#### Campbell, appellant, *v.*Rankin, respondent.

Evidence — *test proof of location and possession of mining claim.*C. brought this action to recover damages for a trespass upon a mining claim in a certain gulch. Before the trial C. moved for a continuance, and offered an affidavit in support of his motion, showing that the written laws of the gulch had been destroyed; that the laws regulated the location and holding of the claim in controversy, and defined its boundaries; and that the predecessors in interest of C. owned and possessed the claim under these laws, which were then in force. At the trial, C. offered oral testimony to prove that he owned and possessed the claim; that B. trespassed thereon, and admitted that there was such a claim, and that he knew where the claim was, and was upon it on a certain day. C. also offered some j udg-ments and deeds. The testimony was excluded by the court. *Held,*that the court can direct the order of proof and require the best evidence to be produced before any other testimony is submitted. Held, also, that the affidavit for the continuance disclosed the best evidence that could be produced at the trial by 0., and that the court properly rejected the testimony of 0. at the time it was offered.

*364Estoppel by judgment when many issues of pact abe submitted to JURY. At the trial, C. offered in evidence the judgment entered in his favor in an action commenced by B. against C. to recover the possession of a mining claim in Confederate gulch and $250 damages. 0. maintained that the same property was involved in hoth cases, and that B. was estopped from denying that C. owned it. It appears from the pleadings that B. was required to prove that he was the owner of the claim, or entitled to its possession, and that C. wrongfully entered thereon and took and withheld its possession from B. The court excluded the evidence-*jSeld,*that a judgment which has heen rendered in an action that has heen tried upon its merits is a bar to another suit between the same parties, or their privies for the same cause. *Held,*also, that the judgment offered *by*C. may have heen based upon one of a number of questions of fact, and is not conclusive upon any of them in this action, when there are no means of determining upon which the verdict has been found.

*Appeal from Third District, Meagher County.*

The case was tried before "Wade, J.

W. E. CulleN and Shober & Lowry, for appellant.

The judgment roll in *Rankin*v. *Campbell et al.*is conclusive of the issues in tbis action and should have been admitted in evidence. Starkie’s Ev. (8th ed.) 323; Smith’s L. C. 424; Freeman on Judgt., §§ 252,302, 249.

In that case the issue made by the pleadings relates to the title and right of possession of the premises in controversy. A verdict for the same cause of action between the same parties is conclusive. The cause of action is the same when the same evidence will support both actions. Freeman on Judgt., eh. 12, and cases cited; *Wood*v. *Jackson,*8 Wend. 9; Starkie’s Ev. 334. The judgment in *Ramikin*v. *Campbell et al.*was proper testimony under the general issue, if it was not a perfect estoppel.

A party may introduce his proof in his own order. *Palmer*v. *McCaferty, 15*Cal. 334.

It was proper to introduce in evidence a deed under which appellants had actual possession of the ground in dispute. 2 Greenl. Ev., §§ 298, 299.

Appellants need not show that their possession was according to local laws. Like the vendee under a deed, appellants should have been allowed to make a *prima facie*ease upon possession. This *365is enough until it is shown that the possession is wrongful. *Penn. M. Co.*v. *Owens,*15 Cal. 136; *English*v. *Johnson,*17 id. 119. The possession of appellants must be presumed to be rightful and is sufficient to maintain this action.

The court erred in excluding evidence of the possession of the premises by appellants and the laws of German district, and the judgment roll in *Campbell*v. *Ford.*Damages to the property in controversy were recovered by the predecessors of appellants in that action in which respondent was the real party in interest.

The admissions of respondent that there was such a claim as that described in appellants’ complaint, and that appellants were the owners of it, were clearly competent. 1 Greenl. Ev. 51; 1 Starkie’s Ev. 90; 1 Phillips’ Ev. 89.

Chumaseeo & ChadwioK and Toole *&*Toole, for respondent.

Appellants should have described the ground in controversy by metes and bounds. *Hess*v. *Winder,*30 Cal.' 349 ; Civ. Pr. Act, § 66; Cod. Sts. 389, § 1.

The description in the complaint is insufficient and the evidence offered was incompetent under the issues. *English*v. *Johnson,*17 Cal. 119 ; *Coryell*v. *Cain,*16 id. 573; *Attwood*v. *Ericot,*17 id. 37; Tale Min. Laws, 61.

The appellants’ affidavit for a continuance showed that the ground was within an organized mining district and held under miners’ rules. Respondent could introduce no proof until they showed that there was a tract known as *“*claim No. 2, Green Horn gulch.” Tale’s Min. Laws, 61-6; *Line F. Co.*v. *Oregon Co.,*7 Cal. 40 ; *Table M. T. Co.*v. *Stranahan,*20 id. 198; *Eing*v. *Edwards,*1 Mon. 235. No testimony could be admitted until this was proved.

The deed was properly excluded. *'Hicks*v. *Colemcm,*25 Cal. 134; *Hess*v. *Winder,*30 id. 358.

The judgment roll in *Pankin*v. *Campbell et al.*was not *res adjudicata*of any of the rights in this case, and was therefore excluded. *Kennedy-*v. *Scovil,*14 Conn. 70, and authorities above cited.

The receipt of evidence out of its proper order is within the discretion of the court. Its reception or rejection is not error un*366less there is an abuse of this discretion. *Lick*v. *Diaz,*37 Cal. 437; *Orosett*v. *Whelan,*44 Cal. 200.

As to estoppel by record generally, see Freeman on Jndgt., §§ 250-264; *Lentz*v. *Victor,*17 Cal. 274; *Flandreau*v. Downey, 23 id. 354; *Irvine*v. *Adler,*44 id. 560.

BlaKE, J.

The appellants bring this action to recover damages for an alleged trespass upon placer mining property. They allege in their complaint that they are the owners and possessors of *“*what is known and designated as claim number two below discovery in Green Horn gulch, Meagher county, Montana Territory-.’5 They describe the premises as follows : *“*Commencing at the intersection of the rim rocks of Green Horn gulch with Confederate gulch, and extending up said Green Horn gulch to the lower line of what is known as claim number one below discovery in Green Horn gulch, a distance of about two hundred feet, and embracing said distance the entire channel of said Green Horn gulch from rim rock to rim rock of said gulch.” It is alleged that the respondent committed the trespass upon a portion of-this property.

The answer denies specifically the averments of the complaint, the existence of the claim therein described and that the same had any description or boundary. Before the action was tried, the appellants made a motion for the postponement of the trial and offered in its support the affidavit of one of the appellants* It sets forth that the appellants can prove by a certain witness that the original written records and laws of said Green Horn gulch had been destroyed; that the size and manner of locating and holding the claims in said gulch were established and controlled by said records and laws; that the records *“*showed the size, lines, boundaries and location of claim numbered two below discovery in said gulch,” and that the records “ further showed that the predecessors in’ interest of these plaintiffs took up, possessed, held, owned and occupied said claim in accordance with the local rules and regulations of miners then in force in said gulch.”

The evidence offered by the appellants was excluded at the trial and the exceptions to this ruling of the court are before us for review. The oral evidence tended to prove that on a certain day *367one of tbe appellants was on *“*claim No. 2 in Green Horn gulch below discovery;” that he knew where the claim was situated and had been in the possession of it several years ; that he had had a conversation with the respondent, who had admitted that there was such a claim; that the appellants were the owners of the claim and the respondent had trespassed on the same; that there was a claim known as claim number two below discovery in Green Horn gulch, and that the appellants had been in its possession under certain deeds.

The written evidence comprised the judgment rolls in the cases of *Rankin*v. *Campbell et al.,*and *Campbell et al.*v. *Ford et al.,*the laws of the German mining district, and a deed to some of the appellants and. their predecessors in interest. The action of *Rankin*v. *Campbell et al.*was brought to recover damages for an alleged trespass upon the gulch portion of the mining claim numbered eight in Confederate gulch, which all the parties conceded was located in the German mining district. Campbell *et al.,*the defendants, averred that it was known as claim numbered two below discovery in Green Horn gulch. Judgment was entered for Campbell *et al.,*who did not pray in their answer for affirmative relief. In *Campbell et al.*v. *Ford et al.,*the plaintiffs recovered damages against the sureties upon the injunction undertaking given in *Rankin*v. *Campbell et al.*Some of the facts appear in the reports of these cases. *Rankin*v. *Campbell et al.,*1 Mon. 300; *Campbell*v. *Metcalf et al.,*id. 378. The deed purported to convey to some of the appellants property described as “ our mining claim No. 2, below discovery in Green Horn gulch, German district, Meagher county, Montana Territory.” The bill of exceptions states that the laws of the German district were offered as evidence to show that the dividing line between the claims in Confederate gulch and its tributaries is confined to the intersection of the rim rocks of the gulches.

The mining property mentioned in the complaint is not described by legal subdivisions, or metes and bounds, which are required by the Civil Practice Act, § 66. Hnder the issues made by the pleadings, the appellants could not recover if they failed to prove that they owned and possessed a certain tract of mining ground known as *“*claim number two, Green Horn gulch.” This *368court bas beld tbat tbe court in wbicb tbe action is tried can direct tbe order of proof, and we do not tbink tbat tbe rule will be doubted. *Griswold*v. *Boley,*1 Mon. 558.

It cannot be denied tbat most of tbe testimony wbicb was rejected at tbe trial was competent and relevant in .similar actions to establish tbe existence of tbe claim in controversy, and support tbe allegations of tbe complaint. But tbe appellants, in their affidavits filed with tbe motion for a continuance, disclosed tbe facts tbat have been referred to. They informed tbe court tbat this claim was within an organized mining district, and tbat their title and right of possession to tbe same were founded upon its written rules and customs. It is a legal presumption that these laws were in force in Green Horn gulch and tbe district including tbe mining claim of tbe appellants. *King*v. *Edwards, 1*Mon. 235. Tbe court could not ignore its knowledge of these facts, wbicb must control its discretion in tbe admission of testimony. Tbe appellants, by their voluntary conduct, determined tbe character of tbe evidence wbicb was demanded upon tbe trial. Tbe action of tbe court, under tbe circumstances, bas been defined clearly, and we will examine tbe rules governing its discretion in tbe direction, of tbe order of tbe proof.

Prof. Greenleaf states these conclusions: Tbe rules regulating tbe introduction of evidence require tbat tbe best evidence of which tbe case in its nature is susceptible must be produced. When it appears tbat “ better evidence is withheld, it is faff to presume tbat the party bad some sinister motive for not producing it, and tbat, if offered, bis design would be frustrated.” “ Until it is shown tbat tbe production of tbe primary evidence is out of the party’s power, no other proof of the fact is, in general, admitted.” 1 Greenl. Ev., §§ 82, 84. Tbe application of these elementary principles is decisive of this branch of tbe case. Tbe appellants never offered to introduce tbe written rules and customs of Green Horn gulch, or show tbat they bad been lost or destroyed, and tbe evidence tbat was excluded could not be substituted to prove tbe existence of tbe mining claim described as claim numbered two in this gulch. Tbe written rules and customs were tbe best evidence in this ease.

Tbe court ruled properly tbat no evidence of tbe possession of *369tbe property by tbe appellants, or declarations of tbe respondent 'regarding tbe same, could be admitted until tbe identity of tbe mineral ground bad been established by tbe highest testimony. Tbe deed does not contain a description which can aid tbe jury in ascertaining tbe boundaries of tbe claim, and was incompetent.

Tbe appellants contend that the judgment roll in *Rankin*v. *Campbell et al.*is conclusive of some of tbe issues in this action, and that tbe respondent is estopped from denying that tbe appellants are tbe owners of tbe property. It is maintained that tbe judgment entered in favor of Campbell *et al.,*in that cause, was made in a case which was tried upon its merits, between tbe same parties, and in which tbe same subject-matter was litigated as that under consideration. If this proposition is correct, that judgment would be a complete bar to another suit between the same parties or their privies for the same cause. *“*When a fact has once been put in issue and determined by a final judgment in tbe course of a judicial proceeding, such judgment is conclusive evidence of tbe existence of tbe fact in all controversies between tbe same parties in which it is material.” *Stockwell*v. *Silloway,*113 Mass. 385, and cases there cited; *Bigelow*v. *Winsor,*1 Gray, 301; *Foote*v. *Gibbs,*id. 412; *Jones*v. *Petaluma,*36 Cal. 230; *Boggs*v. *Clark,*37 id. 236; *Tracy*v. *Merrill,*103 Mass. 282, and cases there cited.

It appears from tbe pleadings, in *Rankin*v. *Campbell et al.,*that Rankin was required to establish by the testimony that be was tbe owner of a certain mining claim in Confederate gulch, or entitled to its possession; that tbe defendants wrongfully entered thereon and took and withheld its possession from him. The prayer of tbe complaint is for tbe possession of tbe property, $250 as damages and a temporary and perpetual injunction. There are other allegations in tbe complaint respecting tbe insolvency of Campbell *et al.,*which might be material if tbe court was asked to grant equitable relief. Tbe defendants prayed to be dismissed without day and for their costs, and no valid judgment could be rendered that they were entitled to tbe mining ground described in tbe pleadings. If Rankin failed to prove some of tbe material allegations referred to, Campbell *et al.*might obtain a judgment without offering any evidence. Rankin *370might baye tbe right of property and the defendants might have the right of possession. If the jury based the verdict upon the failure of the plaintiff to show that Campbell *et al.*withheld the possession of the premises from him, it cannot be contended that the question of ownership was decided. *Arnold*v. *Arnold,*17 Pick. 4.

. Does the judgment entered in *Rankin*v. *Campbell et al.*constitute an estoppel in this action *% We*think that the law determining this question has been announced in the following cases. In *Richardson*v. *Boston,*19 How. 263, Mr. Justice G-rier says: *“*The plea of the general issue, in actions of trespass or case, does not necessarily put the title in issue; and, although the judgment is conclusive as a bar to future litigation for the thing thereby decided, it'is not necessarily an estoppel in another action for a different trespass.” In *Burlen*v. *Shannon,*99 Mass. 202, Mr. Justice FosteR examines the authorities and says: *“*The ground taken by the defendant is, that a general verdict and judgment are conclusive in favor of the prevailing party as to all issues actually involved in the trial, upon which any evidence was offered and which were submitted to the jury, although it may not appear that they were the very points on which the decision turned, and it may be doubtful in favor of which party any one of them was found, or even whether as to all of them the jury came to any conclusion. Such, however, is not in our opinion the true doctrine of the law. A verdict and judgment are conclusive by way of estoppel only as to those facts which were necessarily involved in them, without the existence and proof or admission of which such a verdict and judgment could not have been rendered.” The argument of the appellants is the same as that submitted by the defendant in *Burlen*v. *Shannon, supra,*and refuted by the court. In *Lea*v. *Lea,*99 Mass. 496, the court says that “ there are no means of determining upon which of the three consistent grounds of defense the verdict was rendered ; and therefore it cannot be conclusive upon either.” Bige-low on Estoppel (2d ed.), 82, 88, and cases there cited; *Packet Co.*v. *Sickles,*5 Wall. 580 ; *Leonard*v. *Whitney,*109 Mass. 268. *We*are unable, to decide on which of the questions of fact submitted to the jury, in the case of *Rankin*v. *Campbell et al.,*the *371verdict was based, and do not think that the judgment is con-elusive upon any of them. The ownership and right of possession of the property in controversy are not necessarily involved in the determination of the action by the jury. The judgment roll was not competent testimony in this case. The suit of *Campbell et al.*v. *Ford et al.*was the effect of the judgment in the other action, in which the temporary injunction was dissolved, and its judgment roll could not affect the issues which were tried in this cause.

*Judgment affirmed.*