Tremaine v. Weatherby. cut up by streams or sloughs, by bluffs or the like. He cannot have the whole of such a tract in the grasp of his hands or under his feet. If the owner of eighty acres of land breaks and cultivates sixty acres and up to a slough leaving twenty acres unbroken and unused, it would be unfair to say that his possession of the twenty acres was not actual and adverse, because it is cut off from the other land by a stream, a bluff, a thicket, or a slough. In this case it is not claimed that the river run upon the line of the government subdivision between the two fractional forties which composed the whole tract. On the other hand the land was conveyed by metes and bounds which show that such was not the fact. We think, that where one takes possession of a government subdivision of land under a claim of title to the whole of it, and breaks up the sod and puts part of it under cultivation, and no other person is in possession of any part, the possession must be held as applying to the whole tract claimed by him, especially when, as in the case at bar, the actual possession extends to every government subdivision within that embraced in the whole tract. 3.: : III. It appears from the evidence that during the time the defendant was in possession of the land he "went east" with his family and remained some nine or ten limitations. years, and that during his absence the land was farmed by tenants under the direction of an agent, whom the defendant left to lease and attend to his property. statute of It is contended by counsel for appellant that the statute of limitations ceased to run during the defendant's absence from the State. This position is probably correct under the rule announced in Heaton v. Fryberger, 38 Iowa, 185. But counsel for the appelles contend that there is no evidence that defendant was at any time out of the State. It is true it is many times stated by the defendant, and by other witnesses that he "went east," but, where he went to, whether in the eastern part of this State, or into one of the states east of this does not appear. If he was within this State the statute Tremaine v. Weatherby. did not cease to run and operate in his favor. We cannot presume a state of facts upon which to base a reversal of a case. We are required to make every reasonable presumption in favor of the correctness of the action of the court below. We are the more ready to so hold in this case because it is very doubtful from an examination of the record whether this question was distinctly raised in the court below. It is true objection was made to the evidence of the defendant's agent, and to that of the defendant, as to the renting the improved land while defendant was east, upon the ground that the evidence was incompetent and irrelevant, but this objection was urged all the way through because the land leased out did not embrace that part conveyed to plaintiff. No mention is made of any alleged interruption to the operation of the statute in any instruction of the court to the jury nor in any instruction asked, nor in the motion for a new trial. 4. -: : color of title. : IV. It is urged that the defendant cannot successfully interpose the statute of limitations, because the deed under which he holds is a mere quit claim and not admissible to show color of title. The cases of Watson v. Phelps, 40 Iowa, 482; Springer v. Bartle, 46 Id., 688 and several other cases in this court are cited as authority for the rule contended for. Those cases are not applicable to the question presented here. They hold that the grantee of a quit claim deed is not to be regarded as a good faith purchaser without notice of outstanding equities. The question as to what constitutes color of title to support the statute of limitations is very different. To constitute color of title, it is not requisite that the title under which the party claims should be a valid one, and its want of validity may result from its original inherent defects. Hamilton v. Wright, 30 Iowa, 480. In Colvin v. McCune, 39 Id., 502, it was held, that a tax deed void on its face would afford color of title so that the statute would operate as a bar. See also Douglass v. Tullock, 34 Id., 262, and Close v. Samm, 27 Id., 509 defendant also claims that he held under claim of right, and The Tremaine v. Weatherby. testifies that he pre-empted the land, paid the county for it, claimed that he owned it, and paid all taxes on it, until he sold to the plaintiff. This was surely sufficient to make the color of title or claim of right required to support the statute. In Washburn on real property, Vol. 3, p. 156, it is said "a quit claim deed, from one claiming under a tax deed, though insufficient to pass a good title, gives to one in possession under it, color of title." : color of title: title in the United ute of limita tions. V. The land was certified to the railroad company after the defendant took possession under his deed from the county. It is urged that as the statute of limitations did not commence to run while the title was in the States: stat- United State the defendant cannot invoke the aid of the statute until there was some distinct assertion or renewal of his claim to the ownership supported by actual possession. An instruction to the jury to this effect was asked by the plaintiff and refused. Such an instruction was not applicable to the facts of the case. The evidence shows beyond dispute that the defendant was in the actual possession of the land during all the time after he broke it up. He caused it to be cultivated every year excepting one or two wet seasons. Like an army of occupation his flag was constantly unfurled. Each day and each year as he entered upon the land to plow, sow, cultivate and reap there was a distinct assertion of his claim of right to the land. When the railroad company acquired the title, this open and actual possession was held by the plaintiff, and it continued for more than ten years after that and before the conveyance to the plaintiff. Nothing more than this was necessary, and under these circumstances we think it was wholly immaterial whether the defendant's claim of right or color of title originated before or after the railroad company acquired title. In the foregoing discussion, we think we have in substance at least noticed all of the objections urged by counsel for appellant in their argument, and reach the conclusion that the judgment of the Circuit Court should be AFFIRMED. Smith v. The K. C., St. J. & C. B. R. Co. SMITH V. THE K. C. ST. J. & C. B. R. Co. 1. Railroads: INJURY TO STOCK: RUNNING AT LARGE. A sucking colt, following its mother which was in the control of the plaintiff, strayed and was injured by defendant's train. Held, that the colt, under such circumstances, must be deemed to have been running at large. 2. 3. 4. -: ·: DOUBLE DAMAGES: NOTICE OF LOSS: PROOF OF SERVICE: COPIES. Proof of the service of notice and affidavit of loss, to entitle plaintiff to double damages, may be made by copies shown to be correct, without notice to the defendant to produce the originals. : ——: WILLFUL ACT OF OWNER. The fact that the plaintiff by a voluntary act exposed the colt to danger from defendant's train, if the act was done for a lawful purpose and the danger was merely incidental thereto, does not make the act willful. : : PLACE OF INJURY: RIGHT TO FENCE: INSTRUCTION. Where the evidence does not show the character of the place at the point where the injury occurred, an instruction, excluding from the jury the consideration that if the colt was injured where the defendant had no right to fence, it would not be liable, was erroneous. Appeal from Pottawattamie Circuit Court. SATURDAY, JUNE 10. ACTION to recover double damages for injury to a mule colt alleged to have been caused by one of the defendant's trains, where the defendant had a right to fence. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals. Sapp & Lyman, for appellant. Percival & Morgan, for appellee. Its ADAMS, J.-The animal injured was a sucking colt. mother was being led by the plaintiff across the defendant's depot grounds, when the colt strayed off and passed down the track southward. A train from the north soon passed, and afterward the colt was found, with a leg broken, about a mile and a quarter from the station. 1. RAIL jury to stock: running at large. Smith v. The K. C., St. J. & C. B. R. Co. I. The first question presented is as to whether the colt was running at large. The defendant contends that it could not be so considered, if its mother was in the ROADS: in- plaintiff's control; and asked the court, in substance, to so instruct, which the court refused to do. The fact that the colt was a sucking colt, and its mother was in the control of the plaintiff did not, we think, show that the colt was in such control. It might, perhaps, under ordinary circumstances be expected to follow its mother, but there was nothing but its own inclination to restrict its freedom and prevent it from straying, and we think that it must be deemed to have been running at large. II. The plaintiff introduced as a witness, one Cloyed, who testified that he served the notice and affidavit of loss, and that certain copies introduced in evidence were the same. The defendant asked the court in substance to instruct the jury, that the evidence of service by production of copies was insufficient, it not being shown that notice had been served upon the defendant to produce the originals. struct, and we think properly. ruled in Brenter v. Railroad Co., decided at the present term. Post, p. 625. 2. double damages: notice of loss: proof of service: copies. : The court refused to so in- III. The court instructed the jury that if the accident to the colt was caused by the willful act of the owner, then the defendant was not liable therefor. But in the 3.-:--: owner. willful act of same connection, the court instructed the jury, that the fact that plaintiff turned the colt out into the highway for the purpose of taking it across the railroad track to the pasture would not constitute the willful act contemplated by the statute. The defendant insists that the court erred in ruling that such act would not be a willful act as contemplated by the statute. The mere fact that the plaintiff by a voluntary act exposed the colt to danger, would not, we think, make the act willful. If the act was done for a lawful purpose, and the danger was |