Opinion,
Mr. Justice Sterrett :There is no question as to the correctness of the learned referee’s findings of fact. The sole contention is as to the law applicable to the undisputed facts clearly and concisely stated in his report. The most important of these is, that defendants below, being tenants in common with plaintiff of an oil lease, conspired with one of their employees to obtain his interest in the lease at an undervalue, and by gross deception and fraud accomplished their object. As soon as he discovered the fraud that had been practiced upon him by his co-tenants, he tendered them the consideration he had received and demanded a reconveyance of his interest. Efforts to compromise resulted in an agreement that they would reconvey the same and reinstate him in possession upon his paying the amount they had expended in fraudulently procuring his interest in the lease. The right of defendants below “ to deduct one third of the expenses and costs of production from the proceeds of plaintiff’s one third of the oil already produced was left unsettled and to be determined according to the rights and equities of the parties, in some form of action, the same as if plaintiff below had recovered possession by adversary proceedings.”
This action of trespass was brought to determine the disputed matter thus excepted and reserved for future determination. The real question therefore before the referee was whether defendants below were entitled to deduct from the proceeds of plaintiff’s share of the oil produced, while he was-fraudulently dispossessed, a proportionate part of the expenses; incurred by them in producing the oil during that period. *52According to their agreement, as found by the referee, that question is to be determined “ as if plaintiff below had recovered possession by adversary proceedings.” As to the measure of damages, therefore, the compromise under which the reconveyance of his interest in the lease was made, cannot operate as a condonation of the fraud, because the effect of that fraud on the question of damages is expressly excepted by the terms of the agreement.
As well stated by the referee, the question is this : “ When the owner of land has been deprived of the same tortiously or by fraud, and after recovery brings suit for mineral taken from the land by the trespasser, while in wrongful possession, and converted to his own use, is the plaintiff entitled as damages to the value of the mineral so taken, in place, or the value in its changed and improved condition as a chattel?” In other words, is the wrongdoer entitled in such suit to recoup from the value of the mineral as a chattel, the expense of mining or producing it ? The mere statement of the proposition in this form suggests the only answer that can be given unless it is the policy of the law to make the way of the transgressor easy and secure.
The relation of the parties to each other, as co-tenants of the lease, and the fact that two of them after fraudulently dispossessing the other may have continued to use the property as it probably would have been used if they had all remained in possession, does not mitigate the tort, nor qualify the ordinary rule of damages. Co-tenants are bound to respect the rights of each other quite as much as if they were strangers in title.
We find no error in the conclusions of the learned referee.
Judgment affirmed.