Oliver

This is an action to set aside a certain deed made by J. K. Oliver, plaintiff’s intestate, to defendant, to the surface of the Table Mountain Alpha Gravel Placer Mining Claim, designated for convenience, the Alpha Mine, and for a reconveyance of the same to plaintiff. Defendant had judgment, from which and from the order denying his motion for a new trial, plaintiff appeals.

On April 9, 1906, plaintiff’s said intestate was the owner of the placer mining ground described in the complaint, and on that day executed and delivered to defendant a deed conveying to her “the surface of that certain placer mining claim [describing it] for and in consideration of the sum of $389.35 . . . and other valuable considerations. ” The grantor granted to the grantee “the use of the water from the tunnel upon said premises,” not, however, to interfere with mining the claim, reserving to himself all the minerals in the land and the right to remove the same, with the right of ingress and egress to and from said premises for mining purposes, and also reserving' certain pasturing privileges for his stock. The deed contained the following provision: “In consideration of this conveyance, the party of the…