Appeal from the Fourteenth District.

Suit for damages for entering upon and working certain quartz mining claims, and for injunction restraining, etc.

In 1850 and 1851, Stevenson, Whitcomb, Peake, and others located a number of quartz claims on Massachusetts and New York Hills, near Grass Valley, Nevada county, and in accordance with the customs and regulations of miners in that locality, held and worked the same as a corporation, under the name of the Nevada County Gold Mining Company, until March 11th, 1853. On that day the company leased the claims to Hepburn & Attwood for ten years, and they took possession, held, and worked the same until December, 1858, when Hepburn transferred his leasehold estate to his co-lessee and one Walsh, who are plaintiffs here.

Sometime prior to the commencement of this suit, defendants entered upon the claim situated on New York Hill, and included in those leased—sunk shafts, run tunnels and drifts, and removed quartz rock, etc. Plaintiffs sue, claiming to be owners and posses-

sors. Defendants answer, denying such ownership and possession, and averring title in themselves.

Upon the trial, plaintiffs offered in evidence the lease to them from the Nevada Gold Mining Company, a book purporting to be a book of record of mining claims, containing the record of the locacation of claims on New York Hill, numbered from one hundred and forty-four to one hundred and seventy-two, inclusive; and also the entry in said book of the transfer of the claims from the original locators to the Nevada Gold Mining Company. Defendants objected to the introduction of so much of the record as referred to this transfer. Plaintiffs insisted that the record of transfer was evidence that such transfer had been made. The Court excluded the entry of transfer until plaintiffs should prove by testimony aliunde that the transfer was in fact made by the parties in whose names the claims were recorded; stating that on such proof being introduced plaintiffs would then be permitted to offer the record of transfer, to show a compliance with the mining rules. Plaintiffs objected.

Plaintiffs also introduced proof of the usual mining customs and regulations as to taking up claims and recording the original location, and any transfers of the same.

Defendants offered in evidence the depositions of Hawes and others, taken March 12th, 1859, to which plaintiffs objected, because—1st, The copy of the order of the Judge, fixing the time for taking such depositions, did not mention the notice to be given. 2d, Because no correct copy of said order was served on plaintiffs or their attorney. 3d, Because no sufficient notice of the taking of such depositions was ever given to plaintiffs or their attorneys. The objection was overruled; and the reason assigned by the Court is, “ Because the original order of the Judge, made on affidavit, fixed the time of notice at three days, and because counsel for plaintiffs acknowledged service in writing of a copy thereof on the eighth of March, 1859, more than three days before the taking of said deposition.” Plaintiffs excepted.

The instructions for defendants were :

1st. That to enable the plaintiffs to recover in this action, the jury must find from the evidence that the plaintiffs were in posses-

sion of the mining grounds in dispute at the time of the alleged grievances, and that such possession of plaintiffs was rightful as against defendants.

2d. That to maintain their action the possession of plaintiffs must be actual or constructive.

Actual possession is where a party has the exclusive control and dominion over and occupation of the property at the time of the alleged trespass.

Constructive possession is where the property is not in the actual occupation of any one, but where it rightfully belongs to the owner, and where the owner may take it into his own hands at his pleasure.

3d. That a party relying upon prior possession alone, must show such possession to be actual and exclusive.

4th. If the jury find from the evidence that the plaintiffs had not either the actual or constructive possession of the mining claims in dispute at the time of the alleged trespass, then they will find for defendants.

5th. That if the jury believe from the evidence that the mining claims on New York Hill, here sued for, were located and held by different persons; that the original locators never transferred their claims to the Nevada Gold Mining Company, the lessor of plaintiffs, then that plaintiffs acquired no constructive possession of said mining claims by virtue of the lease from the said mining company.

6. That the plaintiffs obtained no greater right or title to the claims mentioned in the lease than that which the lessor thereof had at the time when the same was made; and that if the lessor thereof had no right or title in the ground in dispute at that time, the said plaintiffs, the lessees, acquired none.

7th. That if the jury believe from the evidence that no injury or damage was committed or done by plaintiffs to defendants, then they will find for defendants.

To which instructions plaintiffs excepted generally. The jury found for defendants; judgment accordingly. Plaintiffs appeal.