Resurrection Gold Min. Co. v. Fortune Gold Min. Co.

SANBORN, Circuit Judge, delivered the opinion of the court. This is an action of trespass brought by the Fortune Gold Mining Company, a corporation, the lessee of the Fortune lode mining claim, against the Resurrection Gold Mining Company, a corporation, for the intentional removal of ore from the Fortune claim. The plaintiff alleged, and the defendant denied, that the former was the lessee from the owner and was in the possession of the Fortune lode mining claim, and that the defendant intentionally and willfully removed therefrom ore of the value of $100,000. The real issue between the parties, however, was whether the boundary of the Fortune claim at corner No. 3 was at the point where the courses and distances recited in the patent located it, or at a place about 28 feet farther northwest. If it was at the — 670 — former point, the trespass of the defendant was inconsiderable; but if, as the plaintiff claimed and the jury found, it was in the latter place, ore of the value of several thousand dollars had been extracted from the plaintiff’s claim by the defendant. The plaintiff’s title rested upon a patent issued in 1894, and the description in that patent upon the survey for patent made in January, 1882. The original monuments erected by the surveyor at corners 1 and 2 of the Fortune claim, when he surveyed it for patent, were standing upon the ground at the time of the trial. The monument erected at corner 4 had disappeared. The plaintiff insisted that a round stake, with two blazes upon one side of it, loosely placed in the earth, and surrounded by a mound of stones at a place about 28 feet northwest of the point where the courses and distances run from the known corners 1 and 2 located corner 3, was the original monument erected by the surveyor to mark that corner, and that it was in the same place where the surveyor put the original monument in January, 1882. The patent and the field notes on which the patent was based were introduced in evidence by the plaintiff. The recitals of the patent, so far as they are material to the questions in this case, are that it is a grant of the Fortune lode mining claim known as “Tot No. 2,309”; that this claim is bounded as follows: Beginning at corner No. 1, a post four inches square, marked 1-2309, thence south 1 degree 30 minutes west 300 feet to corner No. 2, thence south 88 degrees 48 minutes east 1,465 feet to corner No. 3, thence north 1 degree 30 minutes east 300 feet to corner No. 4, thence north 88 degrees 48 minutes west 1465 feet to corner No. 1 at the place of beginning; and that the lot No. 2,309 extended 1,465 feet in length along the Fortune vein or lode. The field notes recited that a post marked each corner, that qt corner No. 3 there were “no reference points available,” and that “all corner posts are 4" square x 4 ft. long set 2 ft. in ground, and have cut into them the respective number of the corner and number of the survey. No bearing ties available from any of the corners.” The amended field notes recite that there was at corner No. 1 “a post 4 ins. square, 4 ft. long, set 2 ft. in ground and marked 1-2309,” at corner No. 2 “a post 4 ins. square, 4 ft. long, set 2 ft. m ground and marked 2-2309,” at corner No. 3 “a post 4 ins. square, 4 ft. long, set 2 ft. in ground and marked 3-2309,” and at corner No. 4 “a post 4 ins. square, 4 ft. long, set 2 ft. in ground, and marked 4-2309.” Neither the patent nor the field notes describe a mound of stones as a part of any of the monuments. The original monuments which stand at corners 1 and 2 are posts 2 feet high, about 5 inches square, set firmly in the ground, with the figures “1-2309” and “2-2309” cut into them respectively about of an inch. The stake which the plaintiff claims is the original monument at corner No. 3 is round, 4 or 5 inches in diameter, about 3 feet high, and it sets loosely about 6 inches in the ground, and is surrounded by a mound of stones. It is blazed on one side. A partial attempt has 'been made to square it at the top. No figures are cut into it. Some one has whittled or hewn off one side of the blaze, and upon this new blaze has faintly written with a lead pencil the figures “3-2309.” The owner of the claim from whom the plaintiff derives its lease testified that he was present when the survey for patent was made, that — 671 — four stakes of about the same character were set at the four corners, that stones were piled around them, that he did not notice and does not know how they were marked, that he does not know how the round stake at corner No. 3 is marked, that he thinks the round stake is the original post set there by the surveyors, that it looks to him like it, and that it is in the same location in which the original post was set. He testified that when the original post was placed at this corner by the surveyor in 1882 there was a stump 18 inches in diameter and 12 or 14 feet high 18 inches north of the post, and another large stump 3 feet south of the post, and that the surveyor and his assistants measured the distances from the post to these stumps and blazed them. The stumps still remain upon the ground. No other witness testified that he knew the round stake to be the original post. Several stated that they had seen the stake, in the place where it now stands, at various times between the survey in 1882 and the time of the trial. One of the defendant’s witnesses testified that in 1896 he found a stake at this corner about 2feet high and 5 or 6 inches square, but that on July 9, 1898, he looked for it at the same place but could not find it. No other material evidence upon the issue of the identity of the round stake with the original post set at corner 3 appears in the record. It is assigned as error that in this state of the evidence the court refused to grant the request of the defendant to instruct the jury “that a post which is round, blazed on one side, and bearing lead-pencil marks or figures, not set in the ground, but set up in a mound of stones, does not fulfill the description of a post which calls for a post four inches square, four feet long, set two feet in the ground, and having the number of the corner and the number of the survey cut into said post,” and that the court on the contrary charged the jury “that a stake such as described by the witnesses m this case as located at corner No. 3 is sufficient to meet the calls of the patent.” The description of the land in controversy in the patent is copied from and founded upon the field notes of the survey of the claim which were introduced in evidence by the plaintiff, so that, as far as the question here presented is concerned, the case stands as though the field notes were written into the description of the patent. Before entering upon the discussion of the specific issue to which our attention is first challenged, it may be well to recur for a moment to the rules for the application of a description in a patent or in a deed to the land to which it refers. A plain and unambiguous description in a written conveyance can no more be contradicted or modified by parol evidence than any other part of a written .agreement. It is only when a patent ambiguity arises in the description itself, or in the application of it to the land, that evidence aliunde becomes admissible for the purpose of fitting the description to the ground to which it refers and of removing uncertainty. When the monuments called for in a conveyance do not correspond with the courses and distances there recited, such an ambiguity necessarily arises, and parol and other evidence is then admissible to remove it. In cases of this character the original monuments called by the patent, if they still remain in place, prevail over the courses and distances noted in the description. If the monuments called have been lost or removed, the places where they were — 672 — originally located may be shown by parol or other competent evidence, and, if proved to the satisfaction of the jury by a fair preponderance of evidence, these original locations will prevail over the courses and distances, and control the application of the description to the land. Robinson v. Kime, 70 N. Y. 147, 154; Lodge v. Barnett, 46 Pa. 485; Wendell v. People, 8 Wend. 190, 22 Am. Dec. 635; Jackson v. Widger, 7 Cow. 723; Pernam v. Wead, 6 Mass. 131; Lessee of McCoy v. Galloway, 3 Ohio, 282, 283, 17 Am. Dec. 591; Bagley v. Morrill, 46 Vt. 94, 100; Opdyke v. Stephens, 28 N. J. Law, 83, 89. If the monuments are lost or removed and their original locations are not established by competent proof, the courses and distances prevail, and control the description. Parol evidence, however, is incompetent to substitute a different monument for one clearly called by a deed or patent, or by the survey upon which it is founded, because that course of proceeding would violate the settled rule that written contracts may not be contradicted or modified by oral evidence. It is not competent to create an ambiguity by changing the written description by parol evidence, and then to proceed to apply the changed description to the land by the rules of law and evidence to which reference has been made, which are applicable only to conveyances which are in theiñselves ambiguous, or become so in their application to the ground. Bruckner’s Leesee v. Lawrence, 1 Doug. 19, 25, 27-36; Bagley v. Morrill, 46 Vt. 94, 100; Drew v. Swift, 46 N. Y. 204, 209; Pollard v. Shively, 5 Colo. 309, 315; Lessee of McCoy v. Galloway, 3 Ohio, 282, 283, 17 Am. Dec. 591; Claremont v. Carlton, 2 N. H. 369, 9 Am. Dec. 88. The patent in the case before us disclosed no ambiguity, and presented no conflict between its courses and distances and any monument for which it called at corner No. 3, because it specified no monument at that corner. There was therefore no excuse for parol evidence on the face of the patent, and the courses and distances. which it contained were prima facie controlling and consistent with themselves. Thereupon counsel for the plaintiff introduced in evidence the field notes of the survey, and read them into the patent for the purpose of raising the requisite ambiguity upon which its cause of action rests. These field notes recite that the monument at corner No. 3 was “a post 4 ins. square, 4 ft. long, set 2 ft. in ground, marked 3-2309,” that these numbers were cut into the post, and that it stood at a place where no reference points were available. This description imported no ambiguity into the patent, unless the post there described could be found, or unless its original location could be proved to be at some other point than at the place where the courses and distances located the corner. In order to prove that there was such a stake at such a place, and in order to create the ambiguity which did not otherwise exist, the plaintiff introduced testimony that a round stake 4 inches in diameter, with two blazes, the later on the side of the earlier, with the figures “3-2309” written in pencil upon it, but without any figures cut into it, stood between two available reference points 28 feet northwest of the position of the corner as indicated by the courses and distances, and the court instructed the iury that the latter stake satisfied the description of the corner post. Stakes in themselves are generally similar. The descrip — 673 — tion contained in the word “stake” or the word “post” segregates no stake or post from others of similar character. The distinguishing characteristics of the post described by the surveyor in his field notes were not the material of which it was made, its length, or its size. They were its peculiar shape, and especially the marks he put upon it for the express purpose of identifying it and setting it apart from all others. The post was squared, and the figures “3-2309” were cut into it to forever distinguish it from all other pieces of wood, just as these marks on the stakes at corners 1 aiid 2 have clearly and conclusively identified them. If this round blazed stake with its fading pencil marks upon it stood near the post at corner 2, no one would hesitate for a moment to say that it was not the square post with its carved figures described in the surveyor’s notes. The post at corner 3 described in the notes was square. That which the owner of the land found and testified concerning was round, with two blazes of evidently different dates upon one side of it. The figures “3-2309” had been cut into the former. No figures had been cut into the latter, but the figures “3-2309” had been written upon it with a lead pencil. The former stood where no reference points were available; the latter where two excellent references were within four feet of it. The latter had none of the distinguishing marks and did not satisfy the description of the former, and the instruction of the court to the contrary cannot be sustained. Its effect is to import an ambiguity into a conveyance where none existed before, by changing the written description in the patent and field notes by oral evidence. Its effect is to strike out of the patent and field notes the description of the square post marked by the figures "3-2309” cut into it, and to write into them the description of the round blazed stake inscribed with the figures “3-2309” by means of a lead pencil, and in this way to violate the settled rule that written conveyances may not be modified or contradicted by parol. The next question presented relates to the cross-examination of McNeece, the owner of the claim. He testified on his direct examination that he was present and saw the stake set when the survey for patent was made, that the round stake with the blazes and pencil marks is in the same place in which the surveyor set the original post for corner No. 3, and as follows: “Q. Describe the manner in which the monuments were set. A. We drove •down a stake here [indicating on map], and piled a pile of rock around it; the same with this stake here, and the same with No. 3, and the same with No. 4.” After he had testified on cross-examination that the original monument which marks corner number 4 of the Kokomo claim, which the field notes of the Fortune claim declare bears north 2 degrees 5 minutes east 196 feet from corner No. 4 of the Fortune, is still standing, and after he had testified that, when the survey of the Fortune was made, the surveyors measured the distance from comer No. 3 to two stumps near it and blazed them, he was asked on cross-examination, “Did they measure the distance from that corner No. 4 at the time they set it in the patent survey to corner No. 4 of the Kokomo?” and the court sustained an objection to the question, and refused to permit the witness to answer it. The fact was that if corner No. 4 of the Fortune was 196 feet distant from corner No. 4 of the Kokomo, then that corner was — 674 — about 300 feet from the place where the defendant claimed, and the courses and distances located corner No. 3, and about 325 feet from the round stake which this witness had testified marked that corner. Hence, if the surveyors measured the distance from corner No. 4 of the Fortune to corner No. 4 of the Kokomo, that fact tended much more strongly to show that McNeece was mistaken in his testimony to the effect that the round stake was at the location of the original monument than if the surveyors had simply calculated that distance. Many arguments are urged upon us by counsel for the plaintiff for the purpose of sustaining this ruling. They say, that permission to answer this question was discretionary with the court below, and that its refusal was no abuse of discretion; that the answer to the question would have established an affirmative defense; and that the refusal to permit the introduction of the answer was not prejudicial to the defendant because it might have made the owner of this property its own witness and then have asked him the same question; and that in any event the expected testimony was only cumulative. But a fair and full cross-examination of a witness upon the subjects of his examination in chief is the absolute right, and not the mere privilege, of the party against whom he is called, and a denial of this right is a prejudicial and fatal error. It is only after the right has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary with the trial court. Gilmer v. Higley, 110 U. S. 47, 50, 3 Sup. Ct. 471, 28 L. Ed. 62; Chandler v. Allison, 10 Mich. 460, 473; Heath v. Waters, 40 Mich. 457, 471; Sperry v. Moore’s Estate, 42 Mich. 353, 361, 4 N. W. 13; Martin v. Elden, 32 Ohio St. 282, 287; Wilson v. Wagar, 26 Mich. 452, 456, 458; Reeve v. Dennett, 141 Mass. 207, 6 N. E. 378; Taggart v. Bosch (Cal.) 48 Pac. 1092, 1096; New York Iron Mine v. Negaunee Bank, 39 Mich. 644, 660; Jackson v. Feather River W. Co., 14 Cal. 19, 24; Wendt v. Chicago, St. P., M. & O. Ry. Co., 4 S. D. 476, 484, 57 N. W. 226. The converse of this rule is equally controlling. In the courts of the United States the party on whose behalf a witness is called has the right to restrict his cross-examination to the subjects of his direct examination, and a violation of this right is reversible error. If the cross-examiner would inquire of the witness concerning matters not opened on the direct examination, he must call him in his own behalf. Houghton v. Jones, 1 Wall. 702, 706, 17 L. Ed. 503; Montgomery v. Ætna Life Ins. Co., 97 Fed. 913, 916, 38 C. C. A. 553, 557; Safter v. U. S., 87 Fed. 329, 330, 31 C. C. A. 1, 2; Mine & Smelter Supply Co. v. Parke & Lacey Co., 107 Fed. 881, 884, 47 C. C. A. 34, 36; McCrea v. Parsons, 112 Fed. 917, 919, 50 C. C. A. 612, 614; Merchants’ Life Ass’n v. Yoakum, 98 Fed. 251, 260, 39 C. C. A. 56, 65; Sauntry v. U. S., 117 Fed. 132, 135, 55 C. C. A. 148, 151; Goddard v. Crefield Mills, 75 Fed. 818, 820, 21 C. C. A. 530, 532; 1 Greenleaf, Ev. § 445; 8 Enc. of Pl. & Prac. 104; Hopkinson v. Leeds, 78 Pa. 396; Fulton v. Bank, 92 Pa. 112, 115; People v. Edwards (Cal.) 73 Pac. 416; People v. Keith (Cal.) 68 Pac. 816; Stevens v. Walton (Colo. App.) 68 Pac. 834, 835; People v. McLean (Cal.) 67 Pac. 770, 771; Acklin v. McCalmont Oil Co. (Pa.) 50 Atl. 955, 956; State v. Hawkins (Wash.) 67 Pac. 814; Bowsher v. Chicago, B. & Q. R. Co. (Iowa) 84 N. W. 958, — 675 — 960; Missouri Pac. R. Co. v. Fox (Neb.) 83 N. W. 744, 752; Boucher v. Clark Pub. Co. (S. D.) 84 N. W. 237, 240; Stubbings v. Curtis (Wis.) 85 N. W. 325, 327; Rake Erie & W. R. Co. v. Miller (Ind. App.) 57 N. E. 596, 598; State v. Savage (Or.) 60 Pac. 610, 615; Baker v. Sherman (Vt.) 46 Atl. 57, 62; Pennsylvania Co. v. Kennard Glass & Paint Co. (Neb.) 81 N. W. 372, 376, 377; Posch v. Southern Electric R. Co., 76 Mo. App. 601; People v. Dole (Cal.) 55 Pac. 581, 585, 68 Am. St. Rep. 50; State v. Ballou (R. I.) 40 Atl. 861, 862; Fisher v. Porter (S. D.) 77 N. W. 112, 114; State Bank v. Waterhouse (Conn.) 38 Atl. 904, 908, 66 Am. St. Rep. 82; East Dubuque v. Burhyte (Ill.) 50 N. E. 1077, 1078; Ernst v. Estey Wire-Works Co. (Sup.) 46 N. Y. Supp. 918, 920; Thalheim v. State (Fla.) 20 South. 938, 946; Devine v. Railway Co. (Iowa) 69 N. W. 1042; Crenshaw v. Johnson (N. C.) 26 S. E. 810. The reason of the rule is that a witness during his cross-examination is the witness of the party who calls him, and not the witness of the party who cross-examines him. Wilson v. Wagar, 26 Mich. 457, 458; Campau v. Dewey, 9 Mich. 417, 418. The cross-examiner has the right to bind his opponent by the testimony of the witness upon cross-examination relative to every subject concerning which his opponent examined him in the direct examination. But he has no right to bind his opponent by the testimony of the witness during the cross-examination upon subjects relative to which his opponent did not inquire. If the cross-examiner would investigate these subjects by the testimony of the witness, he may and he must make him his own witness, and stand sponsor for the truth of his testimony. It is discretionary with the court to permit the cross-examiner to do this at the time he is conducting the cross-examination, because the time and the manner of the trial are within the discretion of the court. It is discretionary with the trial court to permit leading questions to be put to a hostile witness upon his direct examination. But in the federal courts the line of demarcation which limits a rightful cross-examination is clear and well-defined, and it rests upon the reason to which attention has been called. It is the line between subjects relative to which the witness was examined upon the direct examination and those concerning which he was not required to testify. It exists because within that line the party who calls the witness stands the sponsor for the truth of his testimony, while without that line he does not. It does not vary, at the discretion of the court, with any convenience or necessity of court or counsel, because no convenience or necessity can be conceived of which would not enable the cross-examiner to make the witness his own, and because to subject the rule to the discretion of the court or counsel is to abrogate it. On the other hand, the right of cross-examination upon the subjects opened by the direct examination is invaluable, and it should be carefully preserved. Under the English and American systems of jurisprudence the opportunity to exercise the right of cross-examination is a condition precedent to the reception of the direct evidenqe of the witness. Heath v. Waters, 40 Mich. 457, 471; Sperry v. Moore’s Estate, 42 Mich. 353, 361, 4 N. W. 13. The right of cross-examination is the great safeguard against fraud, false statements, and half truths resulting from statements of parts, and omissions of other parts, of — 676 — conversations and transactions, which are frequently more misleading and dangerous than direct falsehoods. It furnishes the cardinal and most effective means to discover and disclose the whole truth in all judicial investigations. It extends to the eliciting of every fact relative to the matters recited in the direct examination which either conditions, qualifies, or weakens the statements there made, or supplies any omission in the earlier testimony of the witness concerning the subjects there treated. Martin v. Elden, 32 Ohio St. 287; 1 Thompson on Trials, § 406. The testimony given by a witness on his cross-examination is the evidence of the party in whose behalf he is called, and not that of the party on whose account the cross-examination is conducted. The former, and not the latter, is bound by the evidence elicited upon the cross-examination. Wilson v. Wagar, 26 Mich. 457, 458; Campau v. Dewey, 9 Mich. 417, 418. Hence it is no answer to a refusal to permit a full cross-examination that the party against whom the witness was called to testify might have made him his own witness and then have propounded to him the questions to which he was entitled to answers upon the cross-examination. “No one is required to make his adversary’s witness his own to explain or fill up a transaction he has partially explained already.” He has the right to bind his adversary by the truth elicited from his own witness. Chandler v. Allison, 10 Mich. 460, 473; New York Iron Mine v. Negaunee Bank, 39 Mich. 644, 660. Nor is it any answer to the refusal to permit a cross-examination of the character of that here in question that it would develop an affirmative defense. If upon the direct examination a witness is led to disclose a part of a single conversation or transaction the whole of which constitutes an affirmative defense or a counterclaim, that fact does not deprive the defendant of his right to prove the entire conversation or transaction by the same witness upon his cross-examination. Moreover, the rule which prohibits the proof of affirmative defenses upon cross-examination relates to those only which are pleaded by the party adverse to him who call's the witness. It never applies to a cross-examination by which the adverse party simply seeks to disprove, weaken, or modify the case against him which the witness himself has made. Wendt v. Chicago St. P., M. & O. Ry. Co., 4 S. D. 476, 484, 57 N. W. 226; Jackson v. Feather River W. Co., 14 Cal. 19, 24. The defendant in this case pleaded no affirmative defense and no counterclaim, and its aim upon the cross-examination was to disprove by the witness Mc-Neece the case which that witness had made against it by requiring him to relate the entire transaction, a portion of which he had recited upon his direct examination. The rule which the plaintiff invokes here is inapplicable to the case in hand. The testimony which the defendant sought to elicit was not cumulative, because no other witness testified, and no other knew, so far as this record discloses, whether or not the surveyors measured the distance from corner 4 of the Fortune to corner 4 of the Kokomo when they set the monuments. Nor, if it had been cumulative, would that fact have deprived the defendant of its right to elicit the testimony on a proper cross-examination from the plaintiff’s witness for whose testimony the Fortune company stood sponsor. One is not deprived of his right of cross-examination by the fact that he may be able to obtain tes — 677 — timony tending to establish the facts he seteks from his own witnesses. If he were, the right of cross-examination would in the large majority of cases cease to be. A party has the right, if he can do so by proper cross-examination, to prove the facts he relies upon by the cross-examination of the witness of his adversary, by whose testimony the latter is concluded, although he may.be able to introduce other witnesses to establish the same facts. None of the reasons why its witness should not have answered the question propounded to him which counsel for the plaintiff urged upon us commend themselves to our judgment. They had requested Mc-Neece on his direct examination to describe the manner in which the monuments were set when the survey for the patent was made, and he testified to the method of the survey and to the setting of each of the four posts in its place. Upon cross-examination he testified, readily and without objection, about the setting of the posts and the measurements made by the surveyors, until he came to the question whose answer seemed likely to tend to weaken or disprove the case made by his direct testimony, and there he was stopped by the objection of counsel for the plaintiff. The question which he was asked related to the subject of his direct examination, to the res gestee which he had in part there related, and it tended to qualify and weaken the case which his direct testimony had made. Under all the rules it fell far within the pale of the right of cross-examination, and the refusal of the court to permit the witness to answer it cannot be lawfully sustained. Nor can counsel escape a reversal of the judgment below upon the theory that, although this ruling was erroneous, it was not injurious to the defendant, and that for two reasons: In the first place, it is the general' rule of the federal courts that error produces prejudice, and that it cannot be disregarded unless it appears beyond a doubt that the error complained of did not prejudice and could not have prejudiced the rights of the party who assigns it. Boston & Albany Railroad v. O’Reilly, 158 U. S. 334, 337, 15 Sup. Ct. 830, 39 L. Ed. 1006; Deery v. Cray, 5 Wall. 795, 807, 18 L. Ed. 653; Gilmer v. Higley, 110 U. S. 47, 3 Sup. Ct. 471, 28 L. Ed. 62. In the second place, the presumption is that the answer to a question propounded would have been favorable to the party who asked it, that he would have followed the inquiry thus opened farther, and that his cause was prejudiced by the suppression of the investigation. Martin v. Elden, 32 Ohio St. 282, 287; Buckstaff v. Russell, 151 U. S. 626, 637, 14 Sup. Ct. 448, 38 L. Ed. 292; Atchison, Topeka & S. F. R. Co. v. Phipps, 125 Fed. 478,480, 60 C. C. A. 314. There is no escape from the conclusion that the ruling of the court which refused to permit the defendant to elicit an answer to the question he propounded upon cross-examination is -reversible error. If there were doubt relative to the question concerning this cross-examination which we have been considering, the terse and lucid opinion of Mr. Justice Campbell regarding it in Chandler v. Allison, 10 Mich. 460, 473, would persuade. He said: “Whenever an entire transaction is in issue, evidence which conceals a part of it is defective, and does not comply with the primary obligation oi the oath, which is designed to elicit the whole truth. If the witness were, as he always may be, requested to state what he knows about it, he would — 678 — not do his duty by designedly stopping short of it. Any question which fills up his omissions, whether designed or accidental, is legitimate and proper on cross-examination. When the answers are given, the nature and extent of the transaction becomes known from a comparison of the whole, and each fact material to a comprehension of the rest is equally important and pertinent. A party cannot glean out certain facts which, alone, would make out a false account, and save his own witness from the sifting process by which only those omissions can be detected. There could be no such thing as cross-examination if such a course were allowed; no one could, expose a fraudulent witness for his dishonest concealments; and every one who knew of such practices would be driven to the necessity of calling, in his own behalf, an adverse witness to show his ow.n concealments, whom, if perjured, he could not impeach. The absurdity of such a process is too plain to need pointing out. No one can be compelled to make his adversary’s witness his own to explain or fill up the transaction he has partially explained already.” The statutes of Colorado limited the width of the Fortune claim to 150 feet on each side of the center of the vein or crevice. 2 Mills’ Ann. St. Colo. § 3149. After the owner of the claim had testified that the original post at corner 3 was located where the round blazed stake was standing, a point about 23 feet farther north than the location of that corner indicated by the remaining monuments and the courses and distances, and after he had testified that the corner posts placed at the time of the survey for patent were set at about the same places as the corner stakes driven at the time of the original location of the claim, and after he had testified to the location of his discovery shaft, counsel for the defendant offered in evidence the original location certificate of the claim, dated June 7, 1880, ánd two amended certificates, one dated December 22, 1881, and the other February 15, 1882, all signed by the witness, and these certificates were rejected upon the ground that they tended to contradict the terms of the patent. But the offer of these certificates was not made to contradict or vary any of the terms of the patent, but simply to weaken and rebut the case made by the witness who had, by his own testimony that the original monument which marked corner 3 was about 23 feet farther north than the description in the patent located it, raised an ambiguity which both parties were endeavoring to make certain by evidence. The amended location certificates made and signed by this witness and others within two months of the survey for patent, to which he had testified, recited, one that the locators claimed 1,500, and the other that they claimed 1,465, lineal feet along the Fortune lode, together with 150 feet on the north side and 150 feet on the south side of the middle of said vein at the surface, and all veins, lodes, ledges, or deposits, and surface ground within the lines of said claim 395 feet running north 88 degrees 30 minutes west (according to the December certificate), and north 88 degrees 48 minutes west (according to the February certificate), from center of discovery shaft, and 1,100 feet running south 88 degrees 30 minutes east (according to the December certificate), and 1,070 feet running south 88 degrees 48 minutes east (according to the February certificate), from the center of the discovery shaft. The difference in the courses recited in the two certificates was insufficient to affect their evidence, and it is plain that, if the line runing east from the center of the discovery shaft described in these certificates intersected the east line of the claim at a point about 175 feet south of the round stake, that fact would tend to prove that — 679 — the witness McNeece was mistaken in his testimony that this stake was at the place where the original monument was located, while, if that line would intersect the east line of the claim about 150 feet south of the round stake, that fact would tend to corroborate his evidence. The certificates were offered to establish the former fact, not to contradict, but to corroborate and sustain, the description in the patent and in the field notes, and to rebut the testimony of this witness by which the plaintiff was seeking to apply them to a tract of land which upon their face they did not describe. The evidence was competent and material for the purpose for which it was offered, and it should have been received. The result of our examination of this record is that this case must be again tried. At the coming trial two important issues may be presented: First, whether or not the round stake stands in the same place in which the square carved post called for by the field notes as the mark of corner No. 3 was originally located; and, second, whether the defendant intentionally or innocently took ore from the plaintiff’s claim. Upon the first issue the location of corners 3 and 4 by means of the monuments at corners 1 and 2 and the courses and distances described in the patent and in the field notes, run both forward and backward from corners 1 and 2, the relations of the disputed corners and lines upon the two theories advanced by the respective parties to the various ties and references in the patent and in the field notes of the Fortune claim, the testimony of the witnesses who knew the location of the original monuments, and other evidence which directly tends to prove or disprove the theory of either party, should be received. Upon the second issue evidence of the knowledge and information which the managing officers of the defendant had relative to the location of the disputed lines and corner before and during the removal of the ore, evidence of their relevant acts and omissions during this time, and testimony of their intent and purpose in taking the ore, will be competent evidence. The measure of damages for the reckless, willful, or intentional taking of ore from the land of another without right is the enhanced value of the ore where it is finally converted to the use of the trespasser. The measure of damages for wrongfully taking ore from the land of another through inadvertence or mistake, or in the honest belief that one is acting within his legal rights, is the value of the ore in the mine. The wrongful taking of the ore, in the absence of all other evidence, raises a presumption of fact that the trespasser took it intentionally and willfully. This presumption, however, is a disputable one, which evidence may so completely overcome that it will become the duty of the court to instruct the jury that it cannot prevail. The trespasser may overcome it, and may limit the recovery against him to the lower measure of damages, by proof presented on behalf of the owner, or on his own behalf, that he took the ore unintentionally, in good faith, in the honest belief that he was lawfully exercising a right which he possessed. When this issue is presented for determination, the question is, did the trespasser take the ore from his neighbor’s land recklessly, or with an actual intent to do so, or inadvertently or unintentionally, or in the honest belief that he was exercising his own right? If the former he was a willful trespasser, if the latter he was an innocent trespasser, within the meaning of the rule relative to the measure of damages. U. S. v. Homestake Min. — 680 — Co., 117 Fed. 481, 482,485, 486, 54 C. C. A. 303, 304, 307, 308; Golden Reward Min. Co. v. Buxton Min. Co., 97 Fed. 413, 422, 38 C. C. A. 228; St. Clair v. Cash Gold Min. & Mill. Co. (Colo. App.) 47 Pac. 466, 468, 469. The rules upon this subject have been again stated, because some discussion has arisen at the bar whether or not a jury may lawfully infer that a trespass was willful and intentional from the single fact that the trespasser failed to exercise ordinary care in ascertaining the limits of his victim's land or rights. Our answer is that the wrongful taking raises the presumption of an intentional and willful trespass, and that ñégligence in ascertaining the limits of the land or of the rights of the owner is competent evidence upon the issue, but that negligence which amounts to mere inadvertence, without evil intent or recklessness, is not in itself sufficient proof to sustain a finding of fraud, bad faith, willfulness, or evil intent in committing the trespass. In Durant Min. Co. v. Percy Consol. Min. Co., 35 C. C. A. 252, 253, 93 Fed. 166, 167, this court held that a jury was not required to find a trespass to be willful from the negligence of the trespasser in ascertaining the line between his own property and that of the owner whose ore he took; and we said, in the course of the discussion of that question, that “a jury may lawfully infer that a trespasser had knowledge of the right and title of the owner of the property upon which he entered, and that he intended to violate that right, and to appropriate the property to his own use, from his reckless disregard of the owner’s right and title, or from his failure to exercise ordinary care to discover and protect them.” It was not, however, our intention to hold that lack of ordinary care alone would justify a finding that a trespasser was guilty of that bad faith, fraud, knowledge, or intent which renders him liable for the higher measure of damages, or to go farther than to intimate that the negligence of the trespasser, like all his other acts and omissions, is competent evidence for the consideration of the jury in determining the real issue whether his trespass was intentional or reckless on the one hand, or inadvertent or innocent on the other. While mere negligence which is synonjmous with inadvertence will not alone sustain a finding of willful trespass, one may be “so far negligent as to justify an inference that he acted knowingly and intentionally” and to warrant a jury in finding his trespass willful. Golden Reward Min. Co. v. Buxton Min. Co., 97 Fed. 413, 422, 38 C. C. A. 228, 238. An intentional or reckless omission to exercise care to ascertain the boundaries of his victim’s land or rights, for the purpose of maintaining ignorance regarding them, or a reckless disregard of them, is as fatal to the claim of a trespasser to limit the recovery of damages against him to the lower measure as an intentional and willful trespass. These rules and principles, applied to the evidence to be produced upon the coming trial, will, we trust, result in a fair and impartial hearing of the issues presented, and a just and- righteous judgment. The judgment below is reversed, and the case is remanded for a new trial.