train crew furnishes an illustration. They reach nearness in point of place when they shove the loaded car onto the spur track, and may do so in point of time when the crew to unload the car take it and commence their work. Certainly these two crews would not be fellow-servants. There is a distinct line drawn between the time of the work of the crew on the spur track and the dinkey crew and one almost as distinct as to place. The intent of the law is to relieve the master from liability only when the servants are brought into such contact with each other that they might see the danger and presently prevent it. They are thus made careful for each other only to the extent of acts presently done, and not those done by servants distant in point of time or place, of which they have had no opportunity to know."

In the case of Gulf, C. & S. F. Ry. Co. v. Warner, supra, the Texas court also said:

"The distinctive characteristics prescribed by the statute as essential to be found concurring and common to two or more employees in order to constitute them fellow-servants are: First. They must be 'engaged in the common service.' As here used, 'service' means the thing or work being performed for the employer at the time of the accident, and out of which it grew, and 'common' means that which pertains equally to the employees sought to be held fellow-servants, and therefore 'common service' means the particular thing or work being performed for the employer at the time of the accident, and out of which it grew, jointly, by the employees sought to be held fellow-servants. The members of a crew running a train, though each be in the performance of different acts in reference thereto, are all 'engaged in the common service,' for they are jointly performing the thing or work of managing the train for the employer; but they would not be 'engaged in the common service' with the members of a crew running another train for the employer over the same road for one crew would be jointly performing the thing or work of managing one train, while the other would be jointly performing the thing or work of managing the other train."

We think the construction placed upon the statute by the Texas court better reflects the legislative intent and the purpose sought to be accomplished by the statute than that which was placed upon a similar statute by the Missouri court in the case of Strottman v. St. Louis, I. M. & S. Ry. Co., 211 Mo. 227, 109 S. W. 769, where it was held that an engineer operating a train was a fellow-servant with a telegraph

operator and station agent upon the theory that they were in the same grade of service and were working together at the same time and place and to a common purpose. We also think that the case of Dryburg v. Min. Co., 18 Utah 410, 55 Pac. 367, is an authority to the effect that the servants of the two crews were here not fellow-servants. In that case the plaintiff, a laborer, was at work on a level of a mine about forty feet above a lower level where the offending servant was at work. Through the negligence of the servants on the lower level the support of one side of a ladder which was used in going from one level to another was removed. The plaintiff was injured in his attempt to descend the ladder. The trial court granted a nonsuit on the grounds that the plaintiff was guilty of contributory negligence, and that he and the servant whose negligence caused the ladder to be made insecure were fellow-servants. On appeal Chief Justice Zane, in delivering the opinion of the court, held that the question of plaintiff's negligence ought to have been submitted to the jury, and, after defining and construing various parts of the fellow-servant statute, also held that "whether the plaintiff and Saunders (the of fending servant) were 'fellow-servants,' as that term should have been defined by the court in his charge, would have been a question of fact to be found by the jury from the evidence." He therefore held the ruling of the court granting a nonsuit erroneous, reversed the judgment, and remanded the case for a new trial. Mr. Justice Bartch dissented. Mr. Justice Miner in concurring said: "I concur with the Chief Justice in that part of the opinion holding that the question of contributory negligence of the plaintiff, under the testimony, should have been submitted to the jury, and that the order granting a nonsuit was erroneous. I do not

concur in the rule as to the construction of the statute with reference to fellow-servants as presented in the opinion. I am of the opinion that the judgment should be reversed for the reason given, and a new trial granted."

It is said that, while it may be difficult to ascertain the point on which Chief Justice Zane and Mr. Justice Miner

agreed to reverse the judgment and remand the case, yet it is clear that they did not agree on the construction placed upon the statute by the Chief Justice. (Lukic v. So. Pac. Co., 160 Fed. 135.) It is manifest that they agreed in the holding that the question of plaintiff's negligence was one of fact. It is also clear that Mr. Justice Miner did not agree with what was said by the Chief Justice in defining and construing the statute. But it is just as evident that he did agree with him on the conclusion reached, that, under the statute, and upon the facts appearing in evidence, the plaintiff and the offending servant were not fellow-servants, or, at least, that the question was one of fact for the jury. Such a holding and conclusion were necessarily inherent in his concurrence in the judgment of reversal. While they did not agree upon the meaning to be given the provisions of the statute drawn in question, and the construction to be placed upon them, yet, by the reversal of the judgment of the court below, concurred in by both of them, they necessarily agreed that, in the light of the statute, and upon the facts made to appear, the two servants were not fellowservants as matter of law. To that extent the case is an authority on the question here involved. So is the case of Jenkins v. Mining Co., 24 Utah, 513, 68 Pac. 845, where it was held by a unanimous court that a servant whose duty it was to manage and operate a cage by which miners were conveyed in and out of the mine was not, under the statute, a fellow-servant with a miner, nor was a miner a fellow-servant with a tool carrier whose duty it was to take sharpened tools into the mine and throw them off at various levels and bring up the dull ones. It was there held that the miner and the cage manager and the miner and the tool carrier were not working together at the same time and place and to a common purpose within the meaning of the statute. Whatever difficulty there may be in ascertaining what was decided in the Dryburg Case, there ought not to be any difficulty in ascertaining what was decided in the Jenkins Case. In Neesley v. So. Pac., 35 Utah 259, 99 Pac. 1067, it was recently held by us that a railroad engineer operating a train

was not a fellow-servant with a telegraph operator nor with a section foreman nor with section men. While it was there held that these servants were not in the same grade of service, yet it was also held, in effect, that they were not working together at the same time and place and to a common purpose.

We think no error was committed in the charge complained of, nor in other rulings involving the question of fellow service.

For the reasons heretofore given, the judgment of the court below is reversed, and the case remanded for a new trial. Costs to appellant.

FRICK and MCCARTY, JJ., concur.

BULLION BECK & CHAMPION MINING COMPANY

v. EUREKA HILL MINING COMPANY.

No. 1993. Decided August 25, 1909 (103 Pac. 881).

1. BOUNDARIES

AGREEMENTS-CONSTRUCTION-"ABOUT." The word "about," in an agreement fixing the boundary between adjoining mining claims, which stipulated that the boundary should be a vertical plane downward on a line commencing at the southeast corner of the surface ground of one of the claims, then running northerly along the easterly side line of the adjoining claim to the intersection with the westerly side line of the adjoining claim which was at a point south 19° 47' east and about 727.3 feet distant from the northeasterly corner stake of the adjoining claim, etc., entered into, with knowledge of the location of the corners marking the boundaries of the claims, and with knowledge that a monument had been estabIlished at the point of intersection, meant that the distance from the northwest corner stake of the adjoining claim to the point of intersection was not intended to be stated with exact precision, but the established corners and monument control. (Page 336.)

2. BOUNDARIES-MONUMENTS-COURSES AND DISTANCES. In case of doubt as to boundary lines, monuments and lines actually marked and capable of identification control courses and distances. (Page 337.)

3. BOUNDARIES - AGREEMENTS - CONSTRUCTION. Corporations owning adjoining mining claims E. and B. adopted resolutions fixing the boundary, stipulating that the boundary of the lodes in E. claim and B. claim for the length of B. claim should be a vertical plane downward commencing at the southeast corner surface of B. claim, thence along the easterly side of B. claim to the intersection with the westerly side of E. claim, etc. The agreement fixing the boundary provided that it should be a vertical plane downward on a line commencing at the southeast corner of the surface ground of B. claim, thence running northerly along the easterly side line thereof to the intersection with the westerly side line of E. claim, which was at a point 19° 47' east and 727.3 feet distant from the northwesterly corner stake of E. claim, etc. Held, that the parties intended to and did fix the point of intersection of the westerly side line of E. claim with the east line of B. claim as the end of the first and the beginning of the second call in the survey of the boundary. (Page 337.)

4. MINES AND MINERALS-TRESPASS-LIMITATIONS

EVIDENCE. Evi

dence, in an action for trespass for removing ore from plaintiff's ground brought more than eight years after the trespass, when considered in connection with defendant's answer, held to support a finding that plaintiff did not have actual knowledge of the trespass prior to six months of the bringing of the action, so that the action was not barred under Comp. Laws 1907, section 2877, limiting an action for trespass to three years, and providing that when trespass is committed by underground workings on any mining claim the cause of action shall not accrue until the discovery of the trespass. (Page 337.)

APPEAL from District Court, Fifth District; Hon. Joshua Greenwood, Judge.

Action by the Bullion Beck & Champion Mining Company against the Eureka Hill Mining Company.

Judgment for plaintiff. Defendant appealed.

AFFIRMED.

Van Cott, Allison & Riter for appellant.

Dickson, Ellis, Ellis & Schulder and P. T. Farnsworth, Jr., for respondent.