which were known as and called "Vanderbilt Ores," which as defendants believe were taken from the Vanderbilt claim, of which the said Wight and others were the owners and claimants, and in possession under claim and color of title. Plaintiffs, in reply, deny that Wight and others were the owners of any part of the Vanderbilt claim in conflict with the Maid of Erin claim; deny that any part of the Vanderbilt claim conflicted; and allege that prior to the date mentioned the government of the United States had sold to the plaintiffs Tabor and Du Bois the Maid of Erin claim, and given a receiver's receipt for the same from the land-office at Leadville; and aver that Ovens and Wight wrongfully went into a portion of the ground described in the complaint while plaintiffs were in possession of it, and mined and carried away the ore, which was the same ore mentioned in defendants' answer; deny that Ovens and Wight had any title to the ground from which

ver, brought by Horace A. W. Tabor, David H. Moffatt, Jacob J. B. Du Bois, James G. Blaine, and Jerome B. Chaffee, the first, against Eddy, James, and Grant; the second, against the Omaha & Grant Smelting & Refining Company, in which it appears the business of the former defendants was merged, Plaintiffs alleged that they, with Charles E. Rider, were the owners and in the possession of the mine in the county of Lake known as the "Maid of Erin Lode," and as survey "Lot No. 568," and "Mineral Entry No. 384," from the 1st day of January, 1882, until the 11th of October, 1883. That between the 3d of July and the 31st of August, 1883, Thomas Ovens, Stanley G. Wight, and others wrongfully entered upon the property, and mined and took out a large quantity of valuable ore, and sold the same to the defendants, who converted it to their own use; and that the ore so mined, sold, and purchased by the defendants was of the value of $25,000 over and above the cost of mining, rais-ore was taken, and aver that all the possesing, hauling, and treating. That about the sion they had was wrongful and illegal, and 9th day of March, 1886, the plaintiff Jerome temporary, for the purpose of obtaining the B. Chaffee died, and David H. Moffatt be- ore; that the entry of Ovens and Wight was came executor. That on or about the 20th through a shaft on the Big Chief claim, not of November, 1885, Charles E. Rider sold and owned by either party to the controversy, transferred to David H. Moffatt his cause or and that from such shaft they worked over causes of action in the premises, and that the the boundary into plaintiffs' property; deny defendants mixed and confused the ores of that defendants did not know that Ovens and plaintiffs with other ores, destroyed their Wight were taking the ore from plaintiffs' identity, and sold and converted them into ground; and aver full notice and knowledge money. Plaintiff's pray judgment for $25,- of the fact. The two suits were consolidated 000, and interest. Defendants answer, de- for the purpose of the trial. The venue was nying all the allegations in the complaint, changed to Lake county; the cause tried beexcept the allegation of sale and assignment fore the court and a jury, April 15, 1888; by Rider to Moffatt, in regard to which they verdict for plaintiffs against Eddy, James, say they are not informed, and the allegation and Grant for $3,990.45, and against the that defendant had not paid plaintiffs for the Omaha & Grant Smelting & Refining Comore, which is admitted. For further defense, pany for $14,397.67. There are 61 assigndefendants allege that, at the time of the al- ments of error. Of these, 38 are to the rul leged entry and wrongful taking of ore, Stan-ing of the court in admitting and rejecting ley G. Wight, Jervis Joslin, Chester B. testimony; 22 (being those from 39 to 60, Bullock, Boyd Park, A. W. Rucker, and both inclusive) are to the rulings of the court Rucker were the owners and in the in giving and refusing the instructions asked; possession of the Vanderbilt lode mining the 61st and last is to the refusal of the claim, which conflicted with and embraced a court to grant a new trial. The other facts part of the Maid of Erin claim. That the necessary to a proper understanding of the territory in conflict was in litigation between case necessarily appear in the opinion. the respective parties. That several actions Patterson & Thomas, for appellant. Wolat law and equity concerning it were pend-cott & Vaile, J. B. Bissell, and L. C. Rocking and undetermined. That at the dates well, for appellees. mentioned in the complaint Wight and others were mining and taking ores from the REED, C., (after stating the facts as above.) Vanderbilt claim, and from that part in con- The first 15 and the eighteenth errors assignflict with the Maid of Erin. That these facts ed are to the ruling of the court on the crosswere unknown to defendants; and that the examination of plaintiffs' witness O. H. Harore so taken, or a part of it, was sold and ker. Counsel in their argument for appeldelivered to the defendant at its smelting lants say: "The defendants sought to show works in Leadville, as ore from the Vander- by cross-examination of the plaintiffs' witbilt lode, and purchased by defendants in nesses that at the time of the commission of regular course of business. That long after the trespasses complained of, the Maid of the purchase of the ore by defendants they Erin mine was owned by the Henriett Minwere informed that the ore was taken from ing & Smelting Company and J. B. Du Bois, the ground in dispute. Defendants further and that the original trespassers were ensay, in answer, that some time during Au-joined at the suit of these parties by proper gust or September, 1883, they did purchase proceedings instituted for that purpose, but ores belonging to Wight, Rucker, and others they were not permitted to do so." It ap

this case cannot set up a title of a third person in defense, unless he in some manner connects himself with it. Duncan v. Spear, 11 Wend. 54; Weymouth v. Railroad Co., 17 Wis. 555; Harker v. Dement, 9 Gill, 7. It follows that the court did not err in limiting the testimony on the cross-examination to the attempted discrediting of the witness, and in refusing to admit records, except for purposes of impeachment.

pears that counsel for appellants (defendants of plaintiffs, in charge of their work in the below) upon the trial attempted, on cross- Maid of Erin, no statement, no matter how examination of the witness, to show that the solemnly made by him as the agent of the plaintiff Du Bois owned one-half of the Maid Henriett Company, in favor of such company, of Erin property, and the Henriett Company or against the title of plaintiffs, could affect the other half, and that the other plaintiffs either, much less conclude and estop the plainwere not owners, by showing that the wit-tiffs from asserting the contrary, as is urged ness had so stated in a legal document signed by counsel. There was no plea of property in and verified by him as manager and agent in the Henriett Company, and of entry and justisome former proceeding concerning the prop-fication under such a title. The defendant in erty, in which case an injunction was issued to restrain a trespass upon the Maid of Erin claim upon the complaint so signed and verified; but the court would not permit it to be done. An examination of the questions asked the witness, which the court did not permit him to answer, will show that none of the testimony sought went to any issue in the case, was not directed to anything in his direct testimony, and was not legitimate cross-examination. Many of the questions It is assigned for error that the court alwere in regard to facts that could only have lowed plaintiff Tabor to testify to a converbeen proved by production of records or doc-sation with McComb after the latter had uments. Some of the questions were in regard to suits at law and proceedings where there is nothing in the record to show he in any way participated or of which he had any knowledge; and all the testimony sought, in our view of the case, was immaterial, except in so far as it tended to discredit him or weaken his testimony by showing that his acts or declarations on previous occasions were at variance and inconsistent with his testimony at that time. This counsel had a right to do by introducing the records or documents, and asking him in regard to oral statements. It appears that in the course of the trial the papers executed by the witness, to which his attention was called, were admitted in evidence for the purpose of impeachment, the only legitimate purpose they could serve.

been called, and had given his version of it. Counsel put it upon the ground that a party cannot be allowed to contradict or impeach his own witness. It does not appear that Tabor was called for any such purpose, or that his testimony had that effect. He was called to give his version of what occurred at that interview with McComb. A careful comparison of the testimony of both shows that of Tabor more corroborative of than contradictory to that of McComb,—at least, as to the result of such conversation,-although there is some discrepancy in regard to the language used. "The party calling a witness is not precluded from proving the truth of any particular fact by any other competent testimony." 1 Greenl. Ev. § 443.

Appellants' counsel rely upon the conversation of Tabor with McComb as a license or It is clear that the title of the Henriett consent on the part of Tabor to the entry and Company to one-half of the Maid of Erin taking of the ores from the Maid of Erin claim could not have been established by pa- ground, and contend that his license or conrol statements, or the acts of an agent in sent as a co-owner to the extent of one-sixverifying papers where the facts were so teenth of the Maid of Erin ground was constate. Counsel say this was one purpose clusive upon himself, and also upon his cofor which the evidence was sought to be elic- owners of the other fifteen-sixteenths, and ited on cross-examination. Had it been was equivalent to a license or consent from proper cross-examination, and directed to an all, to the extent of covering the entire propissue, it was incompetent for the declared erty. A license or consent cannot be expurposes for which it was sought. The tended by inference as a consent to enter agency of the witness had not been estab- property not spoken of or referred to in the lished by any testimony but his own. He stat- conversation, and we can find nothing in the ed under oath at the time suit was brought testimony of either McComb or Tabor in rethat he was the manager and agent of the gard to entering and taking ore from the Henriett Company. This was insufficient. An Maid of Erin ground. It was not attempted agency cannot be established by his own dec- to be shown that Ovens, Wight, and Rucker larations. Harker v. Dement, 9 Gill, 16; entered under license or consent from Tabor. James v. Stookey, 1 Wash. C. C. 330. If an At the conversation both testify that Tabor agency had been proved, it was that at the was informed the parties had entered under time of verifying the papers he was the man- an order from the court, against which he ager and agent of the Henriett Company; was powerless for the time. It further apand his sworn statement that he was such pears that those parties were in at the time agent, and that his principal owned one-half McComb and Tabor had the conversation, of defendants' claim, could not be binding and McComb only asked consent to join upon or in any way affect the plaintiffs in them. It cannot be contended that such a this action. And although he was the agent consent was a license to Ovens, Wight, and

Rucker to enter. The testimony went to the time of the conveyance of the different interjury, and in the eighth and ninth instruc-ests by Tabor, Moffatt, and Chaffee in the tions given on prayer of plaintiffs they were Henriett Company, possession of the proper instructed, in effect, that they could not limit or reduce the amount to be recovered by reason of the supposed license or consent of Tabor, unless they should find that there was a consent on his part that they should enter through the Big Chief shaft, and take the ore from the Maid of Erin claim; and the same proposition is submitted in the instruction given on behalf of defendants in place of No. 7, refused. These instructions on that point, we think, were correct, and fairly submitted to the jury the question of license or consent. And it is evident from the verdict that the jury found against any such license or consent; and, the jury having so found, it would seem unnecessary to determine whether the instructions were correct or otherwise in regard to the extent such consent, if found, should affect or modify the amount; or, in other words, whether it should cover the whole taking of ore, or be confined to the one-sixteenth owned by Tabor. The jury having found no consent or license on the part of Tabor, defendants could not be prejudiced by the instructions of the court in regard to its effect, if it were found.

ty conveyed was to remain in the grantors until the purchase price was paid; that it never was paid; and possession under the conveyance never delivered. A part of such testimony-that which went to show that possession was to be retained-was inadmissible. "All conveyances of real estate and of any interest therein duly executed and delivered shall be held to carry with them the right to immediate possession of the premises or interest conveyed, unless a future day for the possession is therein specified." Gen. St. c. 18, § 9; Drake v. Root, 2 Colo. 685. Under the statute, it is certainly required that the intention to postpone the operation of a deed shall be declared in the instrument, and it cannot be proved by paro!. It follows that the instructions of the court on this point were in part erroneous; that part of the testimony going to prove that possession of the property was never deliv ered, and remained in the grantors, was clearly competent and proper; and the instructions of the court were proper on that point.

the Henriett Company, it would have been inadmissible. There was no attemped justification of entry of Wight and others under the Henriett title of one-half. Under a plea that the close upon which the alleged trespass was committed was not at that

The admission in evidence of the deeds of The question is quite different from what reconveyance by the Henriett Mining Comit would be if it related to a transaction in pany and the assignment of Rider of his the ordinary course of business relative to cause of action was not erroneous, and the joint property of tenants in common. should be sustained, the former investing Here it is attempted to justify a tort, and plaintiffs with full title before the comthe injury to the entire property by the sup-mencement of suit; and of the validity of posed license of one joint owner. If the en- the latter, so as to enable Moffat, assignee, try had been made by Tabor in person, and to succeed to all the rights of his assignor. the wrongs attempted to be justified under there can be no question under our statute. permission from, had been done by, him, his Had defendants, by proper and competent co-tenants could have had against him the testimony, attempted to prove the ownersame actions at law for injuries to their in-ship of one-half of the Maid of Erin claim in terests that all are attempting to enforce against parties having no interest. It is held "an action on the case sounding in tort may be maintained by one tenant in common against his co-tenant for a misuse of the common property, though not amounting to a total destruction of it." McLellan v. Jen-time the close of the plaintiff, the defendant ness, 43 Vt. 183; Agnew v. Johnson, 17 Pa. may show lawful right to the possession of St. 373; Lowe v. Miller, 3 Grat. 205. And, the close in a third person, under whom he if one tenant in common assume to own and claims to have acted. Jones v. Chapman, 2 sell the thing held in common, the other may Exch. 803. But a bare tort-feasor cannot maintain an action of trover against him. set up in defense the title of a third person Burbank v. Crooker, 7 Gray, 159; Wheeler between whom and himself there is no privv. Wheeler, 33 Me. 347; Coursin's Appeal, ity of connection. Branch v. Doane, 18 79 Pa. St. 220; White v. Osborn, 21 Wend. Conn. 233. In justifying under a third per72; Smyth v. Tankersley, 20 Ala. 212. The son, the defendant must show both the title authority of the tenant in common could not and the possession of that person, (Chambers be extended to cover acts of others that he v. Donaldson, 11 East, 65; Merrill v. Burcould not legally have done himself. Hence bank, 23 Me. 538; Reed v. Price, 30 Mo. the court was correct in holding and instruct-442,) and that the acts were done by that ing the jury that the consent or license of person's authority. (Dunlap v. Glidden, 31 Tabor, if such were found, could only extend Me. 510.) A defendant can only justify upto the interest owned by him in the common property.

Appellants further assign for error the rul ing of the court in admitting the testimony of Tabor when called by the plaintiffs to show that, by a parol agreement made at the

on the ground of a better right or title than the plaintiffs have. And it has been held that mere naked possession, however acquired, is good as against a person having no right to the possession. Knapp v. Winchester, 11 Vt. 351; Haslem v. Lockwood.

37 Conn. 500; Cook v. Patterson, 35 Ala. | if a patent had been issued. "The final cer102. It will be apparent that in the judg-tificate obtained on the payment of the money ment of this court the effort of defendants is as binding on the government as the patto set up title to half of the property in the ent. * * * When the patent issues it Maid of Erin claim in the Henriett Com- relates back to the entry. * * * " Aspany, without a plea that effect, and attempting to show privity or attempting to justify under it, was unwarranted in law, and that no testimony should have been taken in support of any such attempted defense.

trom v. Hammond, 3 McLean, 107; Blachley v. Coles, 6 Colo. 350; Poire v. Wells, Id. 406; Steel v. Smelting Co., 106 U. S. 447, 1 Sup. Ct. Rep. 389; Heydenfeldt v. Mining Co., 93 U. S. 634. The patent does not inAnother defense interposed, which seems vest the purchaser with any additional propincompatible with the former, was that cer- erty in the land. It only gives him better legal tain parties, named in the answer, were the evidence of the title which he first acquired owners of the Vanderbilt claim, and that by the. certificate. Cavender v. Smith, 5 such claim conflicted with and comprised a Clarke, (Iowa,) 189; Id. 3 G. Green, 349; Arpart of the Maid of Erin claim, and that the nold v. Grimes, 2 Clarke, (Iowa,) 1; Carroll claim was in the possession of the owners v. Safford, 3 How. 460; Bagnell v. Brodernamed under claim and color of title; and ick, 13 Pet. 450; Carman v. Johnson, 29 that the ground from which the ore was tak-Mo. 94; Hutchings v. Low, 15 Wall. 88. A en was in conflict between the owners of the patent title cannot be attacked collaterally.. claim, and that divers suits in regard to the “Individuals can resist the conclusiveness of same were pending and undetermined; that the patent only by showing that it conflicts Wight and others, while engaged in mining with prior rights vested in them." Boggs the Vanderbilt claim, took the ores from the v. Mining Co., 14 Cal. 362; Leese v. Clark, ground in controversy, which defendants 18 Cal. 555; Jackson v. Lawton, 10 Johns. bought as Vanderbilt ore; and that the same 24. An "adverse possession" is defined to was taken by the owners of such claim while the locus was in their possession under color of title. It is shown in evidence that there were two entries on the property in controversy, the first by Wight, one of the owners of the Big Chief in 1882, after the Maid of Erin had a receiver's receipt from the United States land-office, when a drift was run from the Big Chief shaft for the Maid of Erin, and was run over the line 20 or 28 feet, into the Maid of Erin ground. The second entry was by the same party and others, in the same way, and upon the same ground. Neither entry was made by extending the work of the Vanderbilt claim to its exterior limits, and thus entering the Maid of Erin property. The party entering and participating in the proceeds of the ores mined were not the owners of the Vanderbilt, but seems to have been one made up for the occasion,-part of the owners of the Vanderbilt, some of the owners of the Big Chief, and, perhaps, parties owning in neither. The plaintiffs pleaded title to the Maid of Erin claim from the government of the United States, and put in evidence a receiver's receipt for the purchase of the property, of date November 23, 1881, and a patent from the United States government dated March 17, 1884. It has been frequently held that a patent for land emanating from the government of the United States is the highest evidence of title, and in courts of law is evidence of the true performance of every prerequisite to its issuance, and cannot be questioned either in courts of law or equity, except upon ground of fraud or mistake, and, if not assailed for fraud or mistake, is conclusive evidence of title. On the 23d of November, 1881, the government parted with its title to the Maid of Erin property, sold it to Tabor and Du Bois, and gave a receipt. The government could thereafter no more dispose of the land than v.21p.no.15-59

be the enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued under assertion or color of right on the part of the possessor. Wallace v. Duffield, 2 Serg. & R. 527; French v. Pearce, 8 Conn. 440; Smith v. Burtis, 9 Johns. 174. The entry of a stranger, and the taking of rents or profits by him, is not an adverse possession. When two parties are in possession, the law adjudges it to be the possession of the party who has the right. Reading v. Rawsterne, 2 Ld. Raym. 829; Barr v. Gratz, 4 Wheat. 213; Smith v. Burtis, 6 Johns. 218; Stevens v. Hollister, 18 Vt. 294; Brimmer v. Long Wharf, 5 Pick. 131. Possession, to be supported by the law, must be under a claim of right, and adverse possession must be strictly proved. Grube v. Wells, 34 Iowa, 150. The color must arise out of some conveyance purporting to convey title to a tract of land. 3 Washb. Real Prop. 155; Shackleford v. Bailey, 35 Ill. 391.

The title of the Maid of Erin claim was in the government of the United States until divested by its own act. There could be no adverse possession against the government. The claimants of the Vanderbilt claim entered under license only from the government. Admitting, for the purposes of this case, that the entry under the license was legal, that they had complied with the laws of congress and the state, and that their possession extended to and was protected to their exterior lines while the fee remained in the government, when the fee passed from the government to the other party conveying the locus, before that time in controversy, the supposed license was revoked, and all acts and declarations of the parties themselves, whether by record or otherwise, as establishing a possessory right, were void as

against the grantees of the government, | fore its adoption. Consequently the law apand there could be no entry under color of plicable and to be administered in each case title, except by some right by conveyance depends as much as formerly upon the nateither from the government or its grantees. ure of the case,—the allegations and the disThe fact of the actual possession and occu- tinctive form the case assumes. In many pancy of the Maid of Erin by plaintiffs was states the courts have attempted in this acnot seriously disputed, and the testimony tion to make the rule of damage correspond was ample to warrant the jury in finding the to that in the action of trespass, and make it fact. The government had granted the land in that respect as full and complete a remedy. previous to the entry of Wight and others, In the state of New York it was long held, and that such possession under a legal title and perhaps still is, that the increased value was co-extensive with its bounds is so well of the property, added by the labor and acts settled that authorities in its support are un- of defendant, belongs to the rightful owner necessary. of the property, and the value of the property in its new and improved state thus becomes the measure of damages, but the doctrine has been questioned and severely_criticised in the same state. Brown v. Sax, 7 Cow. 95. In trespass, damage for the whole injury, including diminution in the value of the land by the entry and removal, as well as of the value of the property removed, may be recovered; and the character of the entry, whether willful and malicious, or in good faith, through inadvertence or mistake, is an important element,—an element that cannot enter into the action of trover. In trover, the specific articles cannot be recovered as in replevin. Consequently the same rule as to increased value cannot be applied as in that action, where the specific property can be followed, and, when identified, taken without

We do not think the court erred in refusing to admit the testimony offered in support of possessory title of the Vanderbilt in the land from which the ore was taken, nor in refusing the testimony in reference to litigation and suits pending between the parties. Neither the title nor right of possession of plaintiffs could be attacked collaterally as attempted, and the testimony offered under the law as shown above was incompetent and inadmissible to prove either adverse possession or color of title. From our view of the law controlling the case, as stated above, it follows that the court did not err in refusing the instructions asked on this point by the defendants, or in giving those which were given. They were substantially correct. The sale of ore by Wight and others, and purchase by the defendants, was a conver-regard to the form it has assumed. It seems, sion. A “conversion" is defined to be any on principle, therefore, (and this is in harart of the defendant inconsistent with the mony with the English authorities and those plaintiff's right of possession, or subversive of many of the states,) that where a party of his right of property. Harris v. Saunders, makes his election, and adopts trover, the 2 Strob. Eq. 370, note; Webber v. Davis, 44 rule of damage is and should be proper comMe. 147; Gilman v. Hill, 36 N. H. 311: Clark pensation for the property taken and conv. Whitaker, 19 Conn. 319. The defend-verted, regardless of the manner of entry and ants, by purchasing the ore, acquired no title, and are consequently equally liable for its conversion as the parties who sold it. Clark v. Wells, 45 Vt. 4; Clark v. Rideout, 39 N. H. 238; Carter v. Kingman, 103 Mass. 517. And it was a matter of no importance, so far as the legal liability of defendants was concernel, whether they were ignorant or informed of the true ownership. Morrill v. Moulton, 40 Vt. 242; Johnson v. Powers, Id.-whether the action is for an injury to the 611; Railroad Co. v. Car-Works Co., 32 N. J. Law, 517; Dixon v. Caldwell, 15 Ohio St. 412; Hoffman v. Carow, 22 Wend. 285. The principle caveat emptor applies. A person purchasing property of the party in possession, without ascertaining where the true title is, does so at his peril, and, although honestly mistaken, will be liable to the owner for a conversion. Taylor v. Pope, 5 Cold. 413; Gilmore v. Newton, 9 Allen, 171; Spraights v. Hawley, 39 N. Y. 441.

The question of the proper measure of damages is one of much greater difficulty. We can find no conclusive adjudication in our own court. The decisions of the different states are conflicting and irreconcilable. Although, under our Code, different forms of action are abolished, the principles controlling the different actions remain the same as be

taking; and, where the chattel was severed from the realty, regardless of the diminished value of the realty by reason of the taking. In other words, the true rule should be the value of the chattel as such when and where first severed from the realty and becoming a chattel. An examination of the authorities will show that the rule of damages to some extent depends upon the form of action,

land itself, or for the conversion of a chattel which had been severed from the land. This distinction seems well founded in principle and reason. This view of the law is supported by Martin v. Porter, 5 Mees. & W. 352; Wild v. Holt, 9 Mees. & W. 672; Morgan v. Powell, 3 Q. B. 278; Hilton v. Woods, L. R. 4 Eq. 432; Maye v. Yappen, 23 Cal. 306; Goller v. Fett, 30 Cal. 481; Coleman's Appeal. 62 Pa. St. 252; Cushing v. Longfellow, 26 Me. 306; Forsyth v. Wells, 41 Pa. St. 291; Kier v. Peterson, Id. 357; Moody v. Whitney, 38 Me. 174. We are therefore of the opinion that the rule of damage adopted, and the instructions of the court as to the measure of damage, were erroneous, and that it should have been the value of the ore sold, as shown, less the reasonable and proper cost of raising it from the mine after it was broken,