In trials for the recovery of the value of ore or minerals wrongfully mined and extracted, if plaintiff shows himself entitled to recover, and if he had the rightful possession of the ground from which the ore was taken at the time the action was brought or tried, the fact that defendant may have been in possession, either actual or constructive, when the case was tried shall not deprive plaintiff from recovering damages for the value of the ore or mineral mined and extracted according to the rules of law pertaining to the trials of actions of that character. But for the purpose of the action, plaintiff shall be deemed and held to be in possession of all the ground, drifts, stopes, openings, and premises from which the ore was taken, although he may not be able to reach such ground from his own openings and workings. The rule of law that plaintiff can recover nominal damages for the first entry, and then wait until he obtains actual possession of the ground from which the ore was taken, and then bring another action for the value of the ore or mineral so mined and taken, shall not be observed nor applied to defeat, in the first action, the recovery of the value of the ore or mineral so wrongfully mined and taken.
Source: L. 1893: p. 349, § 1. R.S. 08: § 4219. C.L. § 3307. CSA: C. 110, § 200. CRS 53: § 92-26-1. C.R.S. 1963: § 92-26-1.