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§ 531. Licensee cannot maintain. Prior possession will support the action of ejectment, but a mere license, revocable at any time, on breach of condition, will not, as the licensee is not entitled to the possession.1 If the license is in the nature of a lease, so as to vest a permanent corporeal interest in the licensee, such as to entitle him to the possession of the land, then the action can be maintained, but this is not essentially a license, but rather a lease, for the definition of a license is a mere right given to the licensee by the owner of land to exercise some right in the land and this does not carry the possession."

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§ 532. When lessee can deny lessor's title. When a lessee has accepted the possession of land from the owner, as the latter's tenant, he will, in the absence of fraud or duress, be afterwards estopped from denying his lessor's title. All that is necessary to create the estoppel on the part of the lessee is to produce the lease in evidence on the trial of the cause and the fact of the tenancy having been established, it is not even necessary to prove the execution of

sion is wrongful and the plaintiff cannot make a title by prescription. Lambert v. Craig, 45 L. A. Ann.; s. c. 13 So. Rep. 701. "Plaintiff in ejectment for a mining claim can rest his recovery upon prior possession, and the action does not necessarily put in issue the legal title." Grady v. Early, 18 Cal. 100; M. M. D. 88. "Possession of a mining claim taken without reference to mining rules, is sufficient in ejectment for the claim, as against one entering by no better title, and not in compliance with any mining rule. It is simply prior against subsequent possession. English v. Johnson, 17 Cal. 108; B. & W. L. C. 172; M. M. D. 88.

1 Crocker v. Fothergill, 2 B. & Ald. 152; Mor. Min. Dig., p. 87.

2 Rynd v. Rynd Farm Oil Co., 63 Pa. St. 397; Karns v. Tanner, 66 Pa. St. 297; Beatty v. Gregory, 17 Iowa, 109.

3 Boone v. Stover, 66 Mo. 434. Ejectment will lie for the wrongful ouster of a tenant (of an oil well) notwithstanding the grant under the lease may have been of an incorporeal hereditament. Karns v. Tanner, 66 Pa. St. 297; M. M. D. 87.

the lease, for the lessee, having voluntarily taken under such deed, cannot afterward dispute its execution.1 There are many matters of defense, however, which are not barred by this estoppel, and many cases in which it does not arise at all. For instance, where the lessee has not exactly accepted the actual possession of the premises from the lessor, but the existence of the latter's title is indirectly admitted, as where the admission arises from the payment of rent or the like, the lessee always has the privilege to rebut the presumption arising from such payment, and can show that the payment was made through fraud or mistake. In fact, the rule preventing the lessee from denying the lessor's title, is subject to many qualifications, and the late cases go to the extent of permitting him to deny the lessor's title, in all cases where he was not admitted to possession by the lessor, without proof of fraud or mistake. But in all cases where the defense of fraud or mistake is set up, equity will investigate the circumstances of the particular case, and grant or refuse relief, as justice may require."

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1 Jackson v. Davis, 5 Com. 123; Taylor L. & T., § 707, and cases cited; Loring v. Harmon, 84 Mo. 123; McKissick v. Ashby, 98 Cal. 422; 33 Pac. Rep. 729; Suddord v. Robinson, 118 Neb. 286; 24 S. W. Rep. 151; Sexton v. Corley, 147 Ill. 269.

2 Jones v. Stone, A. C. 122; West Shore Mills Co. v. Edwards (Or.), 33 Pac. Rep. 987.

3 Or he may show that his landlord holds in violation of the laws of the State, or that the title is in a third party by whom he has been evicted. Taylor's Land. & Ten., § 708, p. 597 (7 Ed.); West Shore &c. Co. v. Edwards, 33 Pac. Rep. 987.

4 Taylor on Landlord & Tenant, pp. 305, 333 and 340. "The tenant of a mine cannot set up any outstanding title or government proprietorship against his lessor." Wilson v. Smith, 5 Yerger (Tenn.), 379; M. M. D. 200.

Wiggin v. Wiggin, 58 N. H. 235.

§ 533. Successful plaintiff entitled to profits. When one has demonstrated, by the action of ejectment, that he is entitled to the possession of certain premises, he may also recover the value of the use of the premises for the time that he was wrongfully excluded from the possession.1 The title of the plaintiff dates from the time when his right of entry first accrued. He could, at common law, recover mesne profits from any one who excluded him from possession, after his right of entry attached, and these profits could either be recovered in an action of trespass, or an action for use and occupation, if the tort is waived. But the plaintiff is entitled to recover for the use and occupation of the premises, for such time as he was wrongfully excluded from the possession, even though he may have recovered the possession without a legal action and although he may have entered into a contract for a sale of the premises to the party in possession and the latter was in possession at the time of the ouster. A recovery of mesne profits in an action of ejectment is no bar to an action of trespass quare clausum fregit, for the former action is for the use and occupation of the premises alone, while the latter is for injuries to the premises during the same period. But the action for use and occupation

1 Including rents and profits. Rives v. Mansfield, 96 Mo. 394. But a judgment for rents and profits cannot go against a defendant not in possession. La Rivere v. La Rivere, 97 Mo. 80.

2 Taylor's Land. & Ten., §§ 290-302; Tiedeman on R. P., §§ 645-646. Ejectment will lie on failure to pay royalty, under forfeiture clause of lease, without previous demand or re-entry by lessor. Robinson v. Borp, 61 N. J. L. 179; 38 Atl. Rep. 813.

Taylor's Land. & Ten. (7 Ed.), § 764 et sub.

4 Campbell v. Rankin, 2 Mont. 363. To be a bar, a judgment must have been rendered on the same issues. But trespass quare clausum fregit, like ejectment, must be based upon an actual possession or the right thereto, or the plaintiff must be in constructive possession. Hugunin v. Cunnif, 2 Colorado, 367. See also Gill v. Cole, 1 Har. & J. 403.

would not lie to recover for mesne profits which accrued subsequent to the day of the demise, for the defendant, having been treated, in the action of ejectment, as a trespasser, the plaintiff would afterward be estopped to regard him as a tenant.1

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§ 534. Same Mesne lessee not liable therefor— Defenses. The action for mesne profits may be maintained, generally, against any one wrongfully in actual possession of the land. But a sub-lessee, holding over, after the expiration of his lessee's interest, unless he has himself been guilty of a tort, by collecting rent, or other wrongful act, during the period of his holding over, cannot be held liable for mesne profits. Nor can an original lessee who enters under one in possession claiming title, be held responsible in an action of trespass for mesne profits, after the eviction of his lessor, by a person holding the paramount title. Any matter of defense may be set up in an action for mesne profits that could be legitimately introduced in an action of debt for royalty. But the same rules of pleading govern in this, as in other matters of defense, and, generally, anything can be introduced that goes to controvert the truth of the plaintiff's allegations; to take

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1 Taylor's Land. & Ten. (7 Ed.), § 705 and note. However, the lessor could waive his action for mesne profits and recover under the statute (Statutes different States) in an action for debt, by way of a penalty for double the value thereof for the time the premises were held over. Taylor's Land. & Ten., § 710; (8 Ed.).

2 Taylor's Land. & Ten., § 711, p. 601 (7 Ed.), and cases cited.

3 Jones v. Clark, 20 Johns. 51; Calderwood v. Peyser, 31 Cal. 337; Douglas v. Fulda, 45 Calfornia, 492.

4 Taylor's Land. & Ten., § 711, p. 601 (7 Ed.); Jackson v. Randall, 11 Johns. 405. An action to recover for mesne profits can generally be maintained, irrespective of the suit to recover possession of the land. O'Reilly v. Long, 25 Ind. App. 529.

away his right or reduce his cause of action.1 He can show that he was not in possession at the time charged in the plaintiff's complaint,' that he was not in possession as long as charged, or any other matter, avoiding the liability sought to be placed upon him by the plaintiff.4 He can also plead part payments and set up the statute of limitations in bar of plaintiff's right of action. But although he can offset the value of such improvements as he was authorized by the owner to make, in an action by the latter, he cannot set up this defense when the action is brought by the devisee, for in such case he must seek his compensation from the personal representatives of the devisee; nor could the value of improvements erected by the lessee be offset against the rents and profits, in an action by the lessor under the statute, for this defense is in its

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1 Bliss on Code Pleading, §§ 349-351. The defendant can interpose an equitable right or title if it negatives plaintiff's right of possession. Bliss, § 349, p. 510; Fallett v. Heath, 15 Wis. 601. And defendants can set up two or more defenses in their answer and support both by proof. Bell v. Brown, 22 California, 671. But the proof must support the

title claimed. Eagen . DeLaney, 16 California, 86.

2 And if a defendant is out of possession he is not bound by a judgment against a codefendant in possession. Burke v. Table Mt. Co., 12 California, 404.

8 Jackson v. Combs, 7 Cow. 36.

4 Bliss on Code Pl., supra.

Taylor's L. & T. (7 Ed.), § 711, p. 601.

• Idem. Tiedeman, R. P., §§ 713-717. Abandonment is also a good defense. Bell v. Brown, 22 California, 671. Or an outstanding title. Cal. Quicksilver M. Co. v. Redington, 50 California, 160; Mallett v. U. S. M. Co., 1 Nev. 194.

Taylor's Land. & Ten., supra. After a judgment for plaintiff the defendant has a reasonable time to remove buildings and machinery erected by him for purposes of mining. MacSwinney on Mines, pp. 515-516; Wake v. Hall, 7 Q. B. D., 295–303. But not after he has abandoned the same. MacSwinney, supra; 8 App. Cas. 208; 216.

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