Appeal from the Fourteenth Judicial District.

The Court below, to whom the case was submitted without a jury, found the facts as foEows: “ At the commencement of this action and for several years prior thereto, plaintiff was in possession of a tract of land or ranch on the public domain in Nevada County, containing about one hundred acres, which he used for agricultural purposes and held under the possessory act of this State, having aE the titles thereto that can be acquired by virtue of a compliance with the provisions of said act. He resided on the land with his family, and had erected thereon valuable improvements, consisting of buildings, orchards, vineyards, ornamental trees, etc., at an expense of about $8,000. Nearly one-fourth of the tract was under cultivation, the balance is in a wild state, and a portion is covered with oak and pine trees, enough in all, probably, to make five or six hundred cords of wood. The tract lies on the side of the hill which forms the north bank of Deer Creek— the creek being the southerly line—and a portion of the ground is very steep and rugged. Upon the lands immediately surrounding this tract the timber has nearly all been destroyed. On several parts of the ranch gold has been found and mining has been carried on, but in the particular portions on which the trees were cut by defendants it is not shown that there is or was any minerals. At or near the westerly boundary of this tract the defendants, who are miners, have a set of* quartz claims and a quartz mill, used in extracting the gold from the rock taken from said claims. The ledge upon which the claims are situated runs in the same general direction with the said westerly line of plaintiff’s ranch. For the distance of two hundred feet, or thereabouts, from the creek, the surface or 6 croppings ’ of the ledge is in whole or in part within plaintiff’s land—from thence it is without said line; but the ledge dips or inclines towards and under plaintiff’s land, at an angle of about forty-five degrees, and the point at which defendants are at work underground, by means of tunnels, is beneath a portion of the ranch. The mill of defendants stands very near the westerly line of the ranch, but entirely outside of it. In order to extract the gold from the quartz in a practicable and advantageous manner, it is necessary for defendants to have wood for the purpose of heating water to be used in the amalgamatory process, and for this purpose they cut the trees complained of. They were cut at a point on plaintiff’s ranch about twelve hundred feet from the nearest point of the surface of defendants’ claims. The trees cut were native forest trees, and were taken from that portion of the ranch which had never been in any manner cultivated or improved. Owing to the scarcity of timber in the vicinity, and the steepness and ruggedness of the ground which renders the mill difficult of access, defendants cannot obtain wood from any source in the immedíate neighborhood other than the land of plaintiff. But defendants could obtain wood by purchasing it from parties at some distance— of course at a greater cost. It is necessary for defendants to use about fifty cords of wood per year. I find that defendants cut on plaintiff’s land as aforesaid twenty-eight trees, worth in the aggregate fifty dollars. In the mining district where these claims are, it is the custom with miners to locate quartz claims one hundred feet wide on the surface—fifty feet each way from the center of the ledge—but running with its dips and inclinations. Plaintiff claims that all the wood now on his ranch is not more than sufficient for his fire-wood and domestic purposes, and also that he had recently sold some wood to persons living in the neighborhood.”

Judgment was rendered for defendants, and plaintiff appeals.