We concur:

MCKEE, J.; SHARPSTEIN, J.; McKINSTRY, J.

Ross, J., (concurring.) The record does not contain the notice of intention to move for a new trial, nor does the statement on motion for new trial recite the giving of such notice, but the plaintiffs' attorney accepted the draft of the statement without any objection, and at no time in the court below objected to the settlement, or consideration of the statement, on the ground that proper notice of intention to move for a new trial had not been given. The court below, in denying the motion, does not appear to have proceeded upon the supposed want of notice of intention, but upon the determination of the questions presented by the motion itself. We must presume, therefore, that the court found that proper notice was given, or that defendant had waived the objection. Gray v. Nunan, 63 Cal. 220.

Upon the merits, I concur in the conclusions reached by Mr. Justice THORNTON.

(9 Colo. 36)

SUPREME COURT OF COLORADO.

ROCKWELL v. GRAHAM.

Filed February 26, 1886.

1. EVIDENCE-TESTIMONY AFTER STIPULATION.

An offer of evidence in contravention of a stipulation between the parties during the trial will not be allowed.

2. EASEMENT APPLICATION FOR GOVERNMENT TITLE.

An action for an easement cannot be properly brought to defeat the application of a party for a government title to a placer claim.

Appeal from district court, Clear Creek county.

The defendant having made application for the government title to a certain placer claim, the plaintiff filed an adverse claim, and brought this action for a portion of the premises, to-wit, "for one mill-site, 250 feet square, and the land for a mill-race from said milldam

to said mill-site." Trial by jury, and instruction by the court to find for the defendant. Verdict and judgment for defendant.

L. C. Rockwell, for appellant.
Hugh Butler, for appellee.

ELBERT, J. The court did not err in instructing the jury to find for the defendant. The evidence does not show title in the plaintiff to either the mill-site or the land for the mill-race. The evidence does show title in the plaintiff to a "right of way for a flume to conduct water along the creek to what is known as the 'Railey Mill.'" This is the language of the reservation made in Railey's deed by Dean, his attorney in fact, to Montague, the grantor of the defendant, and (within the boundaries of the premises in dispute) this is all that passed by Robert Railey's subsequent deed to Becker, the grantor of the plaintiff.

This is an easement. It is not what is declared on; evidence of it does not support the issue; nor is such a right ground for an adverse claim being fully protected by the provisions of the federal laws. Rev. St. §§ 2339, 2340.

The refusal of the court to allow proof of a pre-emption by Becker is assigned as error. On the trial of the cause "it was stipulated and agreed in open court, by the respective parties, that the plaintiff and defendant claim title from Tarleton Railey and Mary Railey, and that they were the common grantors to plaintiff and defendant. The nature of Becker's pre-emption, the law under which and the purpose for which it was made, does not appear. Presumably the offer was made for the purpose of showing title by pre-emption. If so, it was not admissible as being in contravention of the stipulation above stated.

As to the third assignment, it is sufficient to say that the description of the premises contained in a deed from Dougherty to Montague is referred to by Dougherty in his testimony, apparently for the purpose of identifying the premises conveyed by Dean, attorney in fact, with the premises conveyed to Montague, and by Montague to the defendant; the premises having been described in the two last-named deeds in different terms. Possibly the deed itself was introduced in evidence for the same purpose, but this does not clearly appear. We do not see in this any ground for reversal.

These are all the assignments of error it is necessary to notice. The judgment of the court below is affirmed.

(9 Colo. 73)

SPRUANCE, State Auditor, etc., ex rel. THOMAS, Atty. Gen., v. FARMERS' & MERCHANTS' INS. Co.

Filed March 26, 1886.

1. FIRE INSURANCE-MUTUAL ASSOCIATIONS-ESSENTIAL CONDITION UNDER THE LAWS OF COLORADO.

· Since the method of taking risks in the mutual association of insurance is not declared by statute, and since it is not required to be stated in the articles of incorporation, its selection must have been left to itself. The only limitation affecting the plan which may thus be chosen is that it shall include the principle of mutuality.

2. SAME PRINCIPLE OF MUTUALITY.

The principle of mutuality exists when the persons constituting the company contribute either cash or ass ssable premium notes, or both, as the plan of transacting business may provide, to a common fund, out of which each is entitled to indemnity in case of loss.

3. SAME-ASSOCIATIONS UNDER SECTION 1704, GEN. ST.

Mutual associations organized under section 1704 of the General Statutes may do business upon a cash premium plan.

4. SAME SUBJECT TO APPLICABLE PROVISIONS UNDER THE ACT.

While mutual associations organized to insure against loss of property are not required by the law to have or to accumulate a reserve fund beyond the amount reasonably necessary to meet current losses and expenses, in order to do business within the state, they are subject to all provisions of the act that may be found "applicable."

5. SAME-EXTENT OF POWERS OF SUPERINTENDENT OF INSURANCE.

The superintendent of insurance has almost unlimited power in the investigation of the affairs and management of mutual associations, and enumeration of matters to be considered by the superintendent in such investigations.

Original agreed case.

In the year 1883 the Farmers' & Merchants' Insurance Company was duly organized as a mutual fire insurance association under the following section of our insurance statute:

"The provisions of this act shall not be construed to prevent any number of persons, not less than twenty, from associating together for the purpose of forming an incorporated company for the purpose of mutual insurance of the property of its members. When persons so associated shall have complied with the provisions of this act, so far as [they] are applicable to such mutual companies, the superintendent of insurance shall commission the persons named in the certificate of incorporation, or a majority of them, to open books, to receive propositions, and enter into agreements in manner herein

after specified. But no company so organized shall commence business until bona fide agreements have been entered into for insurance with at least one hundred individuals, covering property to be insured to the amount of not less than fifty thousand dollars."

The association commenced the transaction of business, using both the assessment and cash plans for the payment of premiums for insurance. In the year 1884 the superintendent of insurance, on examination, discovered that the company was in an insolvent condition, the receipts having been absorbed by the management, so that nothing remained with which to pay losses; nor was indemnity against loss in any manner provided.

Upon a reorganization of the company the following resolutions were adopted by the policy-holders as embodying the plan upon which the business should be transacted:

"Resolved, that for the purpose of equitably and mutually indemnifying each other, and that each member shall be required to do and perform his part, to the end that all may be equally and mutually benefited, each member shall pay in as premium at a ratable percentage on the amount of insurance obtained by each, varied as the risks may vary in hazard, based upon the maximum cost of insurance, and such percentage of rates to be established and designated by the manager and secretary of this association on the foregoing basis; and that each policy-holder, upon becoming a member, be required to pay in such stated sum upon insurance received, in cash, note, or notes for the amount, to be paid within a reasonable time, subject to all the conditions, rules, and regulations adopted by the company: provided, that the amount so received shall be in full of all individual liability upon the part of each member.

"Resolved, further, that should the aggregate amount of percentage deposited by each member and all of the policy-holders amount to a greater sum than may be necessary to pay all expenses and losses from time to time, and to pay all accruing losses and expenses upon all unexpired risks, that such unneeded surplus on hand shall, from time to time, be, by the board of directors, equitably and mutually distributed among the policy-holders at the time of such distribution in proportion to their respective ratable interests in such surplus.

"Be it further resolved, that the board of directors be, and are hereby, requested to so alter or modify the existing by-laws as to conform them to the manner of conducting the business of the company as in these resolutions expressed."

At the commencement of this action the association had upwards of 2,000 members, who became such under these resolutions by paying cash premiums in full of their insurance, and in full of all liability. The proceeding in this court is in pursuance of the statute providing for agreed cases. It is conceded in the agreed statement that the affairs of the company since its reorganization have been ably managed, and that it is now in a condition perfectly satisfactory to the superintendent of insurance. The object of the parties in instituting the proceeding is to determine whether, under the laws of Colorado, an insurance company, the membership of which consists of the policyholders, can do business upon the plan provided in the foregoing resolutions.

Theo. H. Thomas, Atty. Gen., (Thornton H. Thomas, of counsel,) for plaintiff.

B. F. Montgomery, for defendant.

HELM, J. The purpose of the legislature in providing for the organization and maintenance of a state insurance department was to protect the interests of the large number of persons within the state who patronize corporations engaged in the business of insurance. Both joint-stock companies and mutual associations are recognized. As to the former, the object of the statute is accomplished in two ways: First, through the supervision and authority therein conferred upon the superintendent of insurance; and, second, by the provisions. making an actual paid-up cash capital of at least $200,000 a prerequisite to the transaction of business, and carefully guarding the investment or loan thereof. The statutory requirements relating to such paid-up cash capital do not apply to mutual associations. Neither are there any corresponding sections providing for a reserve fund in connection with the latter class of companies. It is the customary, if not the universal, rule elsewhere to specify in statutes authorizing the organization of mutual associations the leading features of a plan upon which they shall take risks and conduct business. This plan generally includes specifications relating to a capital or reserve fund, either in the hands of the members and represented in the treasury by assessable premium notes, or in the hands of designated officers. The statute before us, however, is surprisingly deficient in this particular. The only section thereof referring by name to mutual companies organized after its passage contains a statement showing that the legislature intended to make such provision, at least so far as to specify the manner of entering into agreements; but either by reason of inadvertence, or a subsequent change of purpose, this subject was left wholly uncovered.

Since the method of taking risks in the mutual association is not declared by statute, and since it is not required to be stated in the articles of incorporation, its selection must have been left to the company itself; and the only limitation affecting the plan which may thus be chosen is that it shall include the principle of mutuality. We need hardly suggest that an association which did not embrace the foregoing principle would not be a "mutual" company within the meaning of the statute. An important inquiry at this juncture, therefore, is, what are the essential elements involved in the recog nition of this principle? We answer that the principle of mutuality exists when the persons constituting the company contribute either. cash or assessable premium notes, or both, as the plan of transacting business may provide, to a common fund, out of which each is entitled to indemnity in case of loss. Union Ins. Co. v. Hoge, 21 How. 35; Mygatt v. New York Protection Co., 21 N. Y. 52; Ohio M. Ins. Co. v. Marietta Woolen Factory, 3 Ohio St. 348; White v. Haight.