Sharktown and Scratchowl claims were not in question. There was no controversy concerning them, and could have been none. Their location was admitted in the pleadings, and any testimony concerning such location was properly excluded from the evidence.

This seems to be the state of facts in the case: The defendants entered upon their own ground, and outside the surface boundaries of the plaintiff's claim, and sunk a perpendicular shaft, and struck a vein of quartz beneath the surface, and the question at issue was whether this vein belonged to and formed a part of the Salmon and Cliff extension lode, and upon this issue the jury found for the plaintiff, and that it did. Upon this issue, testimony as to when defendants commenced work upon their claims, or under what claim of title, or how much money they had expended thereon, or when they first commenced work, was wholly immaterial, after the admission in the pleadings of the location of their claims. Nor would it have been competent to have proved the declarations of Holland and Estell, lessors of plaintiff, as to the extent or limits of the Salmon and Cliff vein, providing the extent and limits of the same, at the time they may have made any declarations, because of want of development, were entirely unknown. Such declarations at such a time could have been nothing more than mere speculation, and wholly incompetent for the purpose for which they were offered. Neither would the opinion of the respondent in 1876, as to the location of the Scratchowl claim, or the opinion of any witness as to the dip or direction of the ore in any other veins, make any difference.

The possession of the respondent was sufficient to maintain this action. He had possession of the surface ground, and such posses-. sion gave him possession of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of the surface lines extended downwards vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downwards as to extend outside the vertical side lines of the surface location. U. S. St. § 2320. Possession of the surface of a miningclaim location is possession of all veins, lodes, and ledges, the top and apex of which are inside the surface lines, although such veins, lodes, and ledges, as they go downward, may extend outside such surface lines; and possession of the surface ground protects such veins, lodes, and ledges from the operation of the statute of limitations. Therefore, before the defendants could set up any adverse claim to the Salmon and Cliff extension vein, they ought to have shown they were in possession of the same at the surface. No adverse possession could become operative by going outside of its boundaries and sinking a shaft upon what they claimed as another location, and striking the Salmon and Cliff extension on its dip, and outside of its surface lines, no matter how long continued, if unknown to respondent and his lessors. In such a case the statute would bev.2,no.1-2

gin to run only from the time it became known to the Salmon and Cliff owners, their predecessors, or assigns, that the defendants had entered into the possession of the vein under ground and outside of its surface boundaries. Such owners could have no right to enter upon the defendant's ground, or into their shaft or works, and therefore no means of knowing the extent of the defendant's possession, or what title they might be claiming by virtue thereof. Adverse possession, in order to ripen into a title, must be open, notorious, and under a claim of right. The defendants set up no claim to the Salmon and Cliff extension. They deny that they ever worked upon the same. They claim title by virtue of the Sharktown and Scratchowl locations, and allege that all their work was done upon such locations. They therefore can claim nothing by virtue of adverse possession of the Salmon and Cliff extension. They declare that they held no such possession, and claim no interest in that vein. Under these averments in their answer they can claim nothing by adverse possession. Their pleading must not be contradictory or inconsistent. Their testimony must not contradict their averments. having denied in their answer that they ever had possession of the Salmon and Cliff extension lode, it was error for the court to refuse to admit testimony in their behalf that they had taken forcible possession thereof.

If under the state of circumstances disclosed in this case, the defendants might have availed themselves of the statute of limitations, they have not so pleaded the same as to become entitled to the benefits thereof. They claim under the statute of February, 1865, and January, 1872, which were repealed by the act of February, 1877.

The defendants also claim by virtue of a cross-vein. All competent testimony on this issue seems to have been fairly submitted to the jury. In such a case priority of title governs, and the prior location is entitled to all the ore or mineral contained within the space of intersection, but the subsequent location has the right of way through the space of intersection, for the purposes of convenient working of the mine. U. S. Rev. St. § 2336. If a vein with a prior location crossed another, such vein would not disturb the possession of the subsequent locator, except as to the extent of the cross-vein, and would entitle the prior locator to the ore and mineral contained in the space of intersection. If with a subsequent location, the locator would be entitled only to a right of way to the extent of his cross-vein, for the purpose of working his mine, and to no other rights; and if he should take the ore contained in the space of intersection he would be a trespasser, against whom the prior locator in possession of the surface ground might maintain an action of trespass.

Judgment affirmed.

LOCKEY V. HORSKY.

Filed February 2, 1882.

The objection that the court below erred in sustaining a motion for a nonsuit, cannot be considered in this court on appeal, unless the evidence is before us, as the question cannot be determined without it.

Where a demurrer to the answer is filed and overruled, it is waived by the filing of a replication and going to trial.

For the purpose of constituting adverse possession by a person claiming under a written instrument, the land is deemed possessed when protected by a substantial inclosure; and no more than the land actually occupied is deemed to be held adversely.

From Third district, Lewis and Clarke county.

M. Bullard, for appellant.

Toole & Toole, for respondent.

CONGER, J. This cause was tried by the court, a jury having been waived. It was an action to recover the possession of a certain piece or parcel of ground, situate in the town of Helena, and described as 10 feet front on Main street by 123 feet deep, off of the north side of lot No. 14, in block No. 37, of the town-site of Helena, and for damages for withholding possession. Upon the trial of the cause the court found special findings of fact as follows, to-wit:

(1) That this cause was commenced in this court by the filing of the complaint and the issuing of a summons thereon on the twentyninth day of July, 1879.

(2) Thereafter, to-wit, on the twenty-ninth day of July, 1879, said summons was served upon the defendant personally by the sheriff of said Lewis and Clarke county, as appears by his return on file.

(3) That the predecessors in interest of the said defendant went into actual possession and occupancy of the property in controversy in the year 1866, were inhabitants of the town of Helena, and continued in such possession up to the time of the sale and conveyance of the same to the defendant.

(4) That the probate judge of Lewis and Clarke county, Montana territory, entered said town-site, as provided by law in such cases, on the seventh day of January, 1869, and there, on the day of May, 1869, made to the predecessors in interest of said defendant a deed for lot 15, block 37, in said site, plat, and survey, under which the defendant, as grantee of such predecessors, claims the property in controversy, since which date the defendant and his predecessors in interest have been in the actual possession of the property in controversy, the same having been inclosed by a substantial fence in 1870, and prior to the issuance of the deed for lot 14 by the probate judge to the plaintiff, which fence has been maintained by the defendant and

his predecessors in interest from that date until the date of the commencement of this action.

(5) That defendant since his purchase of the said property, and his predecessors in interest since the year 1866, and up to the bringing of this action, were in the actual possession of the property in controversy, and since 1870 have had the same inclosed by a substantial fence, and during all of said time have claimed title to the same exclusive of all other right.

(6) That on the fifth day of December, 1870, the probate judge conveyed by deed to the plaintiff the property in controversy while the same was so in possession of said defendant's predecessors in interest, and that ever since said conveyance, said defendant and his predecessors in interest have occupied and possessed said property under claim of title thereto, with the knowledge of the plaintiff, and that the plaintiff up to the time of the commencement of this suit was not and never had been in the possession of said property.

The court finds in other findings that plaintiff received a deed to lot 14 from the probate judge on the fifth day of December, 1870, which deed covers the 10 feet in controversy; that the defendant and his predecessors in interest have been in the possession of the 10 feet in controversy since 1866, and have held such possession by claim of title, by virtue of their deed to lot 15.

The court found as matters of law:

(1) That the defendant is the owner of the property in controversy by virtue of the occupation and possession of the same by his predecessors prior to and at the time of the plat and survey under the town-site act and his deed of conveyance therefor.

(2) That any claim plaintiff may have had thereto was and is barred by the statute of limitations since the receipt of his deed for the same, and before his cause of action, if any, arose therefor, to which findings of law the plaintiff duly excepted.

The court rendered judgment for defendant. The appellant demurred to defendant's answer, which demurrer was overruled. The filing of the replication and going to trial is a waiver of the demurrer and it cannot now be considered.

Appellant claims the court erred in sustaining defendant's motion for nonsuit. This claim cannot be considered in this court on appeal, for the reason that the evidence is not before us, and without it the question cannot be determined. As to the error urged in the admission of improper evidence, there is no statement or motion for a new trial. It will be presumed the court below proceeded correct y. Whatever may be said as to the first finding of law by the court below, the finding of facts warrants the second finding of law, and it is correctly stated.

The cases cited by appellant, when applicable, are themselves in point. 23 Cal. 437; 38 Cal. 78; 31 Cal. 154; and 43 Cal. 250. See section 34, Code Civil Proc. for purpose of constituting adverse pos

It is

session by a person claiming under a written instrument. deemed to have been possessed, etc., when protected by a substantial inclosure. The same is said in section 36; and in section 35 the law is stated to be that no more than the land actually occupied, and no other, is deemed to have been held adversly.

It is clear the second findings of law are correct, and our conclusion of the rights in this cause, and the judgment of the court below is affirmed.

KERMON . GILMER and others.

Filed February 2, 1882.

Where a passenger is injured by his own act in jumping from a stage coach, through fear of an injury by reason of the violent conduct of the horses, no presumption of negligence arises from the accident itself; and if the complaint states that he so acted through fear of great bodily harm, without stating that he exercised the degree of care and prudence that a reasonable person would have exercised in the same circumstances, the complaint is defective as not stating a cause of action.

A suitor has a right to a full panel of 24 from which to first select a jury, such panel to be selected by the commissioners; and should the judge and sheriff select names from which to complete the panel, a challenge to the array therefor should not be overruled.

From Second district, Deer Lodge county.

Robinson & Napton, for respondent.

Stephen De Wolfe, for appellant.

CONGER, J. This action was for injuries received by the plaintiff while a passenger on defendants' coach, on the thirtieth of June, 1879, between the towns of Deer Lodge and Helena, and plaintiff recovered a judgment for the sum of $17,167, and costs of suit. From this judgment defendants appeal to the supreme court, and assign as error-First, that the court erred in overruling their de murrer to plaintiff's amended complaint; second, that the panel for the trial jury was not drawn in accordance with the law; third, exceptions to instructions; fourth, excessive damages; fifth, that the evidence was insufficient to justify the verdict.

With regard to the fourth and fifth assignments of error, they were eliminated from the cause by the order of this court, made at the August term, when the court struck out from the statement the evidence therein contained, and are not therefore considered in this opinion.

Referring to the assignments of error in their order, there is, first, the demurrer of defendants to plaintiff's amended complaint, which