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 can not 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 port on 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 future time one locator may trace out another. These are questions concerning which the 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 difference 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 effect 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 C. L., § 1481. But as the respondents proved the date of location, conveyance of the possessory title down to them, the date of entry, and that the patent was foun led 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 t› the possession of mineral land except as the possessor of a vein in it, that the appellant had no title or right of po session 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, 1876. The two co-owners then sold out to Morris, and he to Wadsworth, Myers and others, who went into possession and worked the mine, but never accounted to the appel lant, and he adds, "after Berassa and Duronzo sold out I was not in the actual possession of it; I was out when they (Wadsworth and others) took possession of it, and never been in pos session since; that was in February, 1876."

The testimony of John W. Kerr, one of the purchasers of th 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 pos

session 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 e11cr, at least as against the appellant, in submitting to the jury the question of the possession of the app ellant at the time the respondents entered. Assuming the contingencies submitted, that the appellant was without right, it does not seem he had such a jossession 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 respondents 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 twothirds interest something, pending litigation, to get out of the way and yield the possession, can not 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 cu'd 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 of his possession to maintain the 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 judg ment should be affirmed with costs.

SCHAEFFER, C. J., concurred; BOREMAN, J., dissented.

'MCGARRAHAN V. NEW IDRIA MINING CO.

(96 United States, 316. Supreme Court, 1877.)

Public records as evidence. The record in the general land office of a patent from the United States is evidence of a grant, but is not the grant itself. If the instrument as recorded is sufficient on its face to pass the title, it is to be presumed that the grant has actually been made; but if it is not sufficient, no such presumption arises. The public records of the executive departments of the government are not, like those kept pursuant to ordinary registration laws, intended for notice, but for preservation of the evidence of the transactions of the department.

Record of patent not countersigned not evidence. A patent from the United States for lands must be signed in the name of the president, either 'S. C. below, 11 M. R. 641.