This is an action for an alleged trespass of defendant upon the mining claim of plaintiff.

The only controverted question of fact, upon the trial, seems to have been whether the locus in quo of the alleged trespass is within the boundaries of plaintiff’s claim.

Upon a careful review of the whole testimony, we have not been able to discern any substantial conflict in the evidence tending to establish the following preliminary facts, upon which this ultimate fact depends:

There seems to have been no controversy at the trial as to the true southwest corner of defendant’s and northwest corner of plaintiff’s claims; this corner is admitted to be a white oak stump, which stump is the southwest corner of defendant’s and northwest corner of plaintiff’s claim.

About the 1st of January, 1855, defendant’s grantors marked out the western line of their claim, and established and marked their northwest and southwest corners, the northwest corner being a large pine tree, and the southwest corner being a large white oak tree, (now a stump.) On the following day, or a few days thereafter, they marked out their south, east, and north lines, and established their southeast and northeast corners, their northeast corner being a small pine tree, and their southeast corner being a mound of stones; the distance between defendant’s northwest' and southwest corners and between their northeast and southeast corners, as measured at the time, and as by them recorded on the 29th January, 1855, being three thousand feet.

The plaintiff’s claim, subsequently located about the 15th January, 1855, was located between the defendant's claim on the north and the Scraperville or Welsh Boys’ claim on the south; and was marked out by marking the northwest established corner of the Scraperville claim as their southwest corner, and the northeast corner of the Scraperville claim as their southeast corner, and marking the established southwest corner of defendant’s claim as their northwest corner; and their northeast corner was intended to be made identical -with the established southeast corner of defendant’s claim; but not being able at the time to discover defendant’s southeast corner, a notice was posted on a nut pine tree as plaintiff’s northeast corner, stating that “that ivas the Maine *45 Boys’ claim, bounded on the south by the Scraperville and on the north by the Boston claim.”

No other or different location of plaintiff’s claim was ever made or attempted, except that a month or two after this first location the party ivho made the same was shown the southeast corner of defendant’s claim by defendant’s company, the same being a pile of stones. He then made the same pile of stones plaintiff’s northeast corner. But subsequently, in November, 1855, on making a record of its claim, plaintiff described its location by metes and bounds, without reference to any other claim, except the Welsh Boys’ claim, and gave the distance from its southeast to its northeast corners, and from its northwest to its southwest corners, as one thousand seven hundred feet. The measurement of these lines was not made or attempted at the time the ground was located in January, 1855, nor does it appear that any measurement of these lines was made or attempted prior to the making of the record, or at any other time, until a short time before the commencement of this suit, except, in 1856, one Alfred Roberts, a member of plaintiff’s company, measured the west and east lines of its claim, and found the west-line to be from one thousand six hundred to one thousand eight hundred feet in length, and the east line to be five or six hundred feet in length.

The true location of the southeast corner of defendant’s and northeast corner of plaintiff’s claims appears to have been the only material point in controversy on the trial.

Witnesses, who made surveys of the respective claims a short time before the trial, testify to two piles of stones on the eastern brow of Table Mountain—one about six hundred and twenty-five feet north of the other. The plaintiff claims this north pile of stones as defendant’s true southeast corner, and as its own true northeast corner; and defendant claims the south pile of stones as its ,own true southeast corner and plaintiff’s true northeast corner. Starting from the oak stump on the west side of the mountain, which is agreed to be the true southwest corner of defendant’s claim and the *46 northwest corner of plaintiff’s, and running a direct line from thence easterly to the most southerly pile of stones on the east brow of the mountain, claimed by defendant as its true southeast corner, the locus in quo of the alleged trespass is entirely within the limits of the defendant’s claim; and by running a direct line easterly from the same oak stump to the northerly pile of stones on the east brow of the mountain, claimed by plaintiff as its true northeast corner, the defendant has worked south of this line one hundred and seventy-seven feet; and if this be the true dividing line between plaintiff’s and defendant’s claims, defendant has trespassed upon plaintiff’s claim to the extent of running a tunnel one hundred and seventy-seven feet upon and in its ground.

There is no positive evidence as to the precise time when, or by whom, either of the two piles of stones were erected on the east brow of the mountain, and there is no evidence tending to establish that plaintiff, or those under whom it claims, ever erected either of those piles of stones, or ever established any northeast corner of its claim, other than the nut pine hereinbefore stated, and about two months thereafter making the pile of stones, pointed out by the “Boston Boys” as their southeast corner, plaintiff’s northeast corner.

There is no conflict in the evidence tending to establish the fact that the southerly pile of stoucs claimed by defendant as the southeast corner is the identical pile of stones pointed out by the “Boston Boys” to the party locating the “ Maine Boys’ ” claim within two months after the first attempt at location of the same, as hereinbefore stated, and is the identical pile of stones which the same party then made the “Maine Boys’ ” northeast corner.

Witness Atherton, called by defendant, is the only witness who testifies as to the time and manner of locating plaintiff’s claim. He says: “I know plaintiff’s and defendant’s claims. I located plaintiff’s claim about the middle of January, 1855. I found a vacant piece of ground between the Boston and Scraperville, and went to find the southwest corner of Bos *47 ton, and found it on a large white oak tree, spotted and written on it: ‘ Southwest corner of Boston Company.’ I wrote on the same tree, with pencil, ‘Northwest corner of Maine Boys’ claim.’ I then went and found northwest corner of Scraperville, and marked it, ‘ Southwest corner of Maine Boys’ claim.’ I then crossed over on the east side of the mountain, and found the-northeast corner of the Scraper-ville, and marked it with pencil, ‘ Southeast corner of Maine Boys’ claim.’ I then went up to find the southeast corner of Boston Company’s claim; did not find it, but wrote a notice and put it on a pine tree. The notice read, stating that was the Maine Boys’ claim, bounded on the south by the Scraperville, and on the north by the Boston claim; I put it on a nut pine; th.e tree is there yet. I calculated I was near the southeast corner of the Boston claim. I wanted to s:et as near the line as I could; I did not intend to get over the line. * * * The Boston Company had been at work in their claim when I marked the Maine Boys’ claims. I should judge they had been at work a week or so by the looks of the work. It had been located prior to the passage of the laws at Darow’s. The southeast corner of the Boston claim was pointed out to me by the Boston Company a month or two after I took up the Maine Boys’ claim, and I then made it Maine Boys’ northeast corner. I pointed out the same rock pile to Wilson the other day. I became an owner in the Boston Company in December, 1855, and remained a member of the Boston Company seven years. I was a member of the Maine Boys’ Company three or four years. There was nothing done in marking out lines in Maine Boys’ except what I did. While I was a member of the Maine Boys’’ Company the recognized line was as I have stated. The oak tree on which I found the notice was always considered, the dividing line, and the rock pile pointed out to me by the Boston Company as their southeast corner.. There never was any trouble about the claim till Alfred Roberts measured the front, (the Mormon Creek side,) and found we had one thousand six hundred to one thousand eight hundred *48 feet, and he then went over and measured the east side of the claim and found there was but five or six hundred feet. He thought we ought to have more ground; that was the first time there was any dispute about the lines. This was some time in 1856. I bought into the Boston Company before the commencement of the suit with the Twist Ranch Company, December 17th, 1855. At the timo I bought into the Boston Company the entire bounds were pointed out to me by Dr. Sherburne and Bucket, the man I bought out. They pointed out the rock pile I pointed out to Wilson the other day as the southeast corner of the Boston claim, tho white oak tree as the southwest corner, the large yellow pine standing a little below the ditch as the northwest corner, and a small pine standing back of the buildings on the Rosedale Ranch as the northeast corner. There was a notice, made from candle paper, nailed on the northeast corner; the tree is not standing now. I saw the stump recently, and a piece of the trunk is there with the nails in it, and pieces of candle paper under the heads of the"hails. The tree was cut some time ago, and the trunk hung to the stump. I saw it the day of the survey by Cooper, and the day I pointed out the southerly corner to Mr. Wilson. The corners I pointed out to him are the same ones pointed out to me by Sherburne and Bucket, and the same ones I located. * * * * Roberts came in shortly after we took up the claims.”

W. S. Cooper, a witness called by defendant, testified as follows: “I am County Surveyor; I surveyed defendant’s claim July 15th, 1867; began at the northeast corner pointed out by F. B. Doten; it is a pine stump, about a foot in diameter; ran north fifty-three degrees thirty seconds west one thousand two hundred and fifty-seven feet to a large pine stump; thence south seventeen degrees west to a large oak stump two thousand nine hundred and seventy-five feet. * * * The oak stump was pointed out to me as the southwest corner by Mr. Atherton. I then ran south seventy-three degrees east two thousand eight hundred feet to a rock mound, southeast corner. This mound was pointed out to *49 me by Atherton as the southeast corner. I then ran north twelve degrees west three thousand feet to the place of beginning. I had not seen the records testified to by Baron, but had seen a copy. The corners correspond exactly. The distances are not exact, but very near. The easterly line in the record corresponds exactly with my measurement. The westerly line is recorded as three thousand feet; I make it two thousand nine hundred and seventy-five feet. * * * The courses I have given are the magnetic courses. * * * The entire underground works of defendant are within the limits I have described as having surveyed.”

Thomas Morris, a witness called for the defendant, testified as follows: “ I have been an owner in Boston Company seven years this Fall; during all that time have known the southwest, the southeast and northeast corners. I saw them pointed out to Cooper, and pointed them out myself. Atherton showed them' to me. * * * The corners Atherton pointed out to me seven years ago are the same that Cooper surveyed to.”

There is no testimony in the record conflicting with or tending to impeach or rebut the foregoing testimony of Atherton, Cooper, and Morris, but much corroborative thereof, and all tends clearly to establish that the southerly stone pile is the true southeast corner of defendant’s and northeast corner of plaintiff’s claims, and, thus established, the locus in quo of the alleged trespass of defendant is entirely within the legitimate boundaries of its own claim, as originally located, and not on or within the plaintiff’s claim; hence the verdict of the jury, “ establishing the line as claimed by plaintiff,” is not only unsupported by, but manifestly against the evidence, as found in the record. We are at a loss to account for the verdict as rendered upon the evidence, except upon the theory that the jury were controlled in their action, not by the evidence upon the point . as to where the original true southeast corner and southern boundary of the defendant’s claim were, but by an instrue *50 tion given by the Court at the request of plaintiff, and other evidence tending to establish that plaintiff) some time in the year 1856 or ’57, sunk a shaft within the boundaries of defendant’s claim, without objection on the part of defendant, and claimed the disputed ground as within its boundaries. This instruction given by the Court, at request of plaintiff, is as follows: “ If the jury believe, from the evidence, that plaintiff", or those under whom it claims, more than five years prior to the commencement of this suit, in good faith, and under a claim of right, entered into the possession of said disputed ground, and have continued in possession thereof, and have expended labor thereon (with the knowledge of defendant or those under whom it claims, it making no objection thereto) and that the defendant has not forbidden its possession so acquired, then the plaintiff is entitled to a verdict.”

As an abstract proposition this instruction, as given, cannot be sustained. It fails to state the essential elements of an estoppel in pais. (Boggs v. Merced Mining Co., 14 Cal. 367, 368 ; Davis v. Davis, 26 Cal. 39 -42.)

. Again: there was no sufficient evidence in this ease to point such an instruction. The plaintiff claims the ground in controversy by virtue of its prior location and possession. The evidence establishes that the defendant located and had the possession of this ground before plaintiff located its claim adjoining thereto. The evidence further shows, upon the point of actual possessio pedis of the disputed ground, that the defendant was working on or very near, claiming the same as within its boundaries, in 1856 or 1857; that while defendant was so working on or very near this disputed ground, both plaintiff and defendant claimed the same, and plaintiff, while defendant was so working, sunk a shaft on the ground. The sinking of this shaft is the only work ¡ plaintiff is shown ever to have performed upon the disputed ' ground; and while sinking this shaft, plaintiff was informed by defendant that it was working on defendant’s ground. The evidence tends strongly to establish that the boundaiy *51 line between, plaintiff' and defendant has been a question of dispute between the parties since 1856; hence the instruction asked by defendant and refused by the Court was pertinent and proper, after the instruction given at request of plaintiff" and should have been given.

Judgment and order reversed and cause remanded for new trial, and remittitur directed to issue forthwith.