when connected with others, to prove the intention to abandon, though the bare lapse of time, short of the Statute of Limitations and unconnected with any other circumstance, would be no evidence of abandonment-though the right might be lost, as before stated. (Ante p. 7.)

The cases upon which counsel rely to sustain the position that mere lapse of time, short of the Statutes of Limitation, will work an abandonment, are cases in equity, where the persons claiming its interposition had no strict legal rights, but relied upon the equity of their cause.

In such cases, upon a cardinal principle of equity jurisprudence, no relief will be granted if there has been an unreasonable delay in asserting the right or claiming the interposition of equity. This seems to have been the only point decided in the case of Prendergast v. Turton, 20 Eng. Ch. 97. There the directors of the United Mills Mill Company seem to have had the power to declare the shares of any of the members of the company forfeited if the installments on such shares were not paid within fourteen days after the day fixed for the payment thereof. Prendergast's shares were so forfeited, and his only remedy was in equity to set aside the proceedings of the directors, and the court held that his delay in asserting or claiming his rights had been unreasonable, and denied the prayer of his bill. But had Prendergast a right which he could have claimed in a court of law, no time short of the Statute of Limitations would have deprived him of it. By the application of these general views to the facts in this case, it is evident that there could have been no forfeiture or loss of right on the part of Phillippi, if his co-tenants or partners remained in possession and held the ground as required by the mining laws, for the rule that the possession of one tenant in common or partner is the possession of all, is too well estab lished to be ignored at this time. But it is claimed that Phillippi abandoned his interest in the Uncle Sam Company before his conveyance to Small. That he could abandon, and that his co-tenants or partners could have taken his interest when so abandoned, there is no doubt. But some circumstances beyond the mere lapse of time would be necessary to establish that fact. The case of Waring v. Crow, 11 Cal. 366, is directly in point here; and however much its authority may

be weakened by the subsequent doubts of the learned judge who delivered the opinion of the court as to its accuracy, the decision is certainly based upon reason and the sounder principles of law. And though it is urged here with great earnestness that persons owning and associated together in working a mine are not tenants in common, but mining partners, the result in this case would seem to be the same in whichever character they may be clothed. The authorities generally seem to clothe such persons with the double character of mining partners and tenants in common. As to liabilities properly incurred in the development of a claim, they have been held to be answerable as partners; but with relation to the claim itself, they seem to be generally recognized as tenants in common, and there seems to be no sufficient reason for departing from those authorities in this case. We conclude that the

possession of one partner or tenant in common inures to the benefit of all until such possession becomes adverse, and that the absence of Phillippi, and refusal to pay assessments for a period short of the Statutes of Limitation, would give his partners or tenants in common no right or title adverse to him in his interest in the Uncle Sam claim; but such lapse of time, with other circumstances tending to show abandonment, might go to the jury to establish it. There seems to be no urgent necessity for adopting a new rule at this late day, as there seems to be no obstacle in the rule itself to complete justice in any case. If one partner or tenant in common, after having become associated with his co-tenants in the development of the claim, voluntarily leaves it in the possession of his companions, and refuses to bear his proportion of the expenses incurred by them in development of the same, and should afterward bring his action to recover his interest, undoubtedly, upon a proper application, the equity side of the court would defer his recovery until he had paid his full proportion of the expense incurred in the development and improvement of the claim; and on the other hand, if he had been wrongfully onsted from his possession or rights, the persons so ousting him, or those claiming under them, can acquire no title in the claim adverse to him short of the Statute of Limitations, and of course could not ask the interposition of equity.

In this view of the case, the court below properly gave in

structions two, five, six and nine, asked by plaintiff, and erred in refusing to give instructions one, two and three, asked by defendants.

The judgment below must be reversed, and a new trial ordered.

BEATTY, J., having been counsel in a similar case against the Uncle Sam Company, did not participate in the hearing of this cause.

Judgment reversed.

OREAMUNO V. THE UNCLE SAM GOLD AND SILVER MINING COMPANY.

(1 Nev., 215. Supreme Court, 1865.)

District rules-Continued observance. To enable a party to maintain a right to a mining claim after the right is acquired, it is necessary that the party con inue substantially to comply with the mining rules and customs established and in force in the district where the claim is situated.

Intention-Law and fact. Abandonment is a mixed question of law and fact. If, in fact, a person intend to give up his claim and quit paying assessments in pursuance of that intention, it is an abandonment in fact. Forfeiture-Burden of proof. A party who insists upon forfeiture or aban

donment, and relies thereon to build up a right in himself to the thing, franchise or easement forfeited or abandoned, is upon first principles bound to establish the fact or facts upon which his asserted claim or right depends.

Appeal from the District Court of Storey County, First Judicial District.

The facts in this case are substantially the same as those in the case of Mallett v. The Uncle Sam Company, 1 Nev. 188 (Ante p.17), with the exception that the record of judgment by the justice of the peace was not introduced in this case.

CRITTENDEN & SUNDERLAND, J. B. HARMON, and QUINT & HARDY, for appellants.

BALDWIN & HILLYER, for respondent.

BROSNAN, J.

This is an action brought to recover twenty-five feet of mining ground, now held by the defendant. The plaintiff alleges that in May, A. D. 1860, he was the owner, and in the possession, of the ground in controversy. He also avers an ouster, and an unlawful holding by the defendant, in the usual and ordinary form.

The answer admits the ownership and possession of the plaintiff, as by him alleged, and sets up affirmatively in defense of the action:

First. That the plaintiff abandoned all his right in and to the ground before the commencement of this suit; and

Second. That the defendant became owner of the ground claimed in March, 1861, and is still the owner and in posses. sion thereof.

From the statement on file, it appears that all the testimony taken on the trial is contained in the statement. After a careful examination of this evidence, we fail to discover wherein it is competent to establish either proposition of the defense

Looking to the testimony in its pertinence and relation to the pleadings, and the verdict based thereon, the case is quite simple and of easy solution. However, a long series of instructions to the jury have been requested by the counsel of both parties, many of which seem to have little relevancy to the facts disclosed by the evidence, but which are calculated rather to mystify than clear up the real questions involved. These instructions demand a brief consideration from the. court.

The defendant's counsel takes exception to certain enumerated instructions, given at the request of plaintiff. Of these instructions the fifth, sixth and seventh relate to the force and effect of some judgment, execution and proceedings had under them, which judgment and proceedings were incidentally mentioned on the trial, but nowhere legally proved to exist, or to have taken place. Whilst it may be said of these particnlar instructions that they were, in our opinion, irrelevant, still we can not see that they have in the least degree prejudiced the case of the defendant.

As abstract propositions of law, they seem to be correct, and

could not, in any manner that we can discover, mislead the jury.

The eighth, eleventh and thirteenth instructions on the part of the plaintiff, with which also the defendant finds fault, have been properly given. They relate to the question of an abandonment at common law, and are a fair exposition of the law on that subject.

We see no error, therefore, in giving the instructions set forth in behalf of the plaintiff, that would justify us in sending the case back for a new trial.

This brings us to an examination of the questions arising upon the refusal of the court to give certain instructions prayed for by the counsel of the defendant, and the modifications of others by the court.

It will be observed, judging from the instructions asked to be given on the part of the defendant, that the learned counsel mainly relied upon the fact of the abandonment, for nearly all the instructions proposed by him, are directed to that question. They vary in form, but are substantially burdened throughout with the same idea—an abandonment; if not in the common law acceptation of the term, then such abandonment or loss, or relinquishment of right as results from neglect to comply with the mining rules and customs of the district.

We think the question, in both respects, was presented fairly to the jury, and that the rulings of the court below on this point, were as favorable to the defendant as counsel could reasonably expect.

The third instruction, given at defendant's request, is in the words following:

"To enable a party to maintain a right to a mining claim, after the right is acquired, it is necessary that the party continue substantially to comply with the mining rules and customs established and in force in the district where the claim is situated, upon which such right is made to depend.”

In the fourth instruction, the court, at the request of defendant's counsel, advised the jury as follows:

"An abandonment is a mixed question of law and fact. If in fact the plaintiff intended to give up his claim and quit paying assessments, in pursuance of that intention, it was an abandonment in fact."