that practically all the petitioners who signed it as purported freeholders reside in one township, and that no ten of them lived within 2 miles of any portion of the section lines covered by the alleged roads surrounding the greater portion of the lands in controversy, for which reason it is claimed the record shows affirmatively that the board was without jurisdiction to act as it did; hence its efforts were void. It is also claimed that no survey was made, no viewers appointed, no notices postThe defendant claims: First, that these ed, and no compensation given, for which [1, 2] The lands in question being under fence, with the plaintiffs in possession claiming title thereto, the burden of proof was upon the defendant to show the existence of the highway, which was put in issue. When this is established, the burden (which was made an issue) is upon the landowner to show that the highways had been abandoned. Dingwall v. Weld County Com'rs, 19 Colo. 415, 36 Pac. 148. "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Section 5834 of our Revised Statutes 1908 provides that the board of county commissioners may, at any regular meeting, etc., declare any section or township line on the public domain a public highway. In Stofferan V. Okanogan County, 76 Wash. 265, 136 Pac. 484, it was held that section 2477, Revised Statutes of the United States (U. S. Comp. St. 1916, § 4919), did not operate as a grant in præsenti, that the grant thereunder did not take effect until the highway was established under some public law. In holding that a homestead entryman's right was superior to that of the county for road purposes attempted to be established subsequent to the entry but prior to the patent, the court said: reasons no road was established. These contentions may be eliminated by calling attention to the fact that the petition was not presented for action under the provisions of the statute which counsel refers to, but, to the contrary, was an effort under general section 5850, Revised Statutes 1908, which authorizes the establishment of a road where all of the right of way is given, in which case the appointment of appraisers, the posting of notices, etc., is not required. As to government land, this record discloses that the board's action was attempted by authority of the latter portion of section 5834, Revised Statutes 1908, which is to the effect that the commissioners may, at any regular meeting, by an order of the board, declare any section or township line on the public domain a public highway, and that on and after the date of such order (which shall be attested by the clerk under the seal of the county and re"But a homesteader, after entry, occupies an corded in the office of the recorder of deeds) chased. His entry, which is made by making entirely different position. He has in fact purthe road so laid out shall be a public high- and filing an affidavit and paying the sum requirway. This procedure as to government landed by law, is a contract of purchase which gives not filed upon is authorized by section 2477, Revised Statutes of the United States (U. S. Comp. St. 1916, § 4919). In such circumstances, it is unnecessary to determine whether this petition sought to establish many roads, as claimed, instead of one, or whether the petitioners resided within two miles of those in controversy, if each section line is to be considered as a separate road for the purposes of compliance with the stat utes. [3] The plaintiffs in error own about twenty quarter sections of land through which these roads are alleged to exist. None of these quarters had homestead or pre-exemption filings upon them when, on October 23, 1886, the Weld county board made its order declaring a part thereof as public highways by virtue of its being public land. Thereafter, eight of these filings were relinquished, which lands were entered by others several years after the board's order calling for this road. These last entries ultimately ripened into title. Patent was issued for one quarter upon the original filing, which was in existence when the board made its order declaring a public highway thereon. None of the original entrymen signed the petition for the roads. For these reasons it is urged that the board's order declaring these section lines public highways did not affect the lands upon which filings were in existence where the petition had not been signed by these entrymen, regardless of the fact that eight of these entries were thereafter relinquished to the government and subsequently filed on by others who procured title. The question for determination concerning these eight quarters is: Were they at the time of the board's order a part of the public domain within the meaning of section 2477, Revised Statutes of the United States (U. S. Comp. him an inchoate title to the land, which is property. This is a substantial and vested right which can only be defeated by his failure to perform the conditions annexed." By analogy, this phase of this question has been determined by this court in D. & R. G. R. R. Co. v. Wilson, 28 Colo. 6, 62 Pac. 843, in which it was held that the act of Congress of March 3, 1875, c. 152, 18 Stat. 482 (U. S. Comp. St. 1916, §§ 4921-4926), was not in the nature of an absolute grant in præsenti, but was an offer to all railroad companies to have a right of way over the public lands of the United States; that is, that they might accept it if they wished. This act granting a right of way to railroads is quite similar to the one concerning public highways. In holding that it did not give to the railroads a right of way over lands held by a pre-emptor not located prior to his pre-emption filing, the court said: "It necessarily follows from this ruling that under this act a right of way is not in the nature of a grant in præsenti. Indeed, it was expressly right, in actual occupancy (as plaintiff here undecided that a settler, who had only an inchoate questionably was) must be compensated if the line of road is built across his claim. The Supreme Courts of several of the states have come to the same conclusion." In Yakima County v. Tullar, 3 Wash. T. 398, 17 Pac. 885, in passing upon a quite similar question, the court said: "The right of way over 'public lands' that is granted to the public for roads, etc., doubtless contemplates strictly public lands, such as are open to entry and settlement, and not those in which the rights of the public have passed, and which have become subject to some individual right of settler, or the like, as in this case. Under the laws of the United States, appellee was in possession, and such possession was good as against the world so long as he complied with the laws. From all that appears, he had possession in this way, and to say that valuable features of the land, as springs, and the land itself, honest settler, for the use of the public, is to say can thus be taken without compensation to the |