It is well settled law that an unqualified grant of land will operate as a revocation of a license to enter upon the land and take away trees or other products of the soil, or part of the soil, such as gravel. Drake v. Wells, 11 Allen, 141. The deed making such conveyance must be absolute, giving an unqualified grant of the land.
In the present case, the plaintiff with his family was in possession of the land from which the gravel was taken, during all the time in which the defendant was taking it. The defendant was not forbidden by any person to take the gravel. There was evidence tending to show that the conveyances from the plaintiff to his son, and by the son to the plaintiff’s wife, and back again to the son, were colorable; that they were mere paper titles; that the plaintiff had the control and possession of the real estate while the paper title was in his son and wife; and that neither the son nor the wife exercised any control over the estate or had possession of the same. There was evidence of a license to the defendant to enter and cart away the gravel, even if the original license was revoked by the deed of the plaintiff to his son. The defendant entered upon the premises without *478opposition, and apparently under the license of the plaintiff, who was in possession. There was no evidence that the son or the wife ever objected to the entry of the defendant, and to its taking away the gravel. When the gravel was severed from the realty and carried away by the defendant under these circumstances, a sale of the gravel by the plaintiff to the defendant may be implied.
The prayer for instructions was inartificially worded. If the record or colorable title was in other members of the plaintiff’s family, it is difficult to determine how the plaintiff could be the true owner. The word “ owner ” as used was equivocal, and probably was adopted to express the plaintiff’s title as known by him, his wife, and his son, all of whom evidently treated the plaintiff as the owner. We think that the request for a ruling should have been granted in some form. There was evidence from which the jury might have found that the wife and son, while holding the record title, assented to the delivery of the gravel by the plaintiff to the defendant, and that the conveyance to them was colorable, so that the plaintiff had the right to sell the gravel. This question was fairly open upon the evidence and the request for a ruling. The instructions of the court to the jury, that the plaintiff was not entitled to compensation for any gravel taken by the city while the record title was out of him, and that, if the jury found that the conveyances were made as appears by the records, the plaintiff was not entitled to anything prior to the time when the record title came back to him, excluded the question from the consideration of the jury.
Exceptions sustained.