Chief Justice Hayt
delivered the opinion of the court.
It is contended that The Canon City Coal Company and Harriet Bipley were improperly joined as plaintiffs. The [121] argument in support of this contention proceeds upon the theory that the lessor in an action at law is confined to a suit for the injury to the reversion, and the lessee for the injury to the possession. This is undoubtedly true under strict common-law rules; but this is not a common-law action. Here the principal relief sought is equitable in character, and the accounting is merely incidental thereto. Mrs. Ripley was properly joined as plaintiff, as she, with her coplaintiff, was the owner of the estate which the defendants were despoiling. Her property was being damaged and she was entitled to have the injunctive aid of the court extended for its protection. Furthermore, as by the terms of her lease to The Canon City Coal Company she was to receive as rental therefor certain royalties upon every ton of coal mined from the land, she was a party in interest in the determination of the amount of coal illegally extracted therefrom by the defendants, and for this reason was a proper party plaintiff in the action. Civil Code, sec. 10. Aside from this, the defendants were in no way injuriously affected by the action of the court in refusing to sustain their demurrers upon the ground of a misjoinder of parties plaintiff, the decree, in so far as it affects the defendants, being in no way enlarged by reason of Mrs. Ripley’s connection with the suit.
It is also urged that there is an improper joinder of defendants. In support of this assignment of error, the fact is urged that the district court rendered a single judgment against The United Coal Company for the coal mined prior to a certain date, and a joint judgment against both the defendants for the coal mined after such date. The complaint alleges that The United Coal Company was operating an adjoining property under a lease, and had extended its operations underground into the plaintiff’s premises, and that the machinery company was doing the work as the agent of the coal company, the exact relations between the two not being known to plaintiff. By a familiar principle of code practice, the rights of all parties to a controversy should be adjusted by a single decree, and full relief be granted in a [122] single suit, if justice to all can be effectuated. The complaint alleges, and the evidence shows, that the injuries suffered by the plaintiffs were the result of wrongs committed by the defendants jointly, and that unless restrained, the defendants would work great and irreparable injury to the estate and prevent a full disclosure of the wrongs theretofore inflicted.
Upon these facts equity had jurisdiction to restrain the defendants from the further spoliation of plaintiff’s property, and it was proper to join all persons who were interested in the subject-matter of the suit, to the end that their several rights and duties might be determined in one decree; and as incidental thereto, courts of equity have full power to grant such relief as the particular equities of the case may warrant. Relief may be granted to some of the plaintiffs against all the defendants, or in favor of the plaintiffs against one or more defendants; and the decree may adjust the rights of plaintiffs and the rights of defendants as between themselves as justice may require. As we shall hereafter see, the court, having obtained jurisdiction for one purpose, had jurisdiction for the purpose of settling all the rights of the parties plaintiff and defendants; hence, the demurrer on account of misjoinder of defendants, was properly overruled. 1 Pom. Eq. § 114; Danielson v. Gude, 11 Colo. 87; Plant v. Stott, 21 Law Times (N. S.), 106; Morrison’s Mining Digest, 141.
The defendants, upon the issues joined, were not entitled to a jury trial. In the case of Danielson v. Gude, supra, it is said: “The question whether an issue of fact can be tried by a jury or by the court is not to be determined from the nature of the issue, but from the character of the action in which such issue is joined.” As we have seen, this is an equitable action, and the mode of trial must be as equitable cases are tried—viz: by the court without a jury, subject only to the power of the court to call a jury to answer disputed questions of fact. Tabor v. Sullivan, 12 Colo. 136.
We are also of the opinion that the district court applied á correct measure of damages. The defendants, being will[123] ful trespassers, it was proper to allow the full value of the coal mined, without deduction for their labor and expense in mining the same, the rule of damages being the value of the ore at the time and place it is severed from the realty. If the court had found that the trespass of the defendants was innocent in character, the rule would have been the value at the time of the conversion, less the amount which the defendants by their labor had added to that value. Omaha & Grant Co. v. Tabor, 13 Colo. 41; Woodenware Co. v. United States, 106 U. S. 432.
In this case the value of the coal at the collar of the shaft is stipulated to have been $2.05 per ton. By deducting from this amount the cost of transporting the coal from the point in the mine where broken to the collar of the shaft—viz: twelve cents per ton, leaves the actual damage $1.93 per ton, as found by the district court.
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Chief Justice Hayt
delivered the opinion of the court.
It is contended that The Canon City Coal Company and Harriet Bipley were improperly joined as plaintiffs. The [121] argument in support of this contention proceeds upon the theory that the lessor in an action at law is confined to a suit for the injury to the reversion, and the lessee for the injury to the possession. This is undoubtedly true under strict common-law rules; but this is not a common-law action. Here the principal relief sought is equitable in character, and the accounting is merely incidental thereto. Mrs. Ripley was properly joined as plaintiff, as she, with her coplaintiff, was the owner of the estate which the defendants were despoiling. Her property was being damaged and she was entitled to have the injunctive aid of the court extended for its protection. Furthermore, as by the terms of her lease to The Canon City Coal Company she was to receive as rental therefor certain royalties upon every ton of coal mined from the land, she was a party in interest in the determination of the amount of coal illegally extracted therefrom by the defendants, and for this reason was a proper party plaintiff in the action. Civil Code, sec. 10. Aside from this, the defendants were in no way injuriously affected by the action of the court in refusing to sustain their demurrers upon the ground of a misjoinder of parties plaintiff, the decree, in so far as it affects the defendants, being in no way enlarged by reason of Mrs. Ripley’s connection with the suit.
It is also urged that there is an improper joinder of defendants. In support of this assignment of error, the fact is urged that the district court rendered a single judgment against The United Coal Company for the coal mined prior to a certain date, and a joint judgment against both the defendants for the coal mined after such date. The complaint alleges that The United Coal Company was operating an adjoining property under a lease, and had extended its operations underground into the plaintiff’s premises, and that the machinery company was doing the work as the agent of the coal company, the exact relations between the two not being known to plaintiff. By a familiar principle of code practice, the rights of all parties to a controversy should be adjusted by a single decree, and full relief be granted in a [122] single suit, if justice to all can be effectuated. The complaint alleges, and the evidence shows, that the injuries suffered by the plaintiffs were the result of wrongs committed by the defendants jointly, and that unless restrained, the defendants would work great and irreparable injury to the estate and prevent a full disclosure of the wrongs theretofore inflicted.
Upon these facts equity had jurisdiction to restrain the defendants from the further spoliation of plaintiff’s property, and it was proper to join all persons who were interested in the subject-matter of the suit, to the end that their several rights and duties might be determined in one decree; and as incidental thereto, courts of equity have full power to grant such relief as the particular equities of the case may warrant. Relief may be granted to some of the plaintiffs against all the defendants, or in favor of the plaintiffs against one or more defendants; and the decree may adjust the rights of plaintiffs and the rights of defendants as between themselves as justice may require. As we shall hereafter see, the court, having obtained jurisdiction for one purpose, had jurisdiction for the purpose of settling all the rights of the parties plaintiff and defendants; hence, the demurrer on account of misjoinder of defendants, was properly overruled. 1 Pom. Eq. § 114; Danielson v. Gude, 11 Colo. 87; Plant v. Stott, 21 Law Times (N. S.), 106; Morrison’s Mining Digest, 141.
The defendants, upon the issues joined, were not entitled to a jury trial. In the case of Danielson v. Gude, supra, it is said: “The question whether an issue of fact can be tried by a jury or by the court is not to be determined from the nature of the issue, but from the character of the action in which such issue is joined.” As we have seen, this is an equitable action, and the mode of trial must be as equitable cases are tried—viz: by the court without a jury, subject only to the power of the court to call a jury to answer disputed questions of fact. Tabor v. Sullivan, 12 Colo. 136.
We are also of the opinion that the district court applied á correct measure of damages. The defendants, being will[123] ful trespassers, it was proper to allow the full value of the coal mined, without deduction for their labor and expense in mining the same, the rule of damages being the value of the ore at the time and place it is severed from the realty. If the court had found that the trespass of the defendants was innocent in character, the rule would have been the value at the time of the conversion, less the amount which the defendants by their labor had added to that value. Omaha & Grant Co. v. Tabor, 13 Colo. 41; Woodenware Co. v. United States, 106 U. S. 432.
In this case the value of the coal at the collar of the shaft is stipulated to have been $2.05 per ton. By deducting from this amount the cost of transporting the coal from the point in the mine where broken to the collar of the shaft—viz: twelve cents per ton, leaves the actual damage $1.93 per ton, as found by the district court.
It is contended that the evidence does not warrant the conclusion that the trespass was wilful. It is in evidence that the officers of the company caused an underground survey of these workings to be made in the spring of 1892, before the trespasses complained of were committed. Such survey certainly must have disclosed the location of the workings, although the company never communicated the result to its superintendent in charge of the work. The witness Prentiss testifies that he took charge of the property in the spring of 1892, for The United Coal Company, and that the work had then crossed the boundary line between the Prentiss land and that of plaintiffs, and adds: “ I then ordered the entry turned back to the Prentiss land.” The evidence shows that if such order was ever given it was disregarded, as the defendants continued in the direction in which they had theretofore been working without any change in direction whatever. The witness, Theodore Coster, testifies that he was foreman for the Prentiss mine during the year 1893, assuming the duties of the position on January 9th, and con-tinned the work until the injunction issued in this case was served. He says that an underground survey was made in [124] November, 1892, and that after he became aware that he was working on plaintiff’s land, he was given orders from the machinery company to make the openings therein larger, which he proceeded to do until stopped by the injunction issued in this case. This witness also testifies that the effect of making the excavations larger would have been to cave in that portion of the mine; and that an examination would thereby have been rendered impossible. During the time that these excavations were being enlarged, the plaintiff demanded admittance for the purpose of making a survey, but was put off upon one pretext and another until about the time the injunction was served. There is other testimony in the record corroborative of this testimony, and the court was amply justified in finding that the trespass was wilful. Finding no error in the record, the judgment of the district court will be affirmed.
Affirmed.