form operation, but to meet the supposed requirements of a particular situation. The act is clearly void, and does not affect the rights, remedies, or liabilities of any one. We think the contention that part of appellee's claim is barred by laches is without merit. The period of limitation within which actions could be commenced upon the village bonds is fixed at six years by the state statute. As to one bond, that period expired July 1, 1898, as to another, it expired July 1, 1899, and as to the others, it had not expired when the present suit was commenced. Appellee's action at law against the village, upon the two bonds with others, was commenced before the expiration of the period of limitation, and was prosecuted to a judgment in his favor before the judgment of ouster in the proceeding in quo warranto; and the present suit, which is rested in part upon the judgment in the action at law, was commenced within less than one year after the dissolution of the village had been so judicially pronounced. The record does not disclose such delay on the part of appellee as requires or permits the application of the doctrine of laches. The decree is affirmed. RESURRECTION GOLD MIN. CO. v. FORTUNE GOLD MIN. CO. (Circuit Court of Appeals, Eighth Circuit. April 14, 1904.) 1. BOUNDARIES-WHEN CALLS AND COURSES AND DISTANCES CONFLICT. If monuments called have been lost or removed, the places where they were originally set may be shown by parol or documentary evidence, and, if proved to the satisfaction of the jury by a fair preponderance of testimony, they prevail over the courses and distances. If the monuments called have been lost or removed, and their original locations are not proved, the courses and distances control the description, and must be followed in its application to the land. 2. SAME-PAROL EVIDENCE TO CHANGE CALLS OF MONUMENTS. Parol evidence is incompetent to substitute in a conveyance a call for another monument in the place of the call for the original monument there contained. A round stake four inches in diameter, set loosely six inches in the ground between two convenient reference points within four feet of it, with two blazes upon it, and an inscription with a lead pencil of the figures "3-2309" upon the later blaze, does not fill the description of a post four inches square, with the figures "3-2309" cut into it, set firmly in the ground, where no reference points are available. 8. CROSS-EXAMINATION-RIGHT OF-DISCRETION IN ALLOWING. A full and fair cross-examination of a witness upon the subjects of his direct examination is a right, and not a privilege, of the party against whom he is called, and its denial or substantial restriction is reversible error. The allowance of cross-examination is discretionary only, after the right has been fairly exercised. 11. See Boundaries, vol. 8, Cent. Dig. § 18. 4. SAME-LIMITED TO SUBJECTS OF DIRECT EXAMINATION. It is the general rule in the federal courts that the cross-examination of a witness should be limited to the subjects of his direct examination. 5. SAME-MAY ELICIT AFFIRMATIVE DEFENSE. Where a witness for the plaintiff has disclosed on his direct examination a part of a conversation or transaction, the fact that the entire conversation or transaction constitutes an affirmative defense is no bar to its disclosure by cross-examination. 6. SAME-DENIAL PREJUDICIAL. Prejudice is presumed from the denial or undue restriction of a crossexamination. It is no answer that the cross-examiner could call the witLess or other witnesses to prove the facts he seeks. He is entitled to bind his adversary by proof of the facts by the latter's witness. 7. SAME-GENERAL RULE. The general rule is that error produces prejudice, which may not be disregarded, unless it appears beyond a doubt that it did not prejudice, and could not have prejudiced, the party who assigned it. 8. WILLFUL TRESPASSER-DEFINITION-NEGLIGENCE AS EVIDENCE OF. One who takes the ore of another from his land without right, either recklessly or with the actual intent so to do, is a willful trespasser. One who takes such ore without right, but inadvertently and unintentionally, or in the honest belief that he is exercising his own right, is not a willful trespasser, and may avail himself of the lower measure of damages. Mere negligence, of the character described by the word "inadvertence," in ascertaining the limits of the lands or rights of the owner, will not alone sustain a finding of that recklessness, fraud, bad faith, knowledge, or intent requisite to establish a willful trespass, but it is competent evidence upon the issue of willfulness or innocence. An intentional omission, however, to exercise care to ascertain such limits, for the purpose of maintaining ignorance regarding them and trespassing upon them, or a reckless disregard of them, is as fatal to the claim of a trespasser to limit damages to the lower measure as knowledge of the owner's rights and an intent to violate them. Thayer, Circuit Judge, dissenting in part. (Syllabus by the Court.) In Error to the Circuit Court of the United States for the District of Colorado. Gerald Hughes (Charles J. Hughes, on the brief), for plaintiff in error. Clayton C. Dorsey (Willard Teller, on the brief), for defendant in error. Before SANBORN, THAYER, and HOOK, Circuit Judges. SANBORN, Circuit Judge, delivered the opinion of the court. This is an action of trespass brought by the Fortune Gold Mining Company, a corporation, the lessee of the Fortune lode mining claim, against the Resurrection Gold Mining Company, a corporation, for the intentional removal of ore from the Fortune claim. The plaintiff alleged, and the defendant denied, that the former was the lessee from the owner and was in the possession of the Fortune lode mining claim, and that the defendant intentionally and willfully removed therefrom ore of the value of $100,000. The real issue between the parties, however, was whether the boundary of the Fortune claim at corner No. 3 was at the point where the courses and distances recited in the patent located it, or at a place about 28 feet farther northwest. If it was at the former point, the trespass of the defendant was inconsiderable; but if, as the plaintiff claimed and the jury found, it was in the latter place, ore of the value of several thousand dollars had been extracted from the plaintiff's claim by the defendant. The plaintiff's title rested upon a patent issued in 1894, and the description in that patent upon the survey for patent made in January, 1882. The original monuments erected by the surveyor at corners I and 2 of the Fortune claim, when he surveyed it for patent, were standing upon the ground at the time of the trial. The monument erected at corner 4 had disappeared. The plaintiff insisted that a round stake, with two blazes upon one side of it, loosely placed in the earth, and surrounded by a mound of stones at a place about 28 feet northwest of the point where the courses and distances run from the known corners I and 2 located corner 3, was the original monument erected by the surveyor to mark that corner, and that it was in the same place where the surveyor put the original monument in January, 1882. The patent and the field notes on which the patent was based were introduced in evidence by the plaintiff. The recitals of the patent, so far as they are material to the questions in this case, are that it is a grant of the Fortune lode mining claim known as "Lot No. 2,309"; that this claim is bounded as follows: Beginning at corner No. 1, a post four inches square, marked 1-2309, thence south I degree 30 minutes west 300 feet to corner No. 2, thence south 88 degrees 48 minutes east 1,465 reet to corner No. 3, thence north 1 degree 30 minutes east 300 feet to corner No. 4, thence north 88 degrees 48 minutes west 1465 feet to corner No. 1 at the place of beginning; and that the lot No. 2,309 extended 1,465 feet in length along the Fortune vein or lode. The field notes recited that a post marked each corner, that at corner No. 3 there were "no reference points available," and that "all corner posts are 4" square x 4 ft. long set 2 ft. in ground, and have cut into them the respective number of the corner and number of the survey. No bearing ties available from any of the corners." The amended field notes recite that there was at corner No. I "a post 4 ins. square, 4 long, set 2 ft. in ground and marked 1-2309," at corner No. 2 "a post 4 ins. square, 4 ft. long, set 2 ft. in ground and marked 2-2309," at corner No. 3 "a post 4 ins. square, 4 ft. long, set 2 ft. in ground and marked 3-2309," and at corner No. 4 "a post 4 ins. square, 4 ft. long, set 2 ft. in ground, and marked 4-2309." Neither the patent nor the field notes describe a mound of stones as a part of any of the monuments. The original monuments which stand at corners 1 and 2 are posts 21⁄2 feet high, about 5 inches square, set firmly in the ground, with the figures "1-2309" and "2-2309" cut into them respectively about % of an inch. The stake which the plaintiff claims is the original monument at corner No. 3 is round, 4 or 5 inches in diameter, about 3 feet high, and it sets loosely about 6 inches in the ground, and is surrounded by a mound of stones. It is blazed on one side. A partial attempt has been made to square it at the top. No figures are cut into it. Some one has whittled or hewn off one side of the blaze, and upon this new blaze has faintly written with a lead pencil the figures "3-2309." ft. The owner of the claim from whom the plaintiff derives its lease testified that he was present when the survey for patent was made, that four stakes of about the same character were set at the four corners, that stones were piled around them, that he did not notice and does not know how they were marked, that he does not know how the round stake at corner No. 3 is marked, that he thinks the round stake is the original post set there by the surveyors, that it looks to him like it, and that it is in the same location in which the original post was set. He testified that when the original post was placed at this corner by the surveyor in 1882 there was a stump 18 inches in diameter and 12 or 14 feet high 18 inches north of the post, and another large stump 3 feet south of the post, and that the surveyor and his assistants measured the distances from the post to these stumps and blazed them. The stumps still remain upon the ground. No other witness testified that he knew the round stake to be the original post. Several stated that they had seen the stake, in the place where it now stands, at various times between the survey in 1882 and the time of the trial. One of the defendant's witnesses testified that in 1896 he found a stake at this corner about 22 feet high and 5 or 6 inches square, but that on July 9, 1898, he looked for it at the same place but could not find it. No other material evidence upon the issue of the identity of the round stake with the original post set at corner 3 appears in the record. It is assigned as error that in this state of the evidence the court refused to grant the request of the defendant to instruct the jury "that a post which is round, blazed on one side, and bearing lead-pencil marks or figures, not set in the ground, but set up in a mound of stones, does not fulfill the description of a post which calls for a post four inches square, four feet long, set two feet in the ground, and having the number of the corner and the number of the survey cut into said post,' and that the court on the contrary charged the jury "that a stake such as described by the witnesses in this case as located at corner No. 3 is sufficient to meet the calls of the patent." The description of the land in controversy in the patent is copied from and founded upon the field notes of the survey of the claim which were introduced in evidence by the plaintiff, so that, as far as the question here presented is concerned, the case stands as though the field notes were written into the description of the patent. Before entering upon the discussion of the specific issue to which our attention is first challenged, it may be well to recur for a moment to the rules for the application of a description in a patent or in a deed to the land to which it refers. A plain and unambiguous description. in a written conveyance can no more be contradicted or modified by parol evidence than any other part of a written agreement. It is only when a patent ambiguity arises in the description itself, or in the application of it to the land, that evidence aliunde becomes admissible for the purpose of fitting the description to the ground to which it refers and of removing uncertainty. When the monuments called for in a conveyance do not correspond with the courses and distances there recited, such an ambiguity necessarily arises, and parol and other evidence is then admissible to remove it. In cases of this character the original monuments called by the patent, if they still remain in place, prevail over the courses and distances noted in the description. If the monuments called have been lost or removed, the places where they were originally located may be shown by parol or other competent evidence, and, if proved to the satisfaction of the jury by a fair preponderance of evidence, these original locations will prevail over the courses and distances, and control the application of the description to the land. Robinson v. Kime, 70 N. Y. 147, 154; Lodge v. Barnett, 46 Pa. 485; Wendell v. People, 8 Wend. 190, 22 Am. Dec. 635; Jackson v. Widger, 7 Cow. 723; Pernam v. Wead, 6 Mass. 131; Lessee of McCoy v. Galloway, 3 Ohio, 282, 283, 17 Am. Dec. 591; Bagley v. Morrill, 46 Vt. 94, 100; Opdyke v. Stephens, 28 N. J. Law, 83, 89. If the monuments are lost or removed and their original locations are not established by competent proof, the courses and distances prevail, and control the description. Parol evidence, however, is incompetent to substitute a different monument for one clearly called by a deed or patent, or by the survey upon which it is founded, because that course of proceeding would violate the settled rule that written contracts may not be contradicted or modified by oral evidence. It is not competent to create an ambiguity by changing the written description by parol evidence, and the to proceed to apply the changed description to the land by the rules of law and evidence to which reference has been made, which are applicable only to conveyances which are in themselves ambiguous, or become so in their application to the ground. Bruckner's Leesee v. Lawrence, 1 Doug. 19, 25, 27-36; Bagley v. Morrill, 46 Vt. 94, 100; Drew v. Swift, 46 N. Y. 204, 209; Pollard v. Shively, 5 Colo. 309, 315; Lessee of McCoy v. Galloway, 3 Ohio, 282, 283, 17 Am. Dec. 591; Claremont v. Carlton, 2 N. H. 369, 9 Am. Dec. 88. The patent in the case before us disclosed no ambiguity, and presented no conflict between its courses and distances and any monument for which it called at corner No. 3, because it specified no monument at that corner. There was therefore no excuse for parol evidence on the face of the patent, and the courses and distances which it contained were prima facie controlling and consistent with themselves. Thereupon counsel for the plaintiff introduced in evidence the field notes of the survey, and read them into the patent for the purpose of raising the requisite ambiguity upon which its cause of action rests. These field notes recite that the monument at corner No. 3 was "a post 4 ins. square, 4 ft. long, set 2 ft. in ground, marked 3-2309," that these numbers were cut into the post, and that it stood at a place where no reference points were available. This description imported no ambiguity into the patent, unless the post there described could be found, or unless its original location could be proved to be at some other point than at the place where the courses and distances located the corner. In order to prove that there was such a stake at such a place, and in order to create the ambiguity which did not otherwise exist, the plaintiff introduced testimony that a round stake 4 inches in diameter, with two blazes, the later on the side of the earlier, with the figures "3-2309" written in pencil upon it, but without any figures cut into it, stood between two available reference points 28 feet northwest of the position of the corner as indicated by the courses and distances, and the court instructed the jury that the latter stake satisfied the description of the corner post. Stakes in themselves are generally similar. The descrip |