position, the burden is on the plaintiff to show a want of probable cause: Cooley, Torts, 184; Lery v. Brannan, 39 Cal., 485; Cloon v. Gerry, 13 Gray, 201; Bacon v. Towne, supra. The determination of the question of probable cause, or the want of it, involves a mixed question of law and fact. As to what particular facts in each case will constitute probable cause is a question of law for the court, with which the jury should have nothing to do. But when the facts are in dispute, then as to what facts are established by the testimony is exclusively for the jury. But when the facts are admitted or established by verdict or otherwise, or as shown by the undisputed testimony of the plaintiff, the question as to whether they constitute probable cause or not is purely a question of law: Stewart v. Sonneborn and Cloon v. Gerry, supra; Fulton v. Onesti, 66 Cal., 575; Eastin v. Bank, 66 Cal., 123; Grant v. Moore, 29 Cal., 644; Harkrader v. Moore, 44 Cal., 145; Cooley, Torts, 181, 182; Bulkeley v. Smith, 2 Duer, 261; Jones v. Jones, 71 Cal., 89; Allen v. Codman, 139 Mass., 136. If the defendant in this kind of an action, at the time of commencing the suit complained of, had knowledge of facts tending to show probable cause, but had knowledge of other facts which would tend to explain or modify them, or tending directly to show want of probable cause, and it becomes a question as to which of such facts were believed and acted upon, this would be a question for the jury. This is mentioned in Stewart v. Sonneborn, supra, as an apparent exception to the general rule that what facts will constitute probable cause is a question of law for the court; but, this does not apply to a case where all the undisputed facts known to the defendant, taken together, would justify in a reasonable person the honest belief that the fact charged was probably true. In such case the defense would be absolute as matter of law, and the jury would have no right, under the pretense of saying the defendant did not believe, to find against him. If it were otherwise, the rule that what facts constitute probable cause in an action for malicious prosecution is a question of law for the court would have no meaning or force whatever. The jury might in every case,

no matter what the facts might be, under the pretense of unbelief on the part of defendant, find against him. As said by the supreme court of Vermont in Barron v. Mason, 31 Vt., 189, speaking of the proof of probable cause and malice in this class of actions: "Probable cause has reference to the common standard of human judgment and conduct, and malice regards the mind and judgment of the defendant." Belief is not always the controlling question, as is well shown by Justice Holmes, speaking for the court in Allen v. Codman, supra. What, then, does the testimony of the plaintiff show the facts to be, as known to Ascheim at the time of commencing his action? Bearing in mind that the whole controversy in that case turned upon the question as to whether the mine was developed by the parties, Wright, Avery and Mocks, in partnership, and with the understanding that they should share in any discoveries, it shows that Mocks was earnestly and stoutly maintaining to Ascheim that such was the fact. This is clearly shown by the complaint put in evidence by the plaintiff, not only that he was so reporting to Ascheim, but that he swore to it positively, giving circumstances and details in support of it. It shows that he knew the fact that a partnership did exist between the parties as to the lagging contract. It further shows that he knew that all the parties were actively engaged in getting out the lagging, and that the entire proceeds of all that was earned by them jointly were used in developing the mine; that but one camp was maintained in both enterprises; that the lagging account with him was largely overdrawn to maintain the camp and develop the mine. It further shows that he knew that Avery had been admitted to participation in the mine, on account of the fact that the proceeds of the lagging contract had been used in its development. The only fact known to him, tending to refute all this, was the fact that the other parties in interest denied Mocks' right. This is always true in actions for malicious prosecution. In bringing a civil action, the fact that the action was brought presupposes that the right claimed is denied. We think these facts show that probable cause existed for bringing the

action. The plaintiff by his testimony has not even attempted an explanation as to how or by what right he was appropriating Mocks' interest in the lagging contract to his own individual use. He admits that it was done, and claims there was no contract or agreement authorizing it, and his witness Avery, who was interested with him, says "he didn't know where Mocks was standing in all this matter, or what he was getting." It is interesting in this connection to note how Avery, in his testimony before quoted, accounts for the interest he got in the mine. It is but fair to say that he himself, in his testimony, states a case that would have entitled Mocks in a court of equity, as a matter of right, to share in what he received. If the plaintiff and Avery, by their unauthorized and unlawful appropriation of what belonged to Mocks, have thereby created circumstances from which damaging inferences might be drawn, they must abide the consequences: Jones v. Jones, 71 Cal., 92.

We think that the facts shown by the plaintiff's testimony at least fail to establish want of probable cause. If this were not so, the testimony on the part of the defendant fully establishes the fact that he did have probable cause for bringing the action. Besides his own testimony, he proved by at least two witnesses, not only that they informed him before the suit was brought that Wright and Avery had told them that Mocks was a partner in the mine, but that such was the fact. He proved by still another that he was present when Wright and Avery offered Mocks a share, less than one-fourth, to compromise his claim, and that before suit was brought he informed the plaintiff of it. He further showed, by Judge Harkness, who was then acting as his attorney, that he laid all the facts known to him before Harkness, who took the matter under advisement, examined Mocks as to his statement, and after all this advised the bringing of the suit. While this may have raised a question of fact, for the jury to disregard it would be so plainly against the weight of evidence that we should not hesitate to reverse the judgment on that ground: Moore v. Railroad Co. (Minn.); Burton v. Railroad Co., 33 Minn., 189.

It is unnecessary to discuss the other errors alleged. The judgment and order appealed from should be reversed, and a new trial ordered.

ZANE, C. J., and BOREMAN, J., concurred.

D. P. TARPEY, RESPONDENT, v. DESERET SALT COM

PANY, APPELLANT.

TARPEY V. DESERET SALT Co. ante p. 205.

PUBLIC LANDS. CONGRESSIONAL GRANT. -Congress by the act of July 1, 1862, granting certain lands to the Central Pacific Railroad Company of California, granted the perfect legal title in praesenti, to all the lands included in the grant, whether surveyed and selected or not.provided the lands did not come within the exceptions.

CORPORATIONS. GRANT FROM ONE TO ANOTHER. The articles of amalgamation and consolidation incorporating the consolidated company, contained a grant as follows: The said Central Pacific Railroad Company "hereby sells, assigns, transfers, grants, bargains, releases and conveys" to the said consolidated company "all its property, real, personal and mixed" and "all rights, privileges and franchises," etc., held, that the articles conveyed the lands granted to the former company by the government under the act of July 1, 1862.

ID. PROOF OF EXISTENCE. Where title is traced through corporations, which are not parties to the record and with which defendant has no privity, proof of their existence as corporations de facto by their articles of incorporation duly made, is sufficient prima facie.

ID.-PROOF OF POWER TO HOLD REAL ESTATE. In case above, it is

not necessary to prove by the laws of the state where organized that said corporations were authorized to hold or transfer real estate, such power is determined by the laws of the government in which they are doing business.

APPEAL from a judgment of the district court of the first district, and from an order refusing a new trial.

Action in ejectment. Plaintiff showed following title: 1st. The land in controversy is an odd-numbered fractional section lying within the limits of the grant made by

Congress to the "Central Pacific Railroad Company of California."

2d. The map of definite location of the line of said railroad was filed, as required by acts of Congress, on the 20th day of October, 1868.

3d. The amalgamation and consolidation of the said "Central Pacific Railroad Company of California" and the "Western Pacific Railroad Company," by articles of association bearing date June 22d, 1870, the new or consolidated company being designated the "Central Pacific Railroad Company."

4th. The amalgamation of the "Central Pacific Railroad Company," the "California & Oregon Railroad Company," the "San Francisco, Oakland & Alameda Railroad Company" and the "San Joaquin Valley Railroad Company," by articles of agreement dated August 20th, 1870. This consolidated company was also called the "Central Pacific Railroad Company."

5th. A selection made by the "Central Pacific Railroad Company" for patent of a portion of the land in controversy, viz., the N. W. of the N. E. 1, the N. W. of the S. W. and N. W. of said section, and filed in the land office at Salt Lake City in 1885. The land so selected for patent being all the surveyed land in said section, and the only lands therein as to which the costs. of survey, selecting and conveying had been paid.

6th. A lease, dated August 7th, 1885, from the "Central Pacific Railroad Company" to the plaintiff, demising the said lands to him for the term of five years, from the 1st day of January, 1886.

Mr. P. L. Williams, for appellant.

The grant to the railroad did not convey the legal title: Act of July 1, 1862, secs. 3 and 4, 12, Stat., 489; Act of July 2, 1864, sec. 21, 13 Stat., 356; Railway Co. v. Prescott, 16 Wall., 603; Railway Co. v. McShane, 22 Wall., 444; North Pac. R. R. Co. v. Traill County, 115 U. S., 600.

In this case the plaintiff, to recover, traces his title through supposed corporations, the legal organization or