men at work from January to November, on the market price of lead depended mainly 1894, and then three men; that then a lease was given from January to August, 1895; that on this lease three men worked up to July and five men during that month; that during the term of this latter lease the lessees discovered and developed the ore body that defendant was working on when plaintiff was refused possession; and that all the work the defendant did afterwards was on that body of ore. If there be any rule of law relating to the rights of tenants in common with respect to the common property that would justify the defendant in excluding the plaintiff from entering into possession and working said mine, it has not been cited, and we know of no such rule. The contention of appellant that the damages awarded by the jury are excessive and vindictive, and wholly without evidence to support them, is the only remaining contention that we regard requires special considation in this opinion. Counsel asserts "that there was no proof of the amount of ore that Paul would have mined, the number of tons that he could have removed, the number of men that he would have employed or could have employed profitably, the cost of removal at that time, the value of the ore then known to exist, or the profit per ton or in gross.' There was evidence to the effect that the plaintiff was a practical miner of many years' experience in practical mining; that mining was his business; that at the time he took his lease the mine was in such condition, and such bodies of ore had been and were then exposed in the undergound workings by other lessees, as to make it reasonably certain that a large amount of ore could be extracted therefrom; that it appeared to be reasonably certain from the extent of these ore bodies in said workings and their dip that they continued downward out and beyond where the defendant was working, and could be tapped by a perpendicular shaft if sunk 40 or 50 feet deep from the surface; that the plaintiff intended and proposed to sink such a shaft, and work the said ore bodies below the level on which the defendant was working, and raise the ore through the shaft; that other practical miners secured a lease on the day of June, 1897, on said mine for the term of one year, sunk a shaft 52 feet deep at the place where the plaintiff intended to sink one, struck the said ore bodies, and mined therefrom 1,150 tons of ore during the term of their lease, with five men working four or five months and six men working the balance of said term. Besides, they took out 65 tons from the level above, or 1215 tons in the aggregate. From the above facts the jury might reasonably have found that there was reasonable probability that the plaintiff could and would have mined from 1,000 to 1,200 tons of ore during the term of his lease if he had been permitted to work as he proposed and intended to do. It appears that the ores of the mine were valuable only for the lead and silver they contained; that 66 per cent was lead, and that there were 12 or 13 ounces of silver per ton of ore; that the value of the ore; that the plaintiff could have sold all the ore he could have mined in 1896 at the rate of $3.30 per 100 pounds of lead contained therein. It was agreed between the parties at the trial that when the market price of lead was $3.30 the ore was worth $18.34 per ton over and above cost of shipping to market, less the expense of mining and sacking the ore; that it required 14 sacks to sack a ton of ore, and that the sacks cost 7 cents apiece, and miner's wages were $3 per day. If the lessees in 1897 prosecuted the work every day, the wages of their men would be $6,030. If it required sufficient sacks to sack all the ore before any shipments were made, their cost would be $1,190. It appears from the evidence that two men could sack 10 tons per day. Their wages for sacking 1,215 tons would be $732. These three items of costs of mining and sacking of 1,215 tons are figured at the highest possible costs that could have been incurred according to the evidence. It is not probable that the men worked every day in the year, or that it was necessary to have on hand so great a number of sacks to sack the ore. But, taking these items as the necessary costs of extracting and sacking the 1,215 tons of ore from $22,283, the gross yield at $18.34 per ton, and a profit of $14,331 is shown. We think the evidence would have justified the jury in finding that the plaintiff, as a practical miner of long experience in mining, whose business was that of mining, could, and would probably, have extracted such quantities of ore from said ore bodies during his said term, if the defendant had not excluded him therefrom, and sold the same at such market price then existing, as would have yielded him a net profit even greater than the sum allowed him for damages. The only value a mine has to a lessee thereof is the profits arising from his working the same, and, when he is wrongfully excluded and prevented from such working. his loss consists in the loss of profits that he would have made but for such exclusion. "The adjudged cases very clearly show that in actions to recover for damages resulting from a tort a more liberal rule in favor of the plaintiff prevails than in actions to recover for a loss resulting from a breach of contract. Yet in the latter class of cases the overwhelming weight of authority supports the doctrine that profits, when not entirely speculative, may be taken into account" (Terre Haute v. Hudnut, 112 Ind. 555, 13 N. E. 686); and it is only required that they be ascertained with a reasonable degree of certainty (Chapman v. Kirby, 49 Ill. 211). "It is not to be forgotten that the law does not require absolute certainty in any case. In civil cases all that is deemed requisite is a fair and reasonable degree of probability. Lord Mansfield says that the only degree of certainty attainable in judicial proceedings is a probable one.' and this is the doctrine of logical as well as of law writers. It is, indeed, impossible to secure any higher degree of certainty in human affairs. although there may be degrees of probability. All that can be required in any case or upon any subject is that the evidence shall tend, with a fair degree of probability, to establish a basis for a relevant inference." Terre Haute v. Hudnut, 112 Ind. 557, 13 N. E. 686. "A tenant in common, when ousted by his cotenant, may recover the damages resulting from the ouster, as well as when ousted by an entire stranger to the land." Carpentier v. Mitchell, 29 Cal. 330, and cases cited. The order appealed from is affirmed. Massey, J., concurs. Belknap, J., dissenting: The written instrument which is the basis of this action is as follows: Know all men by these presents, that Eugene Howell, of the county of White Pine, state of Nevada, the party of the first part, and Frank Paul, of the county and state, the party of the second part, do covenant and agree, and by these presents do covenant and agree, that the said party of the first part hereby leases unto the said party of the second part a one-third interest in and to that certain mine known as and called the "Homestake Mine," situated in Swansea cañon, near Shermantown, White Pine mining district, White Pine county, state of Nevada. This lease to take effect and go into force from this day, and to continue for a period of one year up to and including June 13. 1897. The provisions of this lease to be as follows: The party of the second part hereby agrees to work the said mine in a workmanlike manner, and leave the mine in as good a condition as it is at this time. The said party of the second part agrees to pay over to the said party of the first part, or to the sheriff of White Pine county, or to C. A. Mathewson, of Hamilton, White Pine county, Nevada, as shall be directed by the said party of the first part, royalty from all ores and ores taken out, extracted, and shipped from the said Homestake mine by the said party of the second part or by any one during the continuance of this lease, as follows: The party of the second part agrees to pay one dollar ($1.00) per ton net money for all ores shipped and worked from said ($3.00) per ton for all ores taken out and shipped under this lease. This royalty to be net over everything, and no expenses of any nature to be deducted from same. Said royalty to be paid upon the first day of every month to the party or parties as hereinbefore named, together with duplicate statements of ores worked by smelters. The said party of the first part empowers the party of the second part to ship all ores that may be out on the dumps and extracted from said Homestake mine at this time, the ores representing the one-third interest as named in this lease, paying the royalty therefor as herein named. All ores to be marked in the name of the Homestake mine. The party of the second part agrees to post a notice upon said mine at once that said mine and mine which is at the rate of three dollars interest will not be responsible for any debts, obligations, expenses, wages, or dues of any nature or character whatsoever during the term of this lease, to read as follows: Know all men by these presents, that a one-third interest in the Homestake mine has been leased unto Frank Paul, and said mine will not be responsible or said Eugene Howell will not be responsible or holden, or said mine holden, for any debts, obligations, wages of men, expense of mining supplies, or any dues of any nature or character whatsoever during the term of this lease. In witness whereof we have this 13th day of June 1896, set our hands and seals at Carson City, Nevada. The parties have called it a lease, but the name they have attached to it can make no difference as to its legal effect. Bainbridge, in his work on the Law of Mines and Minerals (page 236), says: "There is a great distinction between a lease of mines and a license to work mines. The former is a distinct conveyance of an actual interest or estate in lands, while the latter is only a mere incorporeal right to be exercised in the lands of others. It is a profit à prendre, and may be held apart from the possession of land. In order to ascertain whether an instrument must be construed as a lease or a license, it is only necessary to determine whether the grantee has acquired by it any estate in the land, in respect of which he might bring an action of ejectment. If the land is still to be considered in the possession of the grantor, the instrument will only amount to a license, and, though the grantee of the license will certainly be entitled to search and dig for mines according to the terms of his grant, and appropriate the produce to his own use, on payment of the stipulated rent or proportion, yet he will acquire no property in the minerals till they are sevable to be recovered in an action of trover." ered from the land, and have thus become liAnother distinction is that a lease is a contract for exclusive possession, whereas a license merely gives the licensee the right to use the premises for a specified purpose, the possession remaining in the licensor. "The authorities are agreed that a license to dig and take ore is never exclusive of the licensor, unless expressed in such words as to show that that was the intention of the parties. Where the license simply gives the licensee the right to dig and take ore, the licensor may take ore from the same mine at the same time, and also grant permission to others to exercise the same right." Silsby ▼. Trotter, 29 N. J. Eq. 233; Malcomson v. | conclude, therefore, that the instrument is Wappoo Mills, 85 Fed. Rep. 907. a license, and that plaintiff acquired no interest thereby except as to ore extracted by him. As to ore not extracted, there was no change of ownership. For these reasons I dissent from the judgment. It will be noticed that under the provisions of the instrument above set forth respondent acquired no estate in the mine, and that his possession was not exclusive. I NEW JERSEY COURT OF ERRORS AND APPEALS. Betsey E. FELT, Appt., v. Joseph P. FELT, Respt. The state of the plaintiff's residence has power to change his or her status or legal position in the community as to marriage as well as other relations, by a proceeding in its courts, with such notice to the nonresident party and to the world as is reasonably possible under the circumstances, which notice may be either constructive or actual, that the sister states can and ought to recognize and give effect to such change of status by the exercise of interstate comity, as being in accord with the best interest of the community. Interstate comity requires that a decree of divorce pronounced by a court of the state in which the complainant is domiciled, and which has jurisdiction of the subject-matter of the suit, shall, in the absence of fraud, be given full force and effect, within the jurisdiction of a sister state, notwithstanding that the defendant does not reside within the jurisdiction of the court which pronounced the decree, and has not See 2 Bishop. Marr. Sep. & Div. Bk. VIII.; been served with process therein; provided 1 Nelson, Div. & Sep. § 28; 2 Black, Judgm. that a substituted service has been made in § 932; Harding v. Alden, 9 Me. 140, 23 Am. accordance with the provisions of the stat- Dec. 549; Ditson v. Ditson, 4 R. I. 87; Hawute of that state, and that actual notice of the kins v. Ragsdale, 80 Ky. 353, 44 Am. Rep. pendency of the suit has been given to the 483; Van Orsdal v. Van Orsdal, 67 Iowa, 35, defendant, and a reasonable opportunity af-24 N. W. 579; Thoms v. King, 95 Tenn. 60, forded to put in a defense thereto; and pro- 31 S. W. 983; Smith v. Smith, 43 La. Ann. vided, further, that the ground upon which the decree rests is one which the public policy 1140, 10 So. 248; Loker v. Gerald, 157 Mass. of the state in which it is sought to be en- 42, 16 L. R. A. 497, 31 N. E. 709. forced recognizes as a sufficient cause for di A vorce. (December 22, 1899.) PPEAL by complainant from a decree of the Court of Chancery denying a divorce. Affirmed. The facts are stated in the opinion. Mr. Frank L. Holt for appellant. Mr. W. B. Williams, for respondent: A judgment of divorce, rendered in another state, where the plaintiff is domiciled, by a court having jurisdiction of the plaintiff and the subject-matter, will be treated as conclusive by the courts of this state, although the defendant, being a resident of this state, was not served and did not appear to the suit in the state where the judgment was rendered, but was personally served with notice of the suit in such manner as to afford such defendant knowledge of its purpose, and reasonable time to defend. Doughty v. Doughty, 28 N. J. Eq. 581; Fairchild v. Fairchild, 53 N. J. Eq. 678, 34 Atl. 10; Maynard v. Hill, 125 U. S. 190, 31 L. ed. 654, 8 Sup. Ct. Rep. 732; Ditson v. Ditson, 4 R. I. 87. Headnote by GUMMERE, J. NOTE. As to effect of divorce in other state, see also Cummington v. Belchertown (Mass.) 4 L. R. A. 131, and note; Thompson v. Thompson (Ala.) 11 L. R. A. 444, and note; Adams v. Adams (Mass.) 13 L. R. A. 275: Kelley v. Kelley (Mass.) 25 L. R. A. 806; Bullock v. Bullock (N. J.) 27 L. R. A. 213; Hilbish v. Hattel (Ind.) Gummere, J., delivered the opinion of the court: The appellant, by her bill in this case, seeks a decree of divorce from her husband for adultery, and also for desertion. The respondent has pleaded, in bar of the relief sought, a decree of absolute divorce obtained by him against the appellant in a district A full recourt of the territory of Utah. cital of the averments of the plea is not necessary. It is sufficient for present purposes to say that the truth of those averments is conceded by the appellant; that from them it appears that the court which rendered the decree pleaded had jurisdiction of the subject-matter of the suit, and of the respondent here, who was the complainant therein, and who at the time of the institution of the suit was a bona fide resident of the territory of Utah; that the domicil of his wife was in this state, and that she was neither served with process within the territory of Utah, nor did she personally submit herself to the jurisdiction of the court, but that jurisdiction was obtained by publication of the process and complaint made in accordance with the statutes of Utah; that. 33 L. R. A. 783; Dunham v. Dunham (Ill.) 35 L. R. A. 70; Atherton v. Atherton (N. Y.) 40 L. R. A. 291. As to validity of divorce granted by court of foreign country, see St. Sure v. Lindsfelt (Wis.) 19 L. R. A. 515. in addition, personal service thereof was the power to make them so, goes without made upon her, at her residence in New Jer- saying; and it cannot be conceived that it sey, a sufficiently long time before the period was intended that we should refuse to acwithin which to make answer had expired cord to the decrees rendered in the courts of to afford her an opportunity to defend the our sister states against nonresident defendsuit, if she had desired to do so; and that ants, who have not submitted themselves to the decree was granted upon two grounds, the jurisdiction of such courts, the efficacy viz., cruelty and desertion. What force and we claim for our own, when liable to the effect will be attributed to a decree of divorce same objection. rendered in a court of a sister state, where the jurisdiction of the court rests solely upon the domicil of the complainant, and where the defendant, being a nonresident, is brought into court by publication and the service of notice outside the jurisdiction, is a question of first impression in this court. It will not be denied that the preservation of good morals, and a proper regard for social relations, make it desirable that such a decree should be considered valid, not only in the state where it is pronounced, but in every other jurisdiction, provided the grounds upon which it is based are recognized in such jurisdiction as justifying the decree. By it the matrimonial relation of the husband and wife is terminated in the state in which it is rendered. Within the boundaries of that state a marriage afterwards contracted by either of the parties with a third person is entirely valid. So, too, sexual relations between the former husband and wife, within that jurisdiction, subsequent to the entry of the decree, are illicit, unless sanctioned by a new marriage. But, if the decree is without extraterritorial force, the entire status of both parties is reversed as soon as they pass beyond the limits of that state. A subsequent marriage to a third person within that state then becomes void, and the relations of the parties to it become adulterous; while sexual relations between the parties to the decree, which are meretricious if indulged in within that state, become matrimonial again when indulged in without its borders. A condition of the law which makes the intercourse of a man and woman either legitimate or adulterous, as they happen to be within the limits of one state or another, is not to be tolerated any further than is plainly required by public policy. As has been heretofore stated, the question before us has never been determined in this court. It, however, received consideration in Doughty v. Doughty, 28 N. J. Eq. 581, although the case was decided upon another ground. In that case Beasley, Ch. J., delivering the opinion of the court, says: "A judgment of divorce, resting even on such a contracted foundation as the domicil of one of the parties alone, bears with it, into other jurisdictions, a title to respect, and in some cases a claim to voluntary adoption. In such instances, I regard the question whether the judgment shall be extraterritorially enforced to be one resting entirely on the consideration that, in a matter of unusual interest of this nature, an obligation rests upon every government to carry into effect, as far as is reasonably practicable, and as may be consistent with its own policy, all foreign judgments. But an appeal of this kind to interstate comity should, I think, never prevail, when the judgment sought to be accredited has been rendered in violation of that fundamental axiom of justice before referred to, that the parties, before their rights are adjudged, shall have an opportunity of being heard. A judgment of divorce proceeding from a jurisdiction founded on domicil would not contravene essential rules of natural justice, if actual notice to appear had been served on the defendant residing abroad. It is true that a notice so served on a litigant out of the jurisdiction in which a suit is pending may add nothing to the judicial right to take cognizance over the cause, but, nevertheless, it may impart a quality to the resulting judgment that will serve as a credential to it in a foreign jurisdiction." There is much contrariety of opinion upon the question in the courts of the That the public policy of New Jersey does various states, but the weight of authority not require that recognition should be re- seems to support the view expressed in fused to a decree of divorce, rendered by a Doughty v. Doughty to this extent, at least: court of a sister state, because the defendant that interstate comity requires that a decree had her domicil in another state, and was not of divorce pronounced by a court of the state within the jurisdiction of that court, seems in which the complainant is domiciled, and to me plain. State policy, when determined which has jurisdiction of the subject-matter by the legislature, controls the judicial of the suit, shall, in the absence of fraud, be branch of the government; and the legislature of New Jersey, by vesting in our court of chancery sole jurisdiction over the subject of divorce, and then authorizing it to render decrees divorcing, a vinculo, resident complainants from nonresident defendants, after obtaining jurisdiction over the latter by publication, and notice served out of the state upon, or mailed to the postoffice address of, the latter, has, as it seems to me, declared what our policy in this regard shall be. That it was intended by the legislature that decrees of divorce so rendered should be valid in every jurisdiction, so far as it had given full force and effect within the jurisdiction of a sister state, notwithstanding that the defendant does not reside within the jurisdiction of the court which pronounced the decree, and has not been served with process therein; provided, that a susbtituted service has been made in accordance with the provisions of the statute of that state, and that actual notice of the pendency of the suit has been given to the defendant, and a reasonable opportunity afforded to put in a defense thereto; and provided, further, that the ground upon which the decree rests is one which the public policy of the state in which statute. it is sought to be enforced recognizes as a service of process upon the defendant therein sufficient cause for divorce. That view com- (the present complainant) by publication, in mends itself to us, and we think that, sub-accordance with the provisions of the Utali Actual notice of the pendency of ject to the limitations mentioned, the courts of New Jersey should, as a matter of inter- the suit was given to her in time to have enstate comity, recognize as valid a decree of abled her to make defense thereto, if she had There is not even a sugdivorce rendered by the court of a sister state desired to do so. against a resident of this state who has not gestion that the decree is tainted by fraud, been served with process. and one of the grounds upon which it rests, In the case before us, the court pronounc-namely, desertion, is recognized by the laws ing the decree which has been pleaded in of this state as justifying the dissolution of bar of the relief sought by the complainant the marriage relation. was a court of the domicil of the present de- The decree appealed from should be affendant. It had jurisdiction of the subject-firmed. matter of the suit. There was a substituted 1. 2. 3. A OREGON SUPREME COURT. Declarations made by a man as to his own history and family relations are admissible after his death, for the purpose of identifying him, in an action by his relatives against the state to recover the proceeds of his estate, which has been escheated. The expense, including reasonable counsel fees, of the successful defense by the state of actions for the proceeds of property which has been escheated in proceedings that were regular and in accordance with the statute, may be deducted from the recovery of such proceeds by subsequent claimants under Hill's Anno. Laws, § 3141. Failure to set up previous payment which his opinion or inferences or the declarations of others are admissible. 1 Hill, Anno. Laws (Or.) § 682. Evidence may be given on the trial of the following facts: "4. The declaration or act, verbal or written, of a deceased person, in respect to the relationship, birth, marriage, or death of any person related by blood or marriage to such deceased person." Hill, Anno. Laws (Or.) § 706 (696). a To the admissibility of declarations when offered as authoritative in pedigree, it is essential that they should be made by lawful relatives. Wharton, Ev. 2d ed. § 202, chap. 55, § 218: or the value of services of special Wood, Practice, Ev. ed. 1886, § 98, p. 275; 7 counsel in successfully defending prior ac-Am. & Eng. Enc. Law, p. 74; Tyler v. Flandtlons against the state for the recovery of the proceeds of escheated property will not prevent the deduction thereof from the recovery against the state in a subsequent action therefor, under Hill's Anno. Laws, § 3141, which provides that such recovery shall be "with-ed. 191; Thompson v. Woolf, 8 Or. 463; out interest or costs to the state." (January 29, 1900.) PPEAL by defendant from a judgment of the Circuit Court for Multnomah County in favor of plaintiffs in an action to recover the proceeds of property escheated to the state which formerly belonged to John Fenstermacher, deceased. Affirmed. The facts are stated in the opinion. Messrs. Russell E. Sewall, Chester V. Dolph, and N. H. Bloomfield, for appellant: A witness can be heard only upon oath or affirmation, and he can testify of those facts only which he knows of his own knowledge, that is, which are derived from his own perception, except in those few express cases in ers, 57 N. H. 618; Flora v. Anderson, 75 Fed. Rep. 233; Fulkerson v. Holmes, 117 U. S. 397, 29 L. ed. 918, 6 Sup. Ct. Rep. 784; Blackburn v. Crawford, 3 Wall. 187, 18 L. Wilmington v. Burlington, 4 Pick. 174; 1 Rice. Ev. ed. 1892, § 220b, p. 416; 1 Taylor, Ev. §§ 576-579, 581; 2 Jones, Ev. §§ 316322; Abbott, Trial, Ev. pp. 90-92; Green- 1 field v. Camden, 74 Me. 61. Relationship must be established by other evidence than the declarations themselves, and this is a preliminary question for the judge. Abbott, Trial, Ev. p. 92. As evidence of pedigree, the declarations of a deceased person as to place of birth were not admissible by the law of England. Braintree v. Hingham, 1 Pick. 247. Hearsay evidence is not admissible to prove the place of a person's birth. Wilmington v. Burlington, 4 Pick. 176. ents: The declarations offered in evidence are adNOTE.-As to admissibility of hearsay evi-missible as to decedent's identity and his dence to prove pedigree, see Eisenlord v. Clum (N. Y.) 12 L. R. A. 836. and other cases in life, in a proceeding to establish the right of note thereto; also Re Pickens (Pa.) 25 L. R. A. his heirs to his estate. 477. Every man establishes his identity by his |