This was an action to recover the possession of certain mining-claims. The plaintiff's compose the Star Point Company and the defendants the Michigan Company. The Star Point Company consisted originally of four members, who located the claims in 1854—one for each member of the company, and one by right of discovery—making five claims in all, each fronting one hundred feet, and running back four hundred feet. The Michigan Company located their claims with and adjoining those of plaintiffs, on the next day. For some time after the locations, the miners of that locality considered the front ground only as containing gold; but, subsequently, they became convinced that the heavier deposits would be found under the hill lying back of the first locations. A meeting of the miners of that vicinity was held in August, 1855, at which it was agreed that claims should be extended back to the summit of the hill, in the rear. The controversy in this case regards the line between those two companies. The plaintiffs insist that the line was agreed upon by mutual consent, in 1855; while the defendants insist that such agreement did not bind the Michigan Company, as it was not agreed to by all the members, and that the agreement was founded upon a mistake of facts. In the Court below, the defendants had judgment, and the plaintiffs appealed. The errors assigned go to the giving of a certain instruction, at the request of the defendants, and in refusing the plaintiffs a new trial.

The fourth, sixth, and ninth instructions, embrace substantially the same principle. The ninth is in these words:

There was some apparent, though very little of any real contradiction, in the testimony as to the leading facts of the case.

*606 It appears that, at the meeting of the miners of that locality, in August, 1855, it was agreed that the Star Point Company, being the original locators, should first designate their lines, extending their original claims back to the summit of the hill; and that the adjoining companies should afterwards designate their lines. One or more members of other companies went upon the ground, and, by mutual consent, marked a tree, as designating the southern extension line of the Star Point Company. From this point they went north to a point near a large rock, to designate the line between these two companies. The point first selected was not satisfactory to the Michigan Company; but, finally, a stake was set, by mutual consent, at the point marked “B.” It seems very clear, from the testimony, that it was supposed by all parties that this stake was in range with the northern line of the Star Point Company’s original claims. But in this they were mistaken, as it turned out, upon actual survey, to have been too far north. This line was acquiesced in by both companies, for about two years, and was never disputed by the Michigan Company, until they found, from actual survey, that they had by mistake crossed this dividing line with their tunnel. In the mean time, the present members of the Star Company had, bona fide, purchased the shares of the former owners.

It is not necessary to determine whether this mistake, in designating the dividing line, could be corrected as between those who wore members of the two companies at the time it was made. The question now arises between subsequent purchasers.

The learned counsel for the plaintiffs insist that, conceding the members of both companies, at the time, were mutually mistaken as to the true course of the line between the two companies, the Michigan Company is estopped from disputing that compromise line as against the plaintiffs. If this position of the counsel be correct, the instructions of the Court below were erroneous.

In the late case of Mitchell v. Reid we had occasion to examine the doctrine of estoppel. In that case wo held that “the particular intention with which the declaration was made, is not material, except, perhaps, where the communication is confidential. It is the fact that the declaration has been acted upon by others that constitutes the liability to them.”

There was no pretence of fraud on either side, in adjusting the line between the two companies. The intentions of both parties were innocent, and both were mistaken. Since that time other innocent parties have purchased, with a view to this compromise line. It seems that all the three members of the Star Point Company have since sold their shares to the present plaintiffs, and that similar transfers have been made by most of the three members of the Michigan Company; so that the contro *607 versy, on both sides, is substantially between subsequent purchasers, who have all purchased with a view to this line.

Under the circumstances of this case we can not see how the instructions of the Court could be sustained. Where one of two innocent parties must suffer, he' who committed tlio mistake must bear the loss. It is but just to say that the learned Judge of the District Court expressed great doubts as to the correctness of some of the instructions given at the request of the defendants, and overruled the motion for a new trial, with the view of having the question decided by this Court.

The twelfth instruction given at the request of defendants seems to have been erroneous, The question was one simply between these two companies, and the compromise line would bind them whether the claims of the plaintiffs would be good or not, as between them and third persons, who wore not parties to this suit, and under whom neither the plaintiffs nor defendants claim.

It is unnecessary, and would not be proper for us to decide whether the Court properly refused the application for a new trial upon the ground that the verdict was contrary to the testimony. Under the instructions of the Court, the jury could not well have found otherwise.

Judgment reversed, and cause remanded for further proceedings.