it, the court determined to hold the case fast in its grasp, and pass upon the merits. Such is the inevitable effect of presuming, from the order merely sustaining such a demurrer, that the court passed upon and sustained all the grounds the demurrer alleged. The impropriety of such action seems plain, and we therefore think the current of presumption is the other way, as directly held by the supreme court of Iowa, in Griffin v. Seymour, 15 Iowa, 30, 83 Am. Dec. 396, where it was held that in such a case it would be presumed that the court, having found some formal defect, by reason of which the case was not properly in court, would not then proceed to consider and pass upon the merits. This is also in accord with the reasoning and conclusion of a great number of cases (some of which have been cited supra), that it must be clearly shown that the very matter as to which the bar of res adjudicata is invoked was adjudicated and determined on the merits in the former action. That it is not enough that such matter was attempted to be drawn in question if the same decision could have been rendered without its adjudication; that is, if its adjudication is not inherently implied in the judgment, it will not be held barred unless the record is supplemented by extraneous proof to the effect that such matter was adjudicated. The very rule that such evidence may be introduced in its tendency contradicts the idea that the uncertainty will be covered by presumption.

The application of the presumption contended for by respondent would, we think, frequently contradict or suppress the real fact with unjust consequences. Suppose a complaint is filed which is subject to the objection of misjoinder, or defect of parties, or improper joinder of causes of action. And, a demurrer having stated these grounds, also alleges the untenable ground of insufficient facts to constitute a cause of action. Now, the court, in considering the demurrer, would find one of the first mentioned objections well founded. But as to the latter objection the court would either not consider it at all, because the case was not properly in court, or, if the court did consider that objection, it would be found untenable. But for the other defects the demurrer would be sustained. Thereupon an order would be entered to the effect that the demurrer is sustained. The defect fully supports that order, and we venture that in a great majority of cases in our practice, where the demurrer is used with great frequency, no more specific order would be entered. In such a case, if the

60

plaintiff and his counsel who attended the argument concluded the court was right in its ruling on the demurrer, because there was a misjoinder or defect of parties, or an improper union of causes, they would not appeal, for the appeal would be unavailing. Now, if the presumption for which respondent contends be established, the plaintiff in such a case would be barred from setting up those facts in another action against the same parties, or some of them, or their privies, free from the former defects, while as a matter of fact the former ruling did not touch the merits. It is said that in such a case it is the plaintiff's duty to see that the entry in the record specifies the ground on which the former ruling was made, or that it was made without prejudice to another action, and a case is cited in support of that view: Foote v. Gibbs, 1 Gray, 412. It may well be answered that the time has come when it is not considered altogether amiss to claim some duties as due from the court toward litigants; and one should be to so shape the entry of court rulings in its record as not to raise unjust and untrue implications against the suitor, of which he is not the author, to burden or defeat his effort to obtain justice. Of course no such thing would be done knowingly, but it would arise in many cases where demurrers are sustained by general order, if the presumption contended for prevailed. And in the multitude of rulings which the trial judge is called upon to make he does not always expound the grounds thereof, nor, if expounded, would they be noted in the record. In the case last above cited it was held that where a cause was dismissed, and the entry of the order showed no qualification, as that it was dismissed "without prejudice," it would be presumed to have been dismissed on the merits. This ruling, however, 61 would hardly apply under our code: Comp. Stats., sec. 242. Moreover, in a later case (Foster v. The Richard Busteed, 100 Mass. 412, 1 Am. Rep. 125), the supreme court of Massachusetts cites, but does not follow, Foote v. Gibbs, 1 Gray, 412, as correctly announcing the rule of procedure applicable to the conditions mentioned; and likewise did Judge Brewer in Smith v. Auld, 31 Kan. 262: See, also, to the same effect the case of Steam Gauge & Lantern Co. v. Meyrose, 27 Fed. Rep. 213. It is further insisted that section 243 of the Code of Civil. Procedure makes it obligatory to render judgment on the merits in all other cases than those stated in the five subdivisions of the preceding section. The con

text, the whole chapter of which that section is a part, shows that section 243 relates to the case at a stage beyond the formation of the pleadings, where it stands for consideration and judgment on the merits, unless it is dismissed or nonsuited. The interpretation and application of that section, according to respondent's contention, would make a judgment or order on demurrer conclude the merits, even if the demurrer stated no ground which went to the merits, because such a case would be "other than those mentioned in section 242." We think it clear that the provisions of section 243 do not apply to this consideration.

It follows that the order sustaining the demurrer to Binzel's complaint of 1838 might have been based upon defects not touching the merits, and it not having been shown that such judgment proceeded upon a consideration of the merits, the ruling of the trial court holding that the facts set up in the cross-complaint were adjudicated in the proceedings of 1883 cannot be sustained. The judgment in this action is therefore reversed, and the cause remanded to be proceeded with in conformity to the views herein expressed.

PEMBERTON, C. J., and DE WITT, J., concur.

JUDGMENTS ON DEMURRER-CONCLUSIVENESS OF.-A final judgment on demurrer to a petition which goes to the merits renders the whole matter res judicata: Connecticut etc. Ins. Co. v. Smith, 117 Mo. 261; 38 Am. St. Rep. 656, and note. A decision upon demurrer is conclusive upon the questions legitimately involved: Ellis v. Northern Pac. R. R. Co., 80 Wis. 459; 27 Am. St. Rep. 44, and note.

JUDGMENTS-RES JUDICATA-BURDEN OF PROOF.-Before a judgment in one action can operate as a bar to another it must appear by the record, or by extrinsic evidence, that the precise question involved in the second action was raised and determined in the first: Bell v. Merrifield, 109 N. Y. 202; 4 Am. St. Rep. 436; Haines v. Flinn, 26 Neb. 380; 18 Am. St. Rep. 785, and note. To the same effect, Carson v. Clark, 1 Scam. 113; 25 Am. Dec. 79, and Wright v. Griffey, 147 Ill. 496; 37 Am. St. Rep. 228, and note. See particularly the extended note to Lea v. Lea, 96 Am. Dec. 785,

MODONALD V. MONTANA WOOD COMPANY.

[14 MONTANA, 88.]

MINING CLAIMS-LOCATION OF.-An association of not less than eight persons may locate a mining claim not exceeding one hundred and sixty acres. It is not necessary that a discovery should be made on each twenty acre tract, nor that each twenty acre tract should be marked off on the surface of the ground, nor that work should be done, nor improvements made on each twenty acres. It is sufficient that one hundred dollars be expended in work or improvements on the whole claim within any one year.

STATUTES GIVING PUNITIVE, DOUBLE, OR TREBLE DAMAGES against one cutting or otherwise converting to his own use timber growing on the land of another without his consent are confined to cases where some element of recklessness, wantonness, willfulness, or evil design enters into the act. Therefore, if the land is located in a wilderness, far from human habitation, and there is nothing to indicate that any one actually asserted ownership of any part of the country thereabout, and there is nothing to indicate willfulness, wantonness, or recklessness, actual damages only will be allowed.

Cowan & Parker, for the appellant.

Thomas Joyes, for the respondents.

90 PEMBERTON, C. J. On the twenty-third day of September, 1890, plaintiffs (being seven in number) and Thomas Joyes located the Landlock placer mining claim, a tract of ground in Jefferson county, which they estimated at the time contained 160 acres, but which afterward, by a survey, was found to contain about 76 acres. Plaintiffs made but one discovery on the entire tract. They marked the boundaries by blazing a tree at each corner of the entire tract of ground, and designated each of said corners of the claim by writing with a pencil, on the respective blazed trees, the name of the claim, and the 91 corner each tree represented. They also marked a tree at the discovery shaft, and posted a notice on the claim. The notice contained the names of all the locators, and a description of the ground claimed. The tract of land so located was not in any way subdivided into 20 acre claims, and no other discoveries were made, or marking done on the ground, than as stated above. During the year 1891 plaintiffs did work and made improvements on the entire tract of land to the amount of about $150. The complaint, which was filed November 21, 1891, charged that in the month of December, 1890, and at divers times between that date and the commencement of this suit, the defendant knowingly, willfully, and maliciously entered upon said land without the consent

of plaintiffs, and cut down and carried away a large amount of trees and timber growing thereon, etc., claiming actual damages in the sum of $3,000, and asking judgment for treble damages under section 363 of the Code of Civil Procedure. The answer denies the title of plaintiffs, and all the material allegations of the complaint. The case was tried by the court with a jury. The jury returned a verdict for plaintiff in the sum of $549.63, as actual damages, which they trebled, making the sum of $1,648.49, for which sum judgment was rendered. Defendant moved for new trial. This motion was overruled. The defendant appealed from the judgment and the order refusing a new trial.

The appellant contends that the location of the mining claim in the manner as above described is a nullity, and conferred upon plaintiffs no right or title to the Landlock placer mining claim, or to the right of possession thereof. The appellant claims that, under the law, the plaintiffs should have made a discovery on each 20 acre tract contained in the land sought to be located; that each 20 acre tract therein contained should have been marked upon the surface thereof, so that the boundaries thereof could have been readily traced; that a separate location of each 20 acre tract was necessary under the law; and that work or improvements of the value of $100 should have been done on each 20 acre tract contained therein, for the year 1891. Section 2330 of the Revised Statutes of the United States, among other things, provides: "But no location of a placer claim made after the ninth day of July, 1870, 92 shall exceed 160 acres for any one person or association of persons." This statute, it seems to us, confers the right upon an association of not less than eight persons to locate not to exceed 160 acres in one claim. This has been the holding and ruling of the United States land department uniformly, as far as we have been able to discover; and patents have uniformly issued in such cases, when there was a showing of an expenditure of $500 in work or improvements upon any part of the 160 acre claim: See Good Return Min. Co., 4 Dec. Dep. Int. 221; also, Morrison's Mining Rights, 7th ed., 134. In St. Louis Smelting Co. v. Kemp, 104 U. S. 636, Mr. Justice Field, delivering the opinion of the court, says: "The last position of the court below-that the owner of contiguous locations, who seeks a patent, must present a separate application for each, and obtain a separate survey, and prove that upon each the required work has been