delivered the opinion of the Court—Baldwin, J. concurring.

On the trial of this cause the Court was asked by plaintiffs’ Attorney to instruct the jury that, under the pleadings, the entry of the defendants and the ouster of the plaintiffs are admitted, and that the only question for them to determine is as to who has the better right to the premises in dispute. The instruction was refused, and this refusal is assigned as error. The complaint is verified, and sets forth that the plaintiffs are the owners and entitled to the possession of certain mining claims, therein described, and that the defendants wrongfully and unlawfully entered upon and dispossessed the plaintiffs of *93 the same. The answer denies specifically the allegation of ownership and right of possession, and, in reference to the allegation of entry and ouster, denies that the defendants wrongfully and unlawfully entered and dispossessed the plaintiffs, as alleged in the complaint. The facts of entry and ouster are the only issuable facts presented in this allegation, and in the absence of a denial in positive and unequivocal terms, they are, for the purposes of the action, to be taken as true. (Pr. Act, Sec. 65.) The answer contains no such denial, but, in effect, admits the truth of the facts charged. The denial refers to the character, and not to the existence, of these facts. In other words, the answer, in effect, admits that the defendants entered upon the claims in question, and ousted the plaintiffs, but denies that such entry and ouster were wrongful and unlawful. l'To question of fact is presented by this denial, and the Court should have so instructed the jury.

The latter part of the instruction is not, as supposed by the counsel for the Respondents, obnoxious to the objection that it violates a well established principle of law, that a plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of that of his adversary. The plaintiffs will not, in any event, be entitled to recover, unless they establish prima facie a valid title to the property. It appears from the pleadings, however, that the title is claimed by both parties, and the validity and relative superiority of these conflicting claims were the practical questions submitted to the jury, and to which the evidence was directed. The spirit of this part of the instruction is, not that the plaintiffs could recover upon an imperfect title, but that these conflicting claims of title were the only subjects for the jury to consider.

We cannot undertake to determine to what extent the plaintiffs were prejudiced, or whether prejudiced at all, by the refusal of the Court to give this instruction. The record does not, of course, furnish us with a perfect history of the trial, and even if it did, the grossest injustice might be done if we should decline to interfere with the judgment upon the ground that the action of the jury was not influenced by the error of the Court.

Judgment reversed and cause remanded.