Hendrichs

(after stating the facts as above).

The appellant contends that the oral agreement alleged in the bill is not proven by such clear and satisfactory evidence as to justify the court in decreeing a specific performance thereof. As to some of the material questions involved, the testimony of the two parties to the suit was directly contradictory. But the following is not disputed: Prior to the location of the claim they had been jointly interested in other mining property, and on the morning of June 12th, they were living together in a cabin on the *246 Alma Bench claim, in which they were partners. On that morning they went out in different directions to look for water for their ditch. When they met at noon, the appellant reported that he had found some ground which he was going to stake. In the afternoon he and the appellee prepared stakes, went to the ground so discovered by the appellant, and, working together, staked the Byrnes Bench, the claim in controversy; the appellee writing the notices thereof. Upon completing that location, which was located in the name of the appellant, they went together and staked an adjoining claim, which was located as the Florence Bell, in the…