Opinion by
Beatty, J.,
full Bench concurring.
On the 20th of November, 1863, Theodore Winters and some seven others, plaintiffs, filed a complaint against the Fairview Mining Company, the Croesus Mining Company, the Bullion Mining Company, the Minerva Mining Company, the Superior Mining Company, the Alpha Mining Company, and The Four-Twenty Mining Company, seeking to recover an interest in a certain mining claim, consisting of an “ equal undivided eight hundred and seventy-five feet” in a claim described as “ The Cosser & Co.’s claim.” * * “ Beginning on that certain gold and silver bearing quartz ledge in said district called the Comstock ledge, at the southern boundary of the claim formerly called the Webb and Kirby, and now known as the Chollar claim, and extending thence south along and following said Comstock ledge, with all its dips, spurs, and angles, a distance-of 1,600 feet, * * and extending on each side of said ledge 100--feet.”
The present appellant first demurred to this complaint, and, on the demurrer being overruled, answered, and then, by leave of the Court, put in a supplementary answer by way of amendment to the original answer.
Most, if not all, the other companies sued have put in some defense, but their answers are not material, as it regards the determination of the points before us.
No action is shown by the record to have been taken in the case after the answers filed, until the evening of the 12th of May, 1865, when a part of the defendants were served with notice, affidavit, copy of amended complaint, etc.
The notice was to the effect that the plaintiffs, next morning at ten o’clock, would move the Court to dismiss the complaint as to the defendant, the Bullion Company, make an order allowing the Bullion Company to be substituted as plaintiff, and also allowing an amended complaint to be filed by the Bullion Company.
At ten o’clock, those defendants who had been served with notice [172]*172came into Court and protested against the hearing, on the ground that the notice was insufficient, and appealed to a rule of the Court requiring five days’ notice of motions of this character.
The Judge observed from the bench he would shorten' the notice, and ordered the motion to be heard at two o’clock that day. At two o’clock the motion was heard and sustained.
After the order was made as above stated, a notice was then served on the present appellant that the Court would be asked to make the orders, which, in fact, had already been made. The bill of exceptions says this notice was served on the appellant on the afternoon of the 16th of May. This date is evidently a mistake, because it is inconsistent with other statements in the same bill of exceptions.
It must have been served on the appellant after the 13th and before the 16th; probably on the afternoon of the 15th. At the opening of the Court on the 16th the motion was called up and sustained. This was in effect only ordering that the appellant should be bound by the order which had already been made upon notice to other defendants.
The appellant protested against the whole proceeding as irregular, and calculated to deprive it of a fair opportunity of defending its rights in the case, and excepted to the ruling of the Court.
The Court ordered appellant to file its answer to amended complaint the next morning, (the 17th of May) although they had never been served with copy thereof. On that morning the answer was filed, and the trial of the cause proceeded.
The amended complaint is not for an undivided interest of 875 out of 1,600 feet, but for the entire claim known as the “ Cosser claim,” more particularly described as follows : “ Sixteen hundred feet in length upon that certain quartz lode known as the Comstock lode, being the section of said lode bounded on the north by the claim of the Chollar Silver Mining Company, and extending southerly along said lode, and including all the dips, spurs, and angles thereof, a distance of 1,600 feet of the said lode, being bounded upon the west by a wall of dark green rock, which appears in the ■working shaft of the Bullion Mining Company, at a depth of about 460 feet, and in the working shaft of the Chollar Company at a depth of about 425 feet, having a dip to the east of from thirty to [173]*173fifty degrees, and running in a general north and south course, and bounded upon the east by a heavy seam of clay selvage which appears at the lower works of the said companies, and lies along the-country rock which forms the eastern wall of said lode.”
The case went to trial on this amended complaint. The jury found for plaintiff, and judgment .was rendered for restitution of the property as described in this amended complaint. After judgment an execution was issued, and the Sheriff put plaintiff in possession of certain hoisting works of the appellant. The appellant contending that the judgment did not embrace these hoisting works, moved the Court for an order to reinstate it in possession of said works. This the Court refused. Appellant appeals from the judgment and also from the order refusing to reinstate it in possession of the hoisting works.
We think both appeals must be sustained. The original complaint was for only 875 out of 1,600 feet, or for an undivided inter est of thirty-five sixty-fourths of the whole. This is all the original plaintiffs claimed. t_
If these plaintiffs sold out to the Bullion Company, doubtless it would have been proper to substitute that company as plaintiff, and allow it to conduct the suit in its own way. We do not see that the fact that the Bullion Company had originally been a defendant could make any difference. Here was a suit for mining ground which seems to have extended over the claims of several companies. If one of these companies, sooner than litigate the suit, chooses to buy plaintiff’s claim, it had a right to do so. When that was done, the controversy was settled as to those parties. But in such a ease it would not be improper to allow the suit to continue as to the other defendants. But if continued, it must be the same suit, and not a new one. It must be for the property claimed by the original plaintiffs, and not for that property and other property claimed by the new plaintiff, united by a new declaration to that which was originally sued for.
If A were to sue B for a horse, and then assign the cause of action to C, C could not amend his complaint and charge that B had taken the horse from A, his assignor, and taken a yoke of oxen from C, the present plaintiff. Every one would at once see that this was uniting a new and distinct cause of action, arising to C [174]*174alone, with the original cause of action which arose to A. To allow this jumbling together of new and distinct causes of action, originally pertaining to different parties, would lead to much confusion and to no good. We have seen no precedent for such a practice, and cannot believe it justifiable. In this particular case, the reasons for refusing to sustain such a course are still stronger than in the case supposed.
A Statute of Limitations was passed in the latter part of November, 1861, to take effect December 2d, 1861, which limited all actions for the recovery of mining claims to two years after cause of action arose, but said statute not to begin to run against causes of action already existing until after its passage.
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Opinion by
Beatty, J.,
full Bench concurring.
On the 20th of November, 1863, Theodore Winters and some seven others, plaintiffs, filed a complaint against the Fairview Mining Company, the Croesus Mining Company, the Bullion Mining Company, the Minerva Mining Company, the Superior Mining Company, the Alpha Mining Company, and The Four-Twenty Mining Company, seeking to recover an interest in a certain mining claim, consisting of an “ equal undivided eight hundred and seventy-five feet” in a claim described as “ The Cosser & Co.’s claim.” * * “ Beginning on that certain gold and silver bearing quartz ledge in said district called the Comstock ledge, at the southern boundary of the claim formerly called the Webb and Kirby, and now known as the Chollar claim, and extending thence south along and following said Comstock ledge, with all its dips, spurs, and angles, a distance-of 1,600 feet, * * and extending on each side of said ledge 100--feet.”
The present appellant first demurred to this complaint, and, on the demurrer being overruled, answered, and then, by leave of the Court, put in a supplementary answer by way of amendment to the original answer.
Most, if not all, the other companies sued have put in some defense, but their answers are not material, as it regards the determination of the points before us.
No action is shown by the record to have been taken in the case after the answers filed, until the evening of the 12th of May, 1865, when a part of the defendants were served with notice, affidavit, copy of amended complaint, etc.
The notice was to the effect that the plaintiffs, next morning at ten o’clock, would move the Court to dismiss the complaint as to the defendant, the Bullion Company, make an order allowing the Bullion Company to be substituted as plaintiff, and also allowing an amended complaint to be filed by the Bullion Company.
At ten o’clock, those defendants who had been served with notice [172]*172came into Court and protested against the hearing, on the ground that the notice was insufficient, and appealed to a rule of the Court requiring five days’ notice of motions of this character.
The Judge observed from the bench he would shorten' the notice, and ordered the motion to be heard at two o’clock that day. At two o’clock the motion was heard and sustained.
After the order was made as above stated, a notice was then served on the present appellant that the Court would be asked to make the orders, which, in fact, had already been made. The bill of exceptions says this notice was served on the appellant on the afternoon of the 16th of May. This date is evidently a mistake, because it is inconsistent with other statements in the same bill of exceptions.
It must have been served on the appellant after the 13th and before the 16th; probably on the afternoon of the 15th. At the opening of the Court on the 16th the motion was called up and sustained. This was in effect only ordering that the appellant should be bound by the order which had already been made upon notice to other defendants.
The appellant protested against the whole proceeding as irregular, and calculated to deprive it of a fair opportunity of defending its rights in the case, and excepted to the ruling of the Court.
The Court ordered appellant to file its answer to amended complaint the next morning, (the 17th of May) although they had never been served with copy thereof. On that morning the answer was filed, and the trial of the cause proceeded.
The amended complaint is not for an undivided interest of 875 out of 1,600 feet, but for the entire claim known as the “ Cosser claim,” more particularly described as follows : “ Sixteen hundred feet in length upon that certain quartz lode known as the Comstock lode, being the section of said lode bounded on the north by the claim of the Chollar Silver Mining Company, and extending southerly along said lode, and including all the dips, spurs, and angles thereof, a distance of 1,600 feet of the said lode, being bounded upon the west by a wall of dark green rock, which appears in the ■working shaft of the Bullion Mining Company, at a depth of about 460 feet, and in the working shaft of the Chollar Company at a depth of about 425 feet, having a dip to the east of from thirty to [173]*173fifty degrees, and running in a general north and south course, and bounded upon the east by a heavy seam of clay selvage which appears at the lower works of the said companies, and lies along the-country rock which forms the eastern wall of said lode.”
The case went to trial on this amended complaint. The jury found for plaintiff, and judgment .was rendered for restitution of the property as described in this amended complaint. After judgment an execution was issued, and the Sheriff put plaintiff in possession of certain hoisting works of the appellant. The appellant contending that the judgment did not embrace these hoisting works, moved the Court for an order to reinstate it in possession of said works. This the Court refused. Appellant appeals from the judgment and also from the order refusing to reinstate it in possession of the hoisting works.
We think both appeals must be sustained. The original complaint was for only 875 out of 1,600 feet, or for an undivided inter est of thirty-five sixty-fourths of the whole. This is all the original plaintiffs claimed. t_
If these plaintiffs sold out to the Bullion Company, doubtless it would have been proper to substitute that company as plaintiff, and allow it to conduct the suit in its own way. We do not see that the fact that the Bullion Company had originally been a defendant could make any difference. Here was a suit for mining ground which seems to have extended over the claims of several companies. If one of these companies, sooner than litigate the suit, chooses to buy plaintiff’s claim, it had a right to do so. When that was done, the controversy was settled as to those parties. But in such a ease it would not be improper to allow the suit to continue as to the other defendants. But if continued, it must be the same suit, and not a new one. It must be for the property claimed by the original plaintiffs, and not for that property and other property claimed by the new plaintiff, united by a new declaration to that which was originally sued for.
If A were to sue B for a horse, and then assign the cause of action to C, C could not amend his complaint and charge that B had taken the horse from A, his assignor, and taken a yoke of oxen from C, the present plaintiff. Every one would at once see that this was uniting a new and distinct cause of action, arising to C [174]*174alone, with the original cause of action which arose to A. To allow this jumbling together of new and distinct causes of action, originally pertaining to different parties, would lead to much confusion and to no good. We have seen no precedent for such a practice, and cannot believe it justifiable. In this particular case, the reasons for refusing to sustain such a course are still stronger than in the case supposed.
A Statute of Limitations was passed in the latter part of November, 1861, to take effect December 2d, 1861, which limited all actions for the recovery of mining claims to two years after cause of action arose, but said statute not to begin to run against causes of action already existing until after its passage. When the first suit was brought, the statute had not run in any case, and could not be pleaded. This thirty-five sixty-fourths of the 1,600 feet was by the bringing of this suit protected from the running of the statute. But in a few days after the bringing of this suit, the right to sue for the remaining twenty-nine sixty-fourths of this claim may have been barred by the Statute of Limitations. ,
The appellant claims that such was the case. It certainly had the legal right to try to establish such a defense. It was not good practice to thus mix up two causes of action so as prevent or embarrass such a defense. We mention this as an illustration of one of the many evils resulting from such a practice. If such a practice were allowed, all a plaintiff, who finds himself about to be defeated, has to do to throw the costs on a defendant, is to assign his cause of action to some one who has a good cause of action against the defendant, and let the new party be substituted and unite a new cause of action, which he can sustain, to the old one, which cannot be supported, and thus mulct the defendant in all the costs. Such a practice is without precedent, unjust, and not to be tolerated.
No doubt when a new plaintiff is substituted, ho may, like any other plaintiff, amend his complaint, in a proper case, as to mere matter of form, provided it is substantially the same cause of action as that originally set out. The respondent claims that such was the ease here; that, although the original complaint was only for an undivided interest of 875 out of 1,600 feet, still, if a judgment had been had under that complaint, the plaintiffs would have been [175]*175entitled to possession of the whole 1,600 against the appellant, a mere trespasser.
Upon this point respondent cites several California cases. Some of those cases establish this proposition, that where a plaintiff sues for a tract of land, claiming that he is entitled to the sole possession thereof, and shows on the trial that he is a tenant in common with others in the land, and that he and his cotenants are entitled to the exclusive possession of the property described, he will be entitled to recover the entire tract against trespassers who hold adversely to him and his cotenants. These California cases all seem.to be based on the authority of a case in Day’s Reports, to which we have no access. Whether they are sound or not, (of which, possibly, there is some doubt) we have not thought it necessary to inquire. That is not this case. Here the whole possession was not sued for. The judgment could be for no more than was claimed. If the plaintiffs had obtained judgment for thirty-five sixty-fourths, we know of no law which would have justified the Sheriff in entirely expelling defendants from possession if they had quietly submitted to a common or joint occupancy by the plaintiff with themselves. We have certainly been referred to no authority on this point, and with our present light must hold such a recovery would only have entitled plaintiff to a common possession with defendants, and those owning the other twenty-nine sixty-fourths might become barred before the trial of the first suit.
For these reasons, we think the amendment should not have been allowed, and that the judgment rendered on that amended complaint is erroneous and must be set aside. If the Bullion Company can recover anything in this case, it can only be the thirty-five sixty-fourths sued for in the original action. This Court has ruled that all the tenants in common of an estate may unite in one action under our statute for the possession of the common property. It is not disputed one tenant in common may sue for his undivided fraction. But this Court has never decided, as counsel for respondent seem to think, that more than one and less than all the tenants in common of a piece of land may unite in such action.
This point being one of much difficulty and doubt, we have not thought it necessary to decide, as this case must be reversed on other grounds. In this case the appellants complain, and we think [176]*176not without just ground, of precipitancy and haste in making the order for change of parties, time for filing answer, etc. But, as the judgment is reversed on other grounds, it does not seem necessary to decide whether this undue haste and compulsion on the part of defendants to answer a new complaint, without time for reflection or consideration, would of itself have been sufficient to set aside the judgment.
The action of the Sheriff in putting the plaintiff in possession of the appellant’s hoisting works, was a clear and unmistakable trespass. The complaint on which the suit was tried describes nothing on the surface. It describes a lode (a Cornish word nearly synonymous with vein) bounded by certain rocks which are found, if we may believe the complaint, only at the depth of several hundred feet below the surface. When found at that depth, they are pitching, says the complaint, to the east at an angle of thirty to fifty degrees. Now, if these rocks are the boundaries of the claim sued for, and the rocks come no nearer the surface than two or three hundred feet, then the vein comes no nearer than two or three hundred feet. Eor the vein or lode is the matter contained between those two walls where the walls terminate, there the veins terminate — unless there should be a solid ledge arising from the vein, which supports itself without walls. But counsel for respondent seems to think that in an ejectment plaintiff must recover from the surface of the earth downwards. They seem to think it would be impossible to recover a vein without recovering the surface over the vein. At common law the recovery in actions of ejectment and all real actions, was usually for a portion of the earth’s body or substance, somewhat in the form of an inverted cone or pyramid; the surface of the earth recovered being the base of the figure, and the apex at the center of the earth. But the judgment rendered for a ledge, lode, or vein is quite different. It may include a portion of the earth’s surface, where that surface has been properly located.
The plaintiff would, in case of a surface location, together with the lode following its dips, spurs, and angles, then be entitled to his pyramid carved out of the earth’s body, having its base on the surface and its apex at the center of the earth. But if the lode dipped out of this'pyramid, as they nearly always do, he could also have his judgment following this lode (usually in the form of a solid [177]*177parallelogram) wheresoever it might go — at least as far as it might extend under the public lands. But if a party locates a ledge without any location on the surface, he can only recover the ledge.
If the ledge comes to the surface, as is frequently the case, undoubtedly he is entitled to the surface. But that could only be where the outlines of the ledge are visible on the surface.
It will probably be suggested that if a party locating a ledge does not get any of the surface, he cannot get to his ledge, and the location will be valueless. This, we think, is rather an imaginary than a real difficulty. Nearly all ledges diverge more or less from the perpendicular. The owner has the opportunity of working them from a great many different points. There would generally be no difficulty in finding some accessible point from which the vein might be reached that is not occupied. If all such points are occupied, then he must, like anybody else, buy what he wants.
If we were to hold that a party locating a blind ledge (one which does not show itself on the surface) must have a certain portion of the surface to work his ledge, where are we to give it to him ? Nearly all ledges diverge more or less from the perpendicular. Frequently neither a ledge nor the wall rock inclosing veins or lodes reaches to the surface by many feet — sometimes by many hundred feet. Now, if we are to extend such, veins to the surface, where no particular surface ground has been located, what rule are we to follow ?
If the walls are first found at a depth of two hundred feet below the surface, and at that depth have a dip of forty-five degrees, shall we ascend from the top of the wall rock by perpendicular lines to the surface, and give the ground included between those lines thus produced to the holder of the ledge, or are we to extend imaginary lines from the top of the wall rock to the surface at an angle of forty-five degrees, and give to the ledge-holder the ground between those two lines ? It is eyident there would be a difference of two hundred feet in the location of the two pieces of ground. To adopt either rule would be to endanger the improvements of others who might erect buildings in ignorance of the true location of the ledge. Sometimes ledges change their dip. At one time they may lie nearly flat, at another they may be nearly perpendicular. Sometimes the same ledge, as is claimed in this place, may dip to the west; then, at a certain depth, change and dip to the east. It [178]*178would be impossible to adopt any sensible and practicable rule for extending to the surface the location of ledges or lodes that are located merely by name as extensions of known or marked ledges, where those locations show no croppings or indications on the surface. It is as necessary in every mining locality to have houses for boarding in, mechanics’ and traders’ shops, etc., as it is to have mines. They are as worthy of protection as the mines themselves. We cannot adopt any rule that will sacrifice the houses and shops of one Class of citizens, to promote the -interest of another.
Whilst we depart from the rules of the common law so far as to let the miner follow his lode of quartz wheresoever it may go, even though it runs under public land which was in the occupancy of another before the mine was located ; on the other hand, the occupier of the surface is equally entitled to protection in the use of that surface, if a miner having a senior location should in the course of time be found to run under his improvements. The doctrine of'the common law, that he who has a right to the surface of any portion of the earth, has also the right to all beneath and above that surface, has but a limited application to the rights of miners and others using the public lands of this State. Necessity has compelled a great modification of that doctrine. The departure from those old and established doctrines of the law will, doubtless, lead to many complications. To adhere to the common law rules on this subject is simply impossible. To attempt to. carry out common law doctrines on this point would either give all the houses in Virginia to the mining. corporations, or else all the most valuable mines to those occupying the houses. The well established custom of miners to locate veins of mineral', claiming to follow them with all their dips, spurs, and angles, without reference to the occupancy of the surface, has compelled a departure from common law rules.
In this particular case, a shaft sunk in the hoisting works, which are the subject of controversy, penetrates the eastern wall rock, passes through it, and reaches the vein at the depth of about two hundred and fifty to two hundred and fifty-five feet. At this point the vein is dipping to the east at an angle of forty-five degrees. The eastern wall rock is, of course, pointing toward a spot on the surface (supposing the ground to be level) some two hundred and fifty feet west of the disputed property.. Consequently, if the wall were [179]*179continued, the most easterly portion of the vein would be over two hundred feet west of the hoisting works. If the eastern wall breaks off at any point above or west of where the shaft is sunk, whether a shorter or longer distance, the hoisting works are still in any event east of that portion of the land lying perpendicularly over the vein where it comes nearest the surface.
• But, say respondents, the vein, where it gets to within two hundred feet of the surface, changes and has a downward clip to the west, instead of to the east, as it does at a depth of two hundred and fifty feet. That seems to be the general theory among miners in regard to the Comstock'lode. But there is no evidence that such is the case at this particular point of the vein. There is no evidence here of wall rocks approaching the surface nearer than two hundred and fifty feet of the surface. The only croppings of the ledge spoken of in the testimony are eight hundred feet from the hoisting works.
The surface of the ground on which these works are situated is not described in the complaint, the judgment, or execution.
The Sheriff had no right to meddle with these works, because the plaintiff’s lawyers, witnesses, or somebody else supposed that if certain wall rocks run where, according to their theory, they ought to run, this piece of land would be within those walls.
Respondent makes an argument to prove that hoisting works are a part of the freehold on which they stand ; that these hoisting works were erected especially to work this mine or lode, and therefore appurtenant to the mine, and must go with it. That the hoisting works belong to the realty, and must go with the land on which they stand, we certainly believe to be a correct proposition. If the plaintiff was entitled to recover the land on which they stand, then it was entitled to have the works. If it could not recover the land, it could not recover the works. How the intention with which the works were erected could influence the plaintiff’s right to recover the land on which they stand, we are at a loss to comprehend.
If plaintiff is entitled to recover these hoisting works because they were erected to hoist ores from this mine, it would, upon the same principle, be entitled to recover an assay office in Virginia City, or any other place in Storey County, if one was erected there to assay ore from this mine. The object for which the works were erected [180]*180has nothing to do with the question as to who is entitled to the ground on which they stand.
A tenant in common suing for only a part interest in tlie property cannot recover judgment for the whole.
This Court will not sanction a practice which is unprecedented and calculated to produce complication, and result in injustice, merely because it may be shown that the counsel of complaining party might, by the exercise of great astuteness and readiness, have guarded against the threatened injury.
The fact that hoisting works are erected by a trespasser over a vein of ore, and for the purpose of hoisting that ore, does not give the owner of the vein any right to those works, unless he also is owner, or is entitled to the possession of the very soil on which these works are erected.
The judgment of the Court below must be reversed. The plaintiff will be allowed either to dismiss its action, or to move the Court to reinstate the pleadings as they stood before the order was made allowing the amended complaint to be filed.
The Court will also make an order directing the Sheriff to reinstate the appellant in possession of the hoisting wrnrks from which it was ejected.