or even to pay interest, the acquiescence of the plaintiff in defendants' continued possession, with a knowledge that they were working and developing the property, in view of the laches of the plaintiff in not offering to refund, and in not demanding an account, and in not instituting an action for a period of seven years, with the further consideration that the defendants were not trustees ex maleficio, we are of the opinion that the rule applied to defendants' claim was too narrow and illiberal.

Jones, in his work on Mortgages, says: "A grantee in possession under a deed absolute in form, but given by way of security merely, is said not to stand exactly in the same position, in reference to accounting, as an ordinary mortgagee in possession, inasmuch as he is the agent of the mortgagor as well as the mortgagee, and is chargeable for any failure to obtain the full rental value of the premises, only on the same ground that an agent would be. If the grantee has good reason to consider himself possessed of an absolute estate in the land, and he consequently makes permanent improvements, he will be entitled to allowance for these, when a mortgagee generally would not be entitled to such allowance." 2 Jones, Mortg. (3d Ed.) 1117 To this effect is the case of Barnard v. Jennison, 27 Mich. 231. These authorities say that grantees in possession under a deed absolute in form, but given by way of security, do not stand in the same position, in reference to an accounting, as ordinary mortgagees who take possession in order to enforce their security; they are regarded as agents of the grantors as well as of the mortgagees. As such agents, they are justified in making such permanent and beneficial repairs and improvements as a prudent owner would deem it to the interest of the property to make.

The case of Mickles v Dillaye, 17 N. Y 80, was that of a mortgagee in possession, under circumstances which induced him to believe that he had the legal title. The court said: "The judgment of the supreme court should be reversed as respects the accounts stated by the referee, and there should be a reference in that court to take an account between the plaintiff and the defendant Dillayo, in which the latter should be allowed the enhanced value of the premises, on account of the improvements made by the defendant." Also Bacon v Cottrell, 13 Minn. 194, (Gil. 183.)

In Harper's Appeal, 64 Pa. St. 315, it appeared that Harper was in possession under a deed absolute in form, but held to be a mortgage. And a claim for costly and permanent improvements, made without the consent of the mortgagor, was put forward. The court in that case said: "The mortgagor was sui juris, competent to contract and manage his own business, and agreed that he [the mortgagee] should take the estate as absolute owner. It is only upon the ground of a general policy, for the protection of needy debtors from the oppressive demands of their greedy creditors, that the principle has been established that such a transaction shall be regarded in equity as a mortgage; and once a mortgage, always a mortgage. Will it be equitable, under such circumstances, to decree a reconveyance of the property, increased in value by substantial and valuable improvements and repairs, at a large expenditure of money, in the most perfect good faith, without any allowance therefor? Such a result would, in our judgment, be in the highest degree inequitable, and not in accordance with the liberal principles upon which courts of equity proceed in analogous cases."

Numerous other cases are referred to in briefs of counsel, but we do not regard them as analogous to the case in hand. In some of the cases a mortgagee under an ordinary mortgage had taken possession, and made costly improvements, without the consent of the mortgagor. In such cases the mortgagee will not be permitted to place such impediments in the way of redemption. He cannot prevent redemption, or render it more difficult, by requiring the mortgagor to pay for costly improvements. In other cases the trustee was chargeable with fraud,-held to be a trustee ex maleficio.

But in this case the defendants were in under a deed absolute in form, with the knowledge and consent of the plaintiff, and were obliged to occupy and work the mine themselves, or by their tenants, in order to reimburse themselves for their advances; the plaintiff failing to do so. As a general rule, the value of a mine is made manifest by large expenditure of money. Should such work be regarded as an improvement when it brings to view valuable ore bodies? The development work upon this mine brought its value to light, and then the plaintiff became anxious to repossess it. A decree giving to the plaintiff the property, and the market value of the ore, after allowing the cost of its extraction, raising to the surface, and transportation, and the expenditures for developing and improving the property, to the extent that the value was enhanced thereby, would appear to be just to both parties. If the plaintiff has been paid any portion of the money it now claims through the enhancement of the value of the property, would it be equitable to require the defendants to pay again? Nor would it be just, under the circumstances in evidence, to assess damages against the defendants as punishment.

We are of the opinion that the decree should have allowed to the defendants their reasonable expenditures, in developing and improving the property so far as its value was increased by such development improvement, in addition to the expenditure directly contributing to the extraction of the ore. The other errors assigned are overruled, and the final decree of the court below is reversed, and the cause is remanded to that court, with directions to further find whether the property was benefited by the expenditures of the defendants, and their predecessors in interest, for work and improvements on the property not directly contributing to the extraction of the ore; and, if the court finds that such expenditures did benefit the property, further to find how much such benefits enhanced the value of the property; and to that end to take additional testimony, if necessary, and to make such further orders, and to render such decree, not inconsistent with this opinion, as may be equitable. BOREMAN, J., dissents.

HENDERSON, J., concurs.

(73 Cal. 482)

AMADOR QUEEN MIN. Co. v. DEWITT. (No. 12,030

(Supreme Court of California. September 28, 1887.)

EMINENT DOMAIN-CONDEMNATION OF MINING PROPERTY BY PRIVATE CORPORATION. Plaintiff, a private corporation, owned two mining claims, and between them was located a mining claim owned by defendant, through which he had constructed a tunnel for his private use. This tunnel the plaintiff sought to condemn, for the purpose of enabling it to work its mines. Held that, plaintiff being a private corporation, the action could not be maintained under Code Civil Proc. Cal. ? 1238, sub. 5,-which authorizes the condemnation of “roads, tunnels, ditches, flumes, pipes, and dumping places for working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse-matter from mines,"-so as to appropriate the property of the defendant to the private use of the plaintiff.

Commissioners' decision. Department 1.

Appeal from superior court, Amador county; C. B. ARMSTRONG, Judge. Stewart & Herrin and John A. Eaton, for appellant. Geil & Morehouse, for respondent.

BELCHER, C. C. This is an action to condemn a right of way through a tunnel under defendant's mining claim. The facts of the case as they appear in the complaint may be briefly stated as follows'

1That the state has no right to take private property for any but a public use, and as to what are such public uses as will justify the exercise of the right of eminent domain, see Johnston's Appeal, (Pa.) 7 Atl. Rep. 167; Heick v. Voight, (Ind.) 11 N. E. Rep. 306, and note; Sholl v. Coal Co., (Ill.) 10 N. E. Rep. 199; In re Railroad Co., (N. Y.) 8 N. E. Rep. 548, and note.

The plaintiff owns two mining claims in Amador county, one situated in a ravine known as "Hunt's Gulch," and the other in a ravine known as "Murphy's Gulch." Between these two claims is a high ridge of land, which is also a mining claim, and is owned by defendant. On its claim in Hunt's gulch plaintiff has a quartz-mill, and in its claim in Murphy's gulch is a large amount of valuable gold-bearing ore. There is a tunnel, constructed by plaintiff and defendant, which extends from a point near plaintiff's quartz-mill, through and under defendant's claim to Murphy's gulch. Plaintiff is working its mine in Murphy's gulch, and is transporting the ore taken therefrom through the tunnel to its mill, and without a right of way through the tunnel for the purpose of so transporting the ore, it cannot continue to work or develop its said mine. The defendant, in May, 1882, obtained a patent from the United States for his mining claim, which contained, among other things, the following condition of sale: "That in the absence of necessary legislation by congress, the legislature of California may provide rules for working the mining claim or premises hereby granted, involving easements, drainage, and other necessary means to its complete development." This condition of sale was inserted in the patent in pursuance of the provisions of section 2338, Rev. St. U. S., which reads as follows: "As a condition of sale, in the absence of necessary legislation by congress, the local legislature of any state or territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and these conditions shall be fully expressed in the patent."

The prayer is that "the damages which defendant will sustain by reason of a right of way granted to plaintiff through said tunnel, for the purpose of working plaintiff's said mine in Murphy's gulch, be assessed, and that on the payment of the damages so assessed by this honorable court to the defendant. a right of way for working and developing plaintiff's said mine in Murphy's gulch, through said tunnel, may be condemned by this honorable court," etc. The defendant filed a general demurrer to the complaint, which was sustained, and thereupon, the plaintiff declining to amend, judgment was entered in favor of defendant.

It is admitted that there was and is no legislation by congress providing rules for working mines, and none by the state except section 1238, Code Civil Proc. That section, in subdivision 5, authorizes the condemnation of "roads, tunnels, ditches, flumes, pipes, and dumping places for working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse-matter from mines."

It is contended, on behalf of appellant, that, under the above quoted section of the Revised Statutes, a right of way through the defendant's mine was reserved by the United States, and that this right of way may be taken and used by any other miner, whenever it becomes necessary to use it in working his mine, upon such terms and conditions as the state legislature may have prescribed. It is further contended that the provisions of section 1238, Code Civil Proc., constitute sufficient legislation by the state to meet the requirements of the case, and to justify the plaintiff in demanding the relief asked for. But was there any such reservation? We are unable to see how the language used can be construed to have such a meaning, and evidently the department of the interior did not so understand it when it issued the patent to the defendant. However this may be, we are satisfied that, under the provisions of the Code of Civil Procedure referred to, the plaintiff cannot have a right of way through defendant's mine condemned for its use in working its own mine. The mine of defendant is his private property, and it is clear that the plaintiff asks for the condemnation in order that it may appropriate a way through that property for its private use. This cannot be done. It was held in Channel Co. v. Railroad Co., 51 Cal. 269, that mining, like the plaintiff's, is a private industry, and that private property cannot be condemned for such

a use.

We think that case decisive of this, and the judgment should therefore be affirmed.

BY THE COURT. For the reasons given in the foregoing opinion the judgment is affirmed.

(73 Cal. 438)

Ex parte YOUNG AH Gow, on Habeas Corpus. (No. 20,296.)

(Supreme Court of California. September 26, 1887.)

LARCENY SECOND OFFENSE-COURT MAY IMPOSE PUNISHMENT FOR, UPON VERDICT OF "GUILTY OF PETIT LARCENY." Under Pen. Code Cal. ? 667, providing a more severe punishment on conviction for a second offense of petit larceny, the court may, on a verdict of "guilty of petit larceny," impose a sentence for petit larceny, second offense; the previous convic tion being charged in the information, and confessed by the defendant. MCKIN STRY, J., dissenting.

In bank. Petition for a writ of habeas corpus to superior court, San Francisco: T. K. WILSON, Judge.

E. B. Stonehill, Dist. Atty., (D. W. Knox, of counsel,) for the People. Henry I. Kowalsky and Lyman I. Mowry, for petitioner.

THORNTON, J. The return shows that the petitioner for the writ was imprisoned on a commitment issued out of the superior court of the city and county of San Francisco, of which the following is a copy:

"COMMITMENT.

"In the Superior Court, City and County of San Francisco, State of California, Department Five.

"TUESDAY, March 29, 1887 Present: Hon. JOHN HUNT, Judge. "The People of the State of California vs. Young Ah Gow.

"Convicted of Petit Larceny-Second Offense.

"The district attorney, with the defendant and his counsel, Mr. L. J. Mowry, came into court. The defendant was duly informed by the court of the information duly presented and filed on the seventeenth day of February, 1887, by the district attorney of the city and county of San Francisco, charging said defendant with the crime of petit larceny, second offense; of his arraignment and plea of not guilty, as charged in said information;' of his trial and the verdict of the jury, on the sixteenth day of March, 1887, Guilty as charged.' And defendant's motion for a new trial herein having been denied by the court, defendant by his counsel excepting thereto, the defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him, to which defendant replied he had none. And no sufficient cause being shown or appearing to the court, thereupon the court renders its judgment: That whereas, the said Young Ah Gow having been duly convicted in this court of the crime of petit larceny, second offense, it is therefore ordered, adjudged, and decreed that the said Young Ah Gow be punished by imprisonment in the state prison of the state of California, at San Quentin, for the term of five (5) years. The defendant was then remanded to the custody of the sheriff of the said city and county, to be, by him delivered into the custody of the proper officers of said state prison at San Quentin.

"OFFICE OF THE COUNTY CLERK OF THE CITY AND COUNTY OF SAN FRANCISCO.

"I, William J. Ruddick, county clerk of the city and county of San Francisco, and ex officio clerk of said superior court thereof, do hereby certify

Cal.]

EX PARTE YOUNG AH GOW.

the foregoing to be a true and correct copy of the judgment entered on the minutes of said court in and for the city and county of San Francisco, state of California, in the above-entitled cause, as appears of record in my office. "Attest my hand and the seal of the said superior court this twenty-ninth day of March, A. D. 1887.

[Seal.]

"WM. J. RUDDICK, Clerk.

"By BEVL. MCNULTY, Deputy-Clerk."

From the record in the cause of People v. Young Ah Gow (the petitioner) it appears that the defendant was charged by information with the crime of petty larceny, and previous convictions for crimes committed before the petty larceny charged in the information, as follows: Five several convictions of petty larceny, one of burglary, and another of burglary in the second degree. On his arraignment the information was read to him, and he pleaded not guilty of the offense charged in the information, and voluntarily confessed every prior conviction set forth therein.

The plea exhibits a rare aggregation of crime, and a clear confession. We subjoin it: "I am not guilty of the offense charged in the information; and I confess and admit that I was, before the alleged commission of said offense, convicted of the crime of petit larceny in the police judge's court of the city and county of San Francisco, state of California, on or about the fifth day of October, 1880, as set forth in the information. I confess that I was, before the alleged commission of said offense, convicted of the crime of burglary in the municipal criminal court of the city and county of San Francisco, state of California, on or about the thirtieth day of December, 1873, as set forth in the information. I confess and admit that I was, before the alleged commission of said offense, convicted of the crime of petit larceny in the police judge's court of the city and county of San Francisco, state of California, on or about the sixth day of August, 1877, as set forth in the information. I confess and admit that I was, before the alleged commission of said offense, convicted of petit larceny in the police judge's court of the city and county of San Francisco, state of California, on or about the third day of January, 1879, as set forth in the information. I confess and admit that I was, before the alleged commission of said offense, convicted of the crime of petit larceny in the police judge's court of the city and county of San Francisco, state of California, on or about the fifth day of October, 1880, as set forth in the information. I confess and admit that I was, before the alleged commission of said offense, convicted of the crime of petit larceny in the superior court, department No. eleven, of the city and county of San Francisco, state of California, on or about the thirteenth day of November, 1880, as set forth in the information. I confess and admit that I was, before the alleged commission of said offense, convicted of the crime of burglary, second degree, in the superior court of the county of Sacramento, state of California, on or about the twentieth day of November, 1881, as set forth in the information."

The cause was tried before a jury. The defendant introduced no testimony. The plea of not guilty was alone submitted to the jury, who, after hearing the testimony, without leaving their seats, rendered the following verdict: "We, the jury, find the defendant guilty of petit larceny." Thereupon the court proceeded to render its judgment, adjudging the defendant guilty of petit larceny, second offense, and to imprisonment in the state prison for the term of five years. (The return above quoted is a copy of the judgment.)

We are asked on this showing to discharge the petitioner from custody, on the ground of excess of jurisdiction by the court in the sentence pronounced. That the court had jurisdiction of the petit larceny, and of the prior convictions, is not denied. But the point is deliberately made here that the conviction was only for petty larceny, and that the court had no authority to sen