Wells, J.
We are of opinion that the supposed accounting and promise to pay referred to in the first instruction, which was given, amounted to no more than an admission of liability, and was entitled to only such consideration as the jury might see fit to accord to it in view of the other testimony. If, in truth, Ennis had no interest in the proceeds of the lode in question, then the alleged promise was without consideration and void, but by this instruction the jury are required to give it conclusive effect; the fourth asserts substantially the same proposition. The eighth authorizes the jury to allow, in the computation of plaintiff’s damages, interest upon a sum of money said to have been paid plaintiff to defendant’s use; the declaration contained no allegation under which even the principal sum so paid could be recovered. Other points in the charge of the court are perhaps liable to exception, but for the error mentioned the judgment must be reversed.
[304] Inasmuch as the cause must be tried again, it will be best that, for the guidance of the lower court, we express ourselves upon the substantial questions which were agitated upon the former trial.
If two or more go into the public domain together to search and explore for mines, with the agreement to occupy and develop such discoveries as may be made for the joint benefit, and such discovery, development and joint occupation follow, it is clear that while each explorer becomes invested with his due share and estate in the premises, no provision of the statute of frauds is violated. The 8th section, which was relied upon in argument, applies strictly to contracts of sale. But, in the case supposed, neither of the parties has, at the date of the association, any interest or estate which can be the subject of sale, and the contract of association does not contemplate that either shall part with any. Nor does the interest or estate which is afterward acquired, vest or inure by virtue of the agreement, but by the occupation and appropriation alone. The terms of the association may, it is true, be referred to, to ascertain the respective rights and interests of the occupants when controversy arises as to these, but this does not at all impair the force of the last proposition. Each associate is the agent of all the others, and every act done by either about the joint adventure is the act of all. In such case, as in the case of partnership transactions, the effect of the contract of association is simply to fix the terms of the agency and to determine how far each may be said to act for himself, and how far for his co-adventurers. Such contract of association is merely the creation of an agency in each of those contracting, and is no more a violation of law than a contract of partnership or association in any lawful calling. The contract of association is equally valid, although, by the terms thereof, one of the associates is to conduct the exploration and perform the work of development, while the others provide and furnish the supplies necessary. Any citizen entitled to avail himself of the privileges conferred by the acts of congress in this behalf may well [305] appoint an agent to do for him all that he might do in his own person. The act of appropriating and developing the mineral deposits of the public domain may as well be performed by another as by the appropriator in his own person. Gove v. McBrayer, 18 Cal. 583.
But if one acting for himself alone discovers in the public domain a mineral deposit, such as mentioned in the acts of congress, he, by virtue of his discovery, merely becomes entitled to a reasonable length of time in which to perfect the development which the local law requires of him; and in the meantime he must be permitted to retain the possession of the premises without interference. His right while he proceeds with the work of development is as absolute as after the development is completed.
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Wells, J.
We are of opinion that the supposed accounting and promise to pay referred to in the first instruction, which was given, amounted to no more than an admission of liability, and was entitled to only such consideration as the jury might see fit to accord to it in view of the other testimony. If, in truth, Ennis had no interest in the proceeds of the lode in question, then the alleged promise was without consideration and void, but by this instruction the jury are required to give it conclusive effect; the fourth asserts substantially the same proposition. The eighth authorizes the jury to allow, in the computation of plaintiff’s damages, interest upon a sum of money said to have been paid plaintiff to defendant’s use; the declaration contained no allegation under which even the principal sum so paid could be recovered. Other points in the charge of the court are perhaps liable to exception, but for the error mentioned the judgment must be reversed.
[304] Inasmuch as the cause must be tried again, it will be best that, for the guidance of the lower court, we express ourselves upon the substantial questions which were agitated upon the former trial.
If two or more go into the public domain together to search and explore for mines, with the agreement to occupy and develop such discoveries as may be made for the joint benefit, and such discovery, development and joint occupation follow, it is clear that while each explorer becomes invested with his due share and estate in the premises, no provision of the statute of frauds is violated. The 8th section, which was relied upon in argument, applies strictly to contracts of sale. But, in the case supposed, neither of the parties has, at the date of the association, any interest or estate which can be the subject of sale, and the contract of association does not contemplate that either shall part with any. Nor does the interest or estate which is afterward acquired, vest or inure by virtue of the agreement, but by the occupation and appropriation alone. The terms of the association may, it is true, be referred to, to ascertain the respective rights and interests of the occupants when controversy arises as to these, but this does not at all impair the force of the last proposition. Each associate is the agent of all the others, and every act done by either about the joint adventure is the act of all. In such case, as in the case of partnership transactions, the effect of the contract of association is simply to fix the terms of the agency and to determine how far each may be said to act for himself, and how far for his co-adventurers. Such contract of association is merely the creation of an agency in each of those contracting, and is no more a violation of law than a contract of partnership or association in any lawful calling. The contract of association is equally valid, although, by the terms thereof, one of the associates is to conduct the exploration and perform the work of development, while the others provide and furnish the supplies necessary. Any citizen entitled to avail himself of the privileges conferred by the acts of congress in this behalf may well [305] appoint an agent to do for him all that he might do in his own person. The act of appropriating and developing the mineral deposits of the public domain may as well be performed by another as by the appropriator in his own person. Gove v. McBrayer, 18 Cal. 583.
But if one acting for himself alone discovers in the public domain a mineral deposit, such as mentioned in the acts of congress, he, by virtue of his discovery, merely becomes entitled to a reasonable length of time in which to perfect the development which the local law requires of him; and in the meantime he must be permitted to retain the possession of the premises without interference. His right while he proceeds with the work of development is as absolute as after the development is completed.
The same is true where one enters upon a mine previously discovered, and to which the discoverer has lost his right by failing to make the development required by the law; from the moment of commencing the labor of development with the bona fide purpose to complete it, and so appropriate the mine, the party has a possession in fact, and for the time being a right to retain that possession. And this right is, perhaps, such an interest in land as cannot be contracted for or disposed of without writing. Brown on Stat. of Frauds, §231. Nevertheless, it may be lost by an abandonment, as all must agree ; for the right, while absolute in the present, exists as to the future only upon condition that the occupant shall perfect the improvement which the law requires, proceeding with reasonable diligence therein ; so that if he desert the premises, though but for a moment, with intent not to resume his labors, his right is gone. So if without writing he yield up the possession to another, the right, which before was in him, passes to his successor in possession ; or rather the right of the first occupant is gone by abandonment ; and by virtue of his occupancy a new right has arisen in him who succeeds. And so, if the first occupant, while his right is still incipient, admit another into possession with him, upon the agreement that the labor.of development shall be performed by the two for their common ben[306] efit, this amounts to an abandonment pro tanto, and if the development be afterward perfected by their joint labors, the better right, which is thereby acquired, inures to the two jointly. The case is not different where the first occupant, pending the labor of development, agrees for a consideration to proceed therewith for himself and another jointly, for such undertaking amounts to an abandonment as to such interest in the premises as he agrees shall inure to that other, and creates an agency, also, whereby every blow thereafter stricken is the act both of him and of his asso ■ ciate. The law will not permit him to put off the agency which, for a valuable consideration, he has assumed. From the moment of entering into such an agreement his occupancy is not only his but another’s also; and the right given thereby is given to both. And if one so occupying for himself and another afterward avail himself of his sole possession to turn the estate into money, his associate may either bring ejectment against the purchaser for his interest and share in the realty, or may at his election affirm what has been done, and treat the money, or so much thereof as may be proportionate to his interest in the premises, as money received to his use, in which case, even without any express promise, assumpsit will lie therefor. But here there was evidence of an express promise, which certainly rests upon sufficient consideration. The defendant below gave evidence tending to show an omission by plaintiff and Thompson to provide the supplies for which, by the terms of the contract, they had become bound. As to this phase of the case, the rights of the parties would seem to depend upon the following considerations: If, by the understanding of the parties, Ennis and Thompson were to provide all supplies necessary to the prosecution of the work of development upon the lode, as the same might from time to time be required, then performance upon their part was a condition precedent to the obligation of Murley to perform; and their failure would, it would seem, authorize him to treat the whole adventure as abandoned. He might then lawfully desert [307] the work and proceed about his other affairs; or, inasmuch as the default of Ennis and Thompson could not have the effect to compel him to abandon his right in the premises, he might, with equal propriety, proceed with and perfect the development of the lode upon his own account. And if he did so, plaintiff cannot be heard to insist upon any benefit under the contract, which he himself had voluntarily abandoned. Whether plaintiff might lawfully claim in such case to be remunerated for what supplies were furnished under the contract, it will probably not be necessary to inquire, inasmuch as all the evidence tending to show a default on the part of the plaintiff, tends also to show that the defendant, before this action, had repaid all advances made, and the jury will probably acceptor reject it in whole. What has been said seems to be a sufficient expression of the views of this court upon all the questions likely to arise in the second trial.
The judgment is reversed, and the cause remanded.
Reversed.