first delivered. The preponderance of evidence is that they were both delivered before acknowledgment, and that there was not more than an interval of a day between their delivThe Ford deed was acknowledged in January, 1857; Wilson's a month later-viz., in February, 1857. The Wilson deed was recorded in Tehama County, April, 1857; Ford's not until June, 1857.

The defendants are in possession of the land, claiming also under deeds from Gerke, made on the 6th and 10th of December, 1875; but when they obtained their deeds the plaintiff's deed was of record, and they knew that the plaintiff claimed the land.

However the fact may be as to the delivery of the Ford and Wilson deeds, the question remains whether the description in the Ford deed includes the land in dispute. The deeds were executed by the same grantor at the same time, and must be regarded as parts of one and the same transaction. In this view, the intention of the parties as to the lands which were intended to be conveyed becomes a material question. This should, if possible, be gathered from the deeds themselves, rather than by resorting to extrinsic evidence. If the lands conveyed are capable of identification by a construction of the deeds themselves, it will not be necessary to avail ourselves of evidence aliunde. "To give a proper construction to a description of property conveyed by deeds, the Court will place itself as nearly as possible in the position of the contracting parties; and their intent will be ascertained in the same manner as in the case of any other contract." (Kimball vs. Semple, 25 Cal. 440.) Reading these deeds together as parts of one transaction, one thing is found which is common to both-that is, both tracts of land, or the entire 5000 acres, were to be located between the southern line of the ranch and a northern line to be drawn from a point on the Sacramento River, at a distance of a Spanish league south of the mouth of Deer Creek, due east to the easterly boundary line of the ranch. And one thing is peculiar to the Wilson deed-that is, if there shall not be found between this northern line and the southern boundary line a sufficient quantity of land to make up 4500 acres after the location of the 500 acres, according to its description, then whatever might be necessary to make up the 4500 acres was to be taken from the southeast corner of the ranch. The Ford tract, according to its description, was to be "taken off of the southwesterly corner of the ranch," in a rectangular form, with a frontage on the Sacramento River of not more than one-half the depth of the tract.

Both tracts were therefore to front on the river, and south of a line to be drawn northwards from a point on the river one Spanish league south of the mouth of Deer Creek. But, according to the description in the Wilson deed, the 4500 acres were to be "taken off of the lower or most southerly portion of the ranch," extending its full width from east to west. There is no such description or call in the Ford deed. From its absence in this deed we infer that it must have been understood and intended between the parties that the Wilson deed should be first located, and that its position should be in the lower portion of the ranch, between the southern boundary line of the ranch and the southern line of the Ford tract. Wilson, in fact, immediately located his 4500 acres on that portion of the ranch so as to leave the Ford tract of 500 acres to the north of the 4500 acres, and south of the northern line a Spanish league south of the mouth of Deer Creek; and has been, with the acquiescence of all the parties to the deeds, from the date of his deed, in the possession of that portion of the ranch. Giving to the Wilson tract that location as its natural position, according to the calls of his deed, it follows that the 500 acres were to be located on the southwesterly corner of the ranch after the location of the Wilson tract. Ford never took possession of his land; but the land described in the complaint is situate on the southwesterly corner of the ranch with reference to the Wilson tract, and between the northern line of Wilson's land and the location of the northern line, drawn from a point on the Sacramento River, a Spanish league south of the mouth of Deer Creek, and is, we think, identical with the land described in the Ford deed.

The defendants cannot invoke the Statute of Limitations as a bar to the plaintiff's action, because, although the defendants are in possession, claiming adversely to the plaintiff, yet that possession commenced on the 6th day of December, 1875, when they entered under their deeds from Gerke, and this action was commenced on the 7th of February, 1876. Gerke, it is true, had been in possesssion of the land by himself and tenants from 1864 until he conveyed it to the defendants, and had cultivated it and paid the taxes upon it, but he never claimed to hold it adversely to Ford. The possession of the defendants cannot, therefore, be tacked on to that of their grantor so as to render adverse the possession prior to the time when they received their deeds. (McCracken vs. City of San Francisco, 16 Cal. 591.) And there being no adverse possession of the land for the period of time prescribed by the Statute of Limitations, it follows that

the cause of action was not barred. (Thompson vs. Pioche, 44 Cal. 517; Thompson vs. Felton, May 7, 1880.)

Order granting a new trial affirmed.
We concur: McKinstry, J., Ross, J.

DEPARTMENT No. 2.

[Filed July 29, 1880.]

No. 6958.

PHOENIX MILL AND MINING CO., RESPONDENT,

VS.

B. M. LAWRENCE ET AL., APPELLANTS.

INSTRUCTIONS. Judgment will not be disturbed because some of the instructions which were given are subject to mere verbal criticism.

PRACTICE. Judgment will not be reversed when errors in proceedings do not prejudice defendants.

Appeal from the Superior Court of San Bernardino County. Byron Waters, for respondent.

C. W. Allen and C. B. Hunt, for appellants.

MCKEE, J., delivered the opinion of the Court:

The action was against the defendant for an alleged unlawful entry on the 13th of May, 1879, upon "those certain leads, lodes, and mining property known as Beatrice No 1 and Beatrice No. 2, situated at Ivanpah, Clark Mining District, San Bernardino County," of which it was claimed the plaintiffs had peaceable possession until the day of the unlawful entry thereon by the defendants, and for more than five days before; and after their entry thereon the defendants refused, on demand, to restore the possession thereof to the plaintiffs.

The possession of the plaintiffs, the entry of defendants, and demand and refusal are specifically denied; but in a further answer the defendants admit that they entered in good faith upon the property on the 13th of May, 1879, believing that the ground was vacant and subject to location according to the laws of the United States and of Clark Mining District.

As to the possession of the plaintiffs, demand and refusal, and the entry by the defendants, the evidence was all one way. The defendants themselves in their testimony admit that the company had been in possession of the property since 1878, and that the company and its predecessor had

expended in tunneling, timbering, and building railroad tracks, dumps, and houses, and in cars and tools, several hundreds of thousands of dollars-probably, says the defendant Lawrence, half a million of dollars. In 1879 the company ceased work upon the mine for a while; but during the suspension of work it kept men in general superintendence over the property, and the keys of the houses were in their possession. Both defendants lived near the mine. Lawrence had worked on it for two years for the Ivanpah Company, of which the plaintiff is the successor. Peterson lived within two hundred yards of it, and on the day of their entry they knew that the mine was in charge of the men of the plaintiff, and that the keys of the houses were in their possession. The only issuable question was really the intention with which the defendants entered. They claimed in their answer that they entered in good faith, believing that the ground was vacant and subject to location according to the mining laws. But a person who knows that a mining claim is in the actual possession of another cannot honestly believe that it is vacant, and subject to entry and re-location; and the entry under such circumstances cannot be made in good faith, unless it is made upon some right or color of right, or claim of a legal right to make the entry. Such a claim of right must exist before the entry to constitute good faith in making the entry. If it does not exist, the entry is made without right or color of title, and is an entry in bad faith; for actual possession in another is prima facie evidence of title in the possessor, and is protected by the law against lawless invasion without right or color of right; but one who has a title and present right of possession may always take peaceable possession of what he claims to be his own. In Townsend vs. Little, 45 Cal. 673, the defendant, who was a qualified pre-emptor, and had filed a declaratory statement of her intention to pre-empt a tract of land which was shown to be part of the public lands of the United States, was allowed to introduce evidence of these things to show her belief of right and good faith in entering upon the land in dispute in that case. And in Powell vs. Lane, 45 Cal. 677, the defendant was allowed to show his patent as evidence of good faith in entering upon the land. (See also Dennis vs. Wood, 48 Cal. 368; Shelby vs. Houston, 38 Id. 422; Randall vs. Falkner, 41 Id. 242.)

But the defendants offered no evidence of right of title. They knew that the mine was in the possession of the plaintiff, and that half a million of dollars had been expended on it; and they admit that they entered upon it, not upon

the

faith of any title or right in themselves, but to take advantage of what they supposed to be a defect in the title of the plaintiff. For the defendant Lawrence, when asked if he believed that this mine was vacant land, answered as follows: "I did."

"Q.-How did you believe it had become such?

"A.-The reason I believed it was such, they cannot hold more than one mine on a ledge; a company of men cannot hold only one mine on a ledge; they have three locations on the same ledge.

"By the Court-Did you enter for the purpose of taking advantage of some defect you supposed there was in the title? "A.-Yes; and it did not belong to them; they could not hold it, and part of the company said it never belonged to them; they never disputed it.

66

'Q.-Then your only claim was that they wasn't allowed by law to hold them; they wouldn't be allowed by law to hold them?

"A.-Yes, sir.

Q.-You actually thought they had been holding them? "A.-I don't know as they held them; the McFarlanes held them.

Q.-Did you know that Billy McFarlane held them for this company?

"A. They had men there to work; I suppose they were working for the company.

Q.-Now, then, that was your idea as to how it was vacant land; that one company could not hold three claims on one ledge?

"A.-Yes, and they had four.

Q. And you thought they could not hold it; you thought they were yet trying to hold them?

"A. No, I did not. I had information that they had abandoned the whole work, and that the company had busted up.

'Q.-Which

"Q. Which did you rely upon? You tell us first one thing that they could not hold four locations on one ledgenow you tell us next that you believe the company had abandoned the mine. Now tell us which of these propositions you rely on.

"A.-I rely on both of them.

Q.-Both of them?

"A.-Certainly.

Q.-You relied on the company claiming more than they had a right to claim?