Becker

(after stating the facts as above).

Two errors are assigned with respect to the proceedings in the court below:

First. It is assigned as error that the court refused to give the following instruction, requested by the defendant: “You are instructed that, prior to the time that the plaintiffs in this action made a discovery within the boundaries of said bench claim No. 6, their possession only extended lo that portion of the tract of which the plaintiffs were in the actual possession; that is, the place where they were sinking their said shaft and a -reasonable space around the same in order to enable them to perform their said work.”

Second. It is assigned as error that the court gave the following instruction, to which the defendant excepted: “But you are instructed that if the defendant did not include the disputed strip in his original location, but thereafter, and subsequent to the date that plaintiffs marked the boundaries of their said No. 6 bench claim, and while plaintiffs were in the actual possession of said No. 6 bench claim, extended his boundaries so as to include said disputed strip, then before you can find for the defendant you must find that the defendant made…