EmeRSON, J.,
delivered the opinion of the court:
The appellant, who was plaintiff in the court below, in April, 1876, brought an action of ejectment against the respondents, to recover an undivided one-third of the Montreal mining claim, and in his complaint sets out a possessory title under a location of the claim on the 6th day of June, 1873, and a subsequent compliance with the mining laws and customs by the locators and their grantees. The appellant alleged title by a grant of one-third (five hundred feet) from two of the locators, on the 19th day of December, 1874; an ouster by respondents April 10, 1876, and a subsequent unlawful withholding.
The complaint also contains a second and equitable cause of action, for an accounting for one-third of the profits of working the mine, and asking both a provisional and a perpetual injunction and a receiver.
In May, 1876, the respondents answered to the first cause of action by denying the title of the appellant, and the alleged possession and ouster, and to the second cause of action by further setting up a possessory title to an older mining claim called the No You Don’t, and that the alleged Montreal vein, and the only vein in that claim, was a part of the No You Don’t vein, and belonged to the respondents.
In this part of the answer the respondents admitted they were in possession of the vein, claiming to own it, but they set up no claim of title to Montreal surface ground.
The facts set out in the answer to the second cause of action were pleaded both as a defense, and as a counter-claim and basis for affirmative equitable relief, quieting their title, and for an injunction.
To this part of the answer, as a counter-claim, the appellant interposed a demurrer, which was not disposed of until after the trial of the law issue.
[184]*184On the 10th of March, 1877, the respondents, on motion, were permitted to file a supplemental answer, in which they set up that since the commencement of the action they had acquired patent title from the United States for the No You Don’t, the Nez Perces Chief, the Third Westerly Extension of the Telegraph, the Roman Empire, and the Montana mining claims, and also a certain interest in the Grecian Bend mining claim; that all these were on the same lode or vein; that the course and apex of the lode was in the No You Don’t claim on the top of the hill, and that the parallel end lines of the No You Don’t claim extended vertically and continued in their own direction down the dip of the vein toward the Montreal mining claim, included all of the vein in the Montreal; also, that the other claims mentioned, with a like extension of the end lines, would include, some of them all and others a portion, of the vein in the Montreal. That a portion of the surface ground of the Montreal was within each of the Montana, the Roman Empire and the Grecian Bend mining claims, and that the Roman Empire embraced the Montreal discovery point.
The locations of these claims, excepting the Nez Perces Chief, are alleged to be prior to the location of the Montreal.
The motion for leave to file this supplemental answer was served by the respondents on the appellant, and a copy of the answer was served with the motion papers.
A jury trial was had in the Third District Court, commencing April 30, 1877, which resulted in a verdict and j udgment for the respondents.
A motion for a new trial was made and overruled, and the appellant brings the case to this court on an assignment of various errors in law occurring at the trial.
Before the trial commenced the appellant filed his motion to strike out parts of the supplemental answer, on the ground that the parts mentioned in the motion were immaterial, redundant and irrelevant, constituted no defense, and that many of the facts existed at the time of filing, and were inconsistent [185]*185with, the original answer. The' parts specified in the motion included the whole of the supplemental answer except a few introductory lines.
The refusal of the court to grant the motion is the first alleged error.
The Practice Act, O. L., § 1291, provides that “ the plaintiff and defendant respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer; that the making of supplemental complaint or answer shall not be a waiver of the cause of action set up in the former complaint, or of the defense set up in the former answer.”
C. L. § 1282, provides that, “ if irrelevant or redundant matter be inserted in a pleading, it maybe stricken out by the court on motion of any person aggrieved thereby.”
It is also provided, C. L. § 1481, that “ in an action for the recovery of real property, when the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and. judgment shall be according to the fact, and the plaintiff may recover damages for withholding the property.”
The respondents in their original answer to the first cause of action had not set out any title in themselves. On the trial under that answer, they could have shown in themselves any title or titles sufficient or tending to defeat the action, and-which they held at the time of its commencement. Had they then held the titles set out in the supplemental answer, it would not have been necessary to plead them specially, but as they accrued afterward, it was necessary to set them out specially, in order to comply with the provision of the statute that the “ facts material to the case,” arising subsequent to the former pleading must be alleged, and in order to enable the court, on motion, to see that the alleged facts are material. Neither could the respondents on trial, and without a supplemental answer, have put these patents in evidence, under [186]*186§ 3481, for the purpose of defeating the action from the date of the patents, and limiting a recovery of damages to that time. Moss v. Shear, 30 Cal. 467; Hardy v. Johnson, 1 Wall. 374; Bagley v. Ward, 37 Cal. 121; Reitz v. Lancaster, 39 Cal. 354.
These decisions are made under the same statutes as ours, and in effect limit the words “but if it appears that his (plaintiff’s) right has terminated during the pendency of the action,” occurring in § 1481, to cases where it so appears on the plaintiff’s evidence, and they expressly decide that the affirmative fact that the plaintiff’s right has ceased pending the action cannot be shown as a defense unless pleaded supple-meutly.
It, therefore, appears that the respondents could have made no use of these patent titles unless they were pleaded in a supplemental answer.
The titles set out in the supplemental were not inconsistent with the oi’iginal answer, which set out no special title in the respondents, and they were not immaterial because it is alleged each covers and grants some part of the demanded premises.
A patent from the United States for any portion of the premises in controversy cannot be immaterial or irrelevant as evidence of title in an action of ejectment.
It is further argued that the supplemental is inconsistent with the original answer because it pleads several patents, and lienee assumes as many different veins, while the original answer alleged one continuous vein from the No You Don’t down to and beneath the surface of the Montreal. This last allegation is found in the answer to the equitable cause of action, and assuming that that answer constitutes a part of the pleadings on the law issue, (a position not affirmed or denied,) it is not clear that there is any inconsistency in this respect. This question will be more fully considered hereafter in connection with other alleged errors.
Another objection to the supplemental answer is that many of the facts existed at the time the original answer was filed. [187]*187The supplemental answer does not plead as a defense anything but the subsequently acquired titles. In respect to the claims patented it does not allege their location, the citizenship of the locators, their subsequent occupation, and the performance of wort or mating improvements thereon, or any compliance with mining laws and customs, either specially or prior to the patent; nor is there any general averment in order to establish an independent possessory title under the mining laws. Neither on the trial did the respondents give any evidence of such compliance with mining laws, but in their instructions asked, they insisted that their patent titles were not only sufficient but conclusive evidence of title in the action. The only evidence of work done on these claims as assessment or. statute work, appearing in the respondents’ evidence, is in the cross-examination of respondent, Holden, by appellant’s counsel.
The locations of the patented claims are pleaded under a recital of their dates, and it is alleged the patents were issued on proof to the proper officers of a compliance with the mining laws. These facts are evidently stated for the purpose of giving relation to the effect of the patents as evidences of title, and for that purpose they were competent in a supplemental answer, although the facts existed prior to the original answer. In legal effect they were a part of the patent title.
These views render it unnecessary to determine whether as a question of practice the motion could be properly made at that time and in that manner. It is not the usual way to settle issues. It would be better practice to bring motions designed to affect the pleadings and settle issues to a hearing before the cause is called for trial. Smith v. Countryman, 30 N. Y. 655.
When the court permitted the pleading to be filed its materiality was passed upon, for it is only material facts which are allowed to be thus pleaded. The motion required the same court, and on the same state of facts, to review its former order, to which no exception appears to have been taken. At all events the appellant had and exercised the right to object to evidence, under the pleading.
[188]*188On the trial the respondents- put in evidence the several patents named, the location notices of the several claims patented, a chain of conveyances' from the locators and their intermediate grantees down to the patentees and respondents, and proved that the applications for the several patents were made under the location notices offered and received in evidence.
To each instrument in these chains of title the appellant objected that it was immaterial, irrelevant and incompetent, and the second and third assignments of error are based on their reception in evidence.
In respect to the patents, the objection follows the motion to strike out the supplemental answer, and it has already been said that is not immaterial, and hence evidence tending to support it must be held material.
Patent titles, when granted, relate to the first initial valid step, which is the foundation of the right and in pursuance of which the patent is issued. Stark v. Starrs, 6 Wall. 402; Yount v. Howell, 14 Cal. 465; Ely et al. v. Frisbie et al., 17 Cal. 250. Numerous cases to the same effect might be cited.
As the location is the first step in the acquisition of mineral lands and the foundation of the title thereto, the respondents following the allegations in their answer put these location notices in evidence. They are not set.out in the record, but as chains of conveyances down to the patentees and respondents, were put in evidence, it may be assumed that the respondents were not the locators, and if not, then the connection between the patent and the location notice was not complete, even for the purposes of relation, until these connecting evidences were put in. Without them the respondents would have patent title, but it would not appear that that title was connected with the location notices. For the purposes for which this evidence was offered it was clearly admissible and material, unless the argument that portions of it were repugnant to both the original and supplemental answers be well [189]*189founded; and this question in connection with others will be hereafter considered.
The fourth assignment of error relates to the admission of what is called expert testimony.
Whether or not the witnesses were competent to speak as experts, was a question of law, to be decided by the judge on the trial. The evidence of their competency or otherwise is not set out, but only a general statement embodied in the record giving the result of their testimony on this point, and from that general statement there does not appear to be any error in the ruling so far as competency is concerned. The objection to the testimony seems to be based on the ground that a full tracing was claimed by respondents between the No You Don’t and the Montreal, and that the witnesses should only state what they saw in the connecting works, leaving the jury to determine the question of continuity without an opinion from the witnesses. In brief, that the subject matter was not a proper one for expert testimony.
Expert testimony proper is given on questions of science, skill or art, by persons educated or experienced, and deemed competent to speak concerning the matter in issue. Such persons may give their opinions in evidence, not only on facts within their own observation, but on facts detailed by-other witnesses, or on a hypothetical case stated. They may also in certain cases, give their opinion as to the existence of latent, or invisible or unknown facts or things, from other facts indicatory of them. As a general rule, however, as to matters which are open to common observation, and in regard to which a jury are supposed to have knowledge or experience, the witness must state the facts only and may not give opinions. There are many exceptions to the last rule, and many cages in which witnesses having no special education or experience in the matter, and on subjects open to common observations, may state opinions; and these opinions, although sometimes classed as expert testimony, are not such, and rest on a different reason and necessity. In these cases, however, the [190]*190witness is never allowed like tbe expert, to state an opinion as to the existence of latent facts from the apparent ones, nor on facts related by other witnesses, nor on a hypothetical case, but only to give his opinion on facts observed by himself, and the witness is distinguished from the rest of the world, not by any special aptitude, but only by the opportunity he has had to see the subject matter. In these cases, where the facts are too minute, numerous and evanescent to be given in detail, the witness, after stating his observations and describing the facts to the best of his ability, may state his opinion, which is the result of the grouping of those minute facts. Such is the case in questions of hand-writing, insanity, genuineness of a postmark, the state of health or of the affections of a person, the value or identity of property, the condition of a person as to sobriety or drunkenness, and numerous other cases. A witness who saw a person write but once, and that twenty years before the trial, has been allowed to give his opinion whether a signature was genuine.
In cases of handwriting, disputed identity and many other cases, it would be impossible for the witness to describe to the jury the difference between the different signatures, persons or animals, with sufficient minuteness to enable them to determine the case, and opinions must of necessity be taken. In this case the evidence on the question of continuity of lode is not brought up, and from what appears it is not easy-to say, either from the pleadings or evidence, whether or not it appeared there were openings on the veins from the No Tou Don’t to the Montreal, unless the works shown by the maps are assumed to be all on one vein, a point disputed by the appellant. If the openings on the veins were not continuous, it would be a case for expert testimony and opinions might be taken as deductions from what did appear. If the openings were in matter, claimed to be continuous vein matter, still it has been the constant practice in this Territory and in California, to receive the opinions of witnesses in cases when the claim of continuity is disputed. If the subject matter was [191]*191one of common observation and of which a jury was supposed to have knowledge and experience, on a description of the mere facts, why did a large number of witnesses who saw these facts differ so widely in their conclusions? So far as the ease appears from the record, there does not appear to have been any error in receiving the testimony of experts.
But if it was not a case for strictly expert testimony, it was one in which a bare statement of the facts observed by the witnesses would not give the jury sufficient knowledge to determine the issue. In such case it must first be assumed that the jury know what constitutes a mineral vein, what matter and quality of matter and appearances prove continuity; and, then, that the witness can give the numerous and minute facts in evidence so clearly that the jury can get a full understanding of them.
While opinions are not the safest evidence, and are liable to lead to great abuses, when they constitute the best available form of evidence they must be resorted to from necessity.
It was admitted on the trial that the vein, from the Montreal up to certain points marked on the maps, was continuous. The respondents claimed it was continuous to the No You Don’t discovery. Hence the point or points at which the continuity was contested must have been at or above those marked on the map, and the respondents were allowed to give evidence that the points marked were within the surface lines of the Nez Perces patent, and on the admission of this evidence the fifth error is assigned.
The appellant claims that this evidence is contradictory of the sworn allegations of the answer. The parties agree on the continuity up to certain points in the workings, and the effect was to confine the dispute to the ground above. It was surely competent for either party to show the court and jury the surface points vertically beneath which the agreed points in the underground works were situated, and such is the whole scope of the evidence. It merely fixed the surface as well as underground points at which the dispute began, and had no tendency [192]*192to contradict anything in the pleadings. This question, however, is argued on the supposition that the evidence tended to prove two veins, or was introduced as a foundation to give effect to the Nez Perces’ patent, and hence was repugnant to the respondents’ answer. While this effect of the evidence is not very obvious yet it will be considered in connection with the objections to the supplemental answer, and to the chains of title introduced by respondents, based on their alleged repugnancy to the answer, questions which have been passed by above. All these objections are on the claim that the respondents, inasmuch as they set up that the vein is continuous, and that the No Tou Don’t patent carries it, cannot show any other title to the demanded premises.
The appellant in his brief says the issue was on the continuity of vein.
The issue really was as to the ownership and right of possession of the demanded premises. Had the respondents held these patent titles at the commencement of the action, they could have put them in evidence, if they tended to prove title to any part of the premises in dispute; and if any one or all of them covered the vein for the entire length of the dip, that fact could have been shown.
By pleading these titles specially and alleging all were on the same vein, but that one conveyed the whole of it, were they deprived of the right to use the other titles?
No case has been cited establishing any such rigid rule of pleading. The issue being as to the title, the respondents alleged they had it by various grants. It is true they alleged the vein was continuous, and one title sufficient; but the allegation that there was but one vein must be regarded as the opinion of the respondents. The evidence given shows that statement was a matter of opinion and belief, and not a well known visible fact apparent to common observation, and concerning which those who had opportunity for observation could not differ; for, at the trial, a large number of witnesses, and with the aid of a year’s additional work and developments, [193]*193subsequent to the making of the answer, did differ on this question.
The case is analagous to one of boundary. If a defendant is sued in ejectment, may he not plead that the demanded and other premises all belonged to his grantor, that he has three or more several deeds from the grantor: the first being for premises within the bounds of which lie the demanded premises; the second, for a smaller tract, but including the demanded premises; and the third, for a still smaller tract, but also including the demanded premises? There seems to be no repugnancy in these allegations, and if this question of boundary was one of doubt, and the defendant failed to establish that his first title included the disputed ground, there would seem to be no reason why he might not defend on the other titles.
The allegation that the Nez Perces Chief and Third "Westerly Extension of the Telegraph claims were on the same vein, was in effect alleging that they held the vein if the No Yon Don’t did not. There is a hypothesis in the position to this extent; the respondents say, we own the vein’under the No You Don’t patent; if not under that, then under other titles.
There is no hypothesis on the issue of ownership; the allegation is positive on that point. The hypothesis only relates to which of two or more titles carries the premises, and in no wise prejudices the appellant, between whom and the respondent the question is, who owns the premises; not under what particular title .it is owned.
The sixth error assigned is on the exclusion of evidence offered by the appellant to show the No You Don’t location had been abandoned; that the application for said patent was a fraud on the appellant, and the patent had been obtained on false proofs. This was offered to show that the respondents could claim no rights under that patent in this action.
The seventh assignment of error is on'a like offer respecting the Roman Empire patent, but such offer does not appear in [194]*194the record. The whole question, however, is raised by the single offer appearing.
It is manifest the appellant and respondents held widely different views as to the effect of the patent titles; the latter claiming they were conclusive evidence of title in the action; the former that they were only prima facie evidence and could be attached and shown to be invalid.
The practice act provides that there shall be but one form of civil action for the enforcement of private rights, or the redress of private wrongs, but the inherent-distinction between legal and equitable causes of action, and the remedies appropriate to each are not changed. Zeile v. Moritz, 1 Utah, 283.
It is also provided, O. L. § 1263, that the only pleadings on the part of the plaintiff shall be the complaint and demurrer to the defendant’s answer, and § 1290 provides that “ the allegation of new matter in the answer shall, on the trial, be deemed controverted by the adverse party.”
It is conceded that in an action of ejectment, in certain cases a patent of the United may be shown to be invalid; instances are, if the patent is void on its face, or issued without authority, or its issue prohibited, or when the government byreason of a prior grant had no title. The distinction between such cases, and those in which the patent is held to be conclusive evidence of title in an action at law is this: "Where the government had the title, and it passed by the grant, it can only be recalled, or made subject to equitable interests of other parties by an action in equity brought for that purpose. In such cases, although fraud may have been practiced, or other parties hold superior equities, the patent is not void, but only voidable in equity. If, however, the government does not have the title, or the issuance of the patent is unauthorized or prohibited by law, no title passes by the grant, and this fact may be shown at law or in any court in which the void instrument is produced as evidence of title. The adjudged cases in regard to the effect of patent title' are too numerous to cite, but an examination of the cases cited by the respective counsel [195]*195in tbis case will be sufficient to justify this principle of distinction. It is unnecessary to cite authority that a conveyance otherwise formal and between competent parties is only voidable at the instance of parties defrauded, and that if they acquiesce, the conveyance is good, notwithstanding the alleged fraud. It is argued, however, that the patent was issued without authority, and was therefore void, if the No You Don’t claim had been abandoned, or the other facts existed which the appellant offered to show. The want of authority which will make an instrument of this kind void, is a total want of authority to issue a patent for the subject of the grant, not a latent' impropriety in exercising the authority, by reason of unknown imposition moving to its exercise, when the proofs authorizing the act are formal and sufficient.
"The case on trial was strictly a law issue, tried as such before a jury, and in addition to the objections that a 'patent which passes title cannot be impeached in such an action, and before a court so constituted, there are other serious objections arising out of the state of the pleadings. "While it is conceded that, under the system of code pleading, an equitable defense may be set up in an action of ejectment, it is also well settled that such defense must contain all the essentials of a bill in equity, and the issue thus made is triable by the court without a jury, as an equitable issue. Gibson v. Chateau, 13 Wallace, 92-103; Basy v. Gallagher, 20 Wall. 680; Bruch v. Reason, 42 Cal. 349; 34 Wis. 486.
The appellant contends that he had no opportunity to attack the patents by his pleading, and that the statute controversion of the answer gave him the right to introduce evidence as fully as if he had brought an action in equity — that is, to show everything necessary to overcome the defense set up>. This claim cannot be maintained to such an extent. Under the statute the plaintiff can undoubtedly show any matter strictly controverting the answer; but in so doing cannot introduce into the case, by his evidence, a new cause of action. Yet such was the attempt here. The appellant had brought his action affirming [196]*196be bad the better legal right. On the trial he sought to recover on an equitable cause of action, which in effect admitted the superior legal title of the respondents, but claimed there were equitable grounds for subjecting that legal title to his better equities. A verdict of the jury for the appellant based on such grounds, followed by judgment, would leave the parties in an anomalous condition. There would be a verdict and judgment at law against the respondents while they held and continued to hold the better legal title.
There would be nothing on the record to show why this was given, and no judgment subjecting the legal title to the appellant’s equity, by an injunction against enforcing it or by a decree for its conveyance, nor in fact anything to show why such a judgment had been rendered. The cases cited to show that an equitable defense- might set up establish nothing in favor of a plaintiff in such a case as the one before us, because as shown, an equitable issue is there made and tried as such, and before a court competent to give a judgment suitable to the demands of the case, and after that issue is tried then the legal issue is disposed of with the aid of the judgment of the court on the equitable issue, which, if it subject the legal title to the equity of the defendant, leaves the defendant with the better title on the trial of the legal issue.
Considering the peculiar nature of this action of ejectment, and that it is a question as to which has the better title, it would seem that before a defendant can prevail on an inferior or equitable title, he must first, in equity, subject the better title to him; and so are the authorities under similar statutes to' those prevailing in this Territory. 15 Barb. 365; 34 Wis. 486; 35 Wis. 631.
In the case in the 15 Barb. Judge Hand says: “I do not understand there is any equitable defense, simply as a defense, in an action of ejectment. The effect of that might be to keep the legal title and the possession forever separate.”
This case is followed by the others cited, in which it is in effect held, that where an equitable defense is set up in an [197]*197action, of ejectment against a better legal title, it must not only be as a defense but as a counter claim. The defendant must become an actor and ask affirmative relief. This will be made more apparent by a reference to the nature of the proceedings before the code. Had the appellant brought an action of ejectment on a better title, the respondents, under the old system of pleading, must have stayed the action, filed their bill in equity, become actors asking affirmative relief, and subjecting the legal title to their equitable rights. These principles are not changed by the code. There are, therefore, no analogies to support the appellant’s proposition in the provision allowing equitable defenses.
It is manifest that the statute denials of the answer cannot take the place of a bill in equity on which to grant, affirmative equitable relief, nor could the jury on the trial of a law issue give any such relief.
Some cases may be found where conveyances under State laws are declared void when made under certain circumstances, and where they have been permitted to be shown to be void in actions at law. These cases depend on State statutes, and are not like the one now under consideration; and in case of a United States patent it is not competent for any State or Ter-torial legislature to say what its effect shall be, or to avoid it otherwise than in accordance with the settled rules of jurisprudence.
Although not within the assignments of error, it was argued that the evidence showed the patents lying below the No You Don’t void, because the respondents alleged there was but one vein. The evidence tended to show that the strike or outcrop of the vein ran northeasterly and southwesterly, and that the No You Don’t is laid on the general course of the vein.
It seems to be conceded, and this objection is based on the assumption, that theNez Perces Chief and the Third Westerly Extension of the Telegraph occupy different sections on the dip of the vein, if there is but one. If, as respondents claim, there is but one vein, then it is claimed by the appellant there were [198]*198no mineral discoveries upon the locations of the two claims last named, and no veins which could be patented with the surface, and that as the respondent, Holden, testified he knew, at the time these patents were applied for, that all were on the same vein, the patents are void. The appellant, as has already been shown, is not in a position in this action to avoid these patents for these reasons.
It cannot be doubted but that the patents passed whatever title the government had to the surface, and any vein or veins beneath it not otherwise granted. As to the surface, it is a matter between the government and the respondents; the appellant has no standing in that respect.
It will be seen by a reference to the maps in evidence, that each of these patents cover different lengths on the vein, not within the protracted end lines of any other patent, so that each does cover a portion of the vein not embraced in other patents.
As to a mineral discovery, the law requires that the land located must belong to the United States, and that no claim shall be located until the discovery of the vein within its limits. The patents presume a compliance with the mining laws, and there is no proof that a lode was not discovered within the limits of each claim. The maps show extensive workings beneath each. The law was complied with if a lode was discovered, and the locations were not void because by subsequent developments it might prove to be on the dip of a section of the lode previously located. The question would then arise between the claimants, and the older claimant might or might not insist on following his lode as he chose. At all events, before he did so, and before the second locator was ousted from the possession, the later claim would be patentable as mineral land containing a lode.
The government holds its mineral lands for sale, and its officers are not restricted from granting such of them as contain a mineral lode because at some futnre time one locator may trace out another. These are questions concerning which [199]*199the government does not inquire. It is enough that there is a lode in the ground in possession of the claimant, who in respect thereto has complied with the mining laws. Neither can it make any diiference that the several claims have come to the possession of one party.
The eighth assignment of error is on the instructions given for the respondents from number two to twenty inclusive.
The second instruction is objected to on the assumption that it overlooks rights which may be acquired by bare possession and without other right. The instruction, in terms, seems to admit such rights may exist.
The third instruction is substantially in the words of the law, and if the appellant desired a fuller explanation he should have asked it. The appellant, while setting out in his complaint the location of the Montreal, nowhere alleged that it was marked on the ground, or that it was located in accordance with the requirements of the act of Congress; nor did the answer of the respondents admit the regularity of the location.
Appellant, in his brief, refers to the answer to the cause of action for an accounting, which was not before the court as a pleading in connection with the trial of the count for ejectment, nor put in evidence as an admission.
The objections to the instructions from four to fourteen, inclusive, and those numbered eighteen and nineteen, are disposed of by what has been previously said, and require no further explanation, except as to the eifect of the Nez Perces Chief patent. That patent is founded on a location junior to the location of the Montreal, and the court on the trial gave the same conclusive effect to this as to patents founded on older locations. In accordance with the views previously stated that patent granted a perfect title in this action to whatever was the subject of the grant, at least from its date, and hence was a defense, if it carried the Montreal vein, to the extent provided by O. L. § 1481. But as the respondents proved the date of location, conveyance of the possessory title down to [200]*200them, the date of entry, and that the patent was founded on that location, it was given effect by relation to a time anterior to the commencement of the action.
This legal effect is a part of the patent title and overreached the appellant’s action, and the date of the acquisition of his title.
The fifteenth, sixteenth and seventeenth instructions relate to Montreal surface ground, outside of any of respondents patents, concerning which nothing has been heretofore said. The respondents denied the alleged ouster, but it was proved that they occupied portions of the area, bounded by the side lines, from four to five hundred feet in length. From the evidence it would seem this portion is near the works of the mine, and whether any or what portion of this length is within the Roman Empire patent does not appear, and it must be assumed the respondents took possession of some part of the surface outside of the lines of that patented claim. It is not claimed the respondents had any title or right of possession to this surface. The instructions given are based on the contingency that the jury should find the respondents owned the Montreal vein; and as a locator has no right to the possession of mineral land except as the possessor of a vein in it, that the appellant had no title or right of possession to the surface. It is argued that if appellant had no title or right of possession, but had the actual possession, he could not be ousted by one also without right. This is unquestioned and is clearly implied in the instructions. The question was whether the appellant had possession. If he was without right of possession, he must have had such a possession as would enable him to maintain trespass. This was the question submitted to the jury, and it becomes necessary to look to the evidence to see whether the case was so clear for the appellant that such submission was error.
The appellant testifies that he and his co-owners, Berassa and Duronzo, worked the mine, dividing profits, until February, 18T6. The two co-owners then sold out to Morris, and [201]*201he to Wadsworth, Myers and others, who went into possession and worked ’the mine, but never accounted to the appellant, and he adds, “after Berassa and Duronzo sold out I was not in the actual possession of it; I was out when they (Wads-worth and others) took possession of it, and never been in possession since; that was in February, 1876.”
The testimony of John W. ICerr, one of the purchasers of the two-thirds interest in February, 1876, is, in substance, that while they worked the mine, the appellant was never in possession or had anything to do with it, and his right to an accounting was denied. He also gives the names of the parties interested on page 107 of the record, where the name of “King” is evidently misprinted “Kahn.”
The testimony of this witness, and also the testimony of the respondent, Holden, show how the respondents acquired possession of the Montreal vein, and so much of the surface as they occupied. After claiming they had traced out the Montreal from the No You Don’t down, they commenced an action against those working the Montreal and obtained a preliminary restraining order. A settlement was then made by which the respondents purchased of the possessors of the Montreal other mining property and the possession of the Montreal.
The witness Holden, in regard to this says, he “ purchased this piece,” and that the main object was to get possession of the property and continue to work without interruption. The occupants turned over the possession to the respondents.
In this state of the evidence there was no error, at least as against the appellant, in submitting to the jury the question of the possession of the appellant at the time the respondents entered. Assuming the contingencies submitted, that the appellant was ■without right, it does not seem he had such a possession as would enable him to maintain trespass.
The appellant also objected to, and assigns error on, the twentieth instruction. Under the evidence there seems to be no error in this.
The alleged error is based on the assumption that the [202]*202respondents having purchased two-thirds of the Montreal, became tenants in common with appellant, and are estopped from denying that title. The respondents do not, in the action, set up that title, or claim under it. It is a fair inference from the evidence that they did not enter under that, but under the claim of an adverse title; at least the evidence on this point was sufficient to submit the question to the jury, and the fact that the respondents paid the owners of the two-thirds interest something, pending litigation, to get out of the way and yield the possession, cannot bind them to any allegiance to that title. In so far as the instruction relates to a mining partnership, it is fully supported by the evidence, or rather^ want of evidence of such a relation.
As most of the instructions asked by the appellant are the converse of those given on the part of the respondents, it will not be necessary to notice them in detail.
The third instruction asked was erroneous because it declared it was sufficient if the notice of location described the claim. The law provides, not only for a description in the notice, but also that it shall be marked on the ground. The instructions numbered from the fourth to the tenth inclusive were properly refused. They seem to be based on the idea that the respondents entered under the Montreal title and then bought in the adverse title. There is no evidence of this kind.
From the verdict of the jury it is evident that the question of what is or is not a mining partnership could have nothing to do with the case, and did not enter into their consideration of it.
The eleventh and twelfth instructions asked by the appellant have been passed upon in considering other propositions.
The thirteenth instruction recites that the appellant claims one-third of the surface and vein of the Montreal; therefore, if the respondents own the vein, he is entitled to surface.
It will be seen this asks the court to direct a verdict for surface ground, and wholly ignores the question of the sufficiency [203]*203of bis possession to maintain tbe action irrespective of right, and even assuming the jury find he is without right.
The instructions given at the request of the parties and by the court, fairly submitted the questions raised, and the judgment should be affirmed with costs.
Schaeffer, O. J., concurs.