The only part of the plaintiffs' mining claim which the defendant was detaining from them at the commencement of the action is the tunnel above described. That, consequently, is all there is in dispute. The order in the condemnation proceeding authorized the defendant, during the pendency of those proceedings, to take possession of that part of the tunnel which passed through the Atlantic mining claim. This order, if valid, would seem to be a complete defense as to that part of the ground. Its validity is attacked only upon one point, and that is that a tunnel constructed for the purpose of one mine cannot be condemned for the use of another mine; and a long list of authorities are cited wherein that principle has been asserted. We do not, however, deem it necessary to decide the point upon this appeal. As this is a collateral attack upon the order, the question is not whether it is erroneous, but whether the court had jurisdiction to make it. (Van Fleet, Coll. Attack, secs. 16, 17.) Condemnation proceedings are commenced by the filing of a petition. (Gen. Stats., sec. 257.) Section 267 provides that at any stage of the proceedings the court may make an order placing the petitioner in possession of the property upon his giving a sufficient bond. The petition filed here alleged that the tunnel had been constructed by the defendant. If so, it probably would not be contended that the right to maintain it was not subject to condemnation (Rand. Em. Dom., sec. 118), and consequently subject to any order that might be lawfully made in the proceedings. The evidence in this case *Page 87 tends to show that the allegation in the petition that the defendant had constructed the tunnel is not true, but this is immaterial, as jurisdiction to act comes from the averments of the petition, and not from proof of their truthfulness. (Stuart v. Allen, 16 Cal. 474;Richardson v. Butler, 82 Cal. 181; Van Fleet, Coll. Attack, sec. 60.) The proper procedure would, doubtless, have been to have stayed this action until the application to condemn had been finally disposed of, and probably that would have been done had either party asked it; but, as they did not, we do not think the court erred in rendering judgment for the defendant as to that part of the tunnel covered by the order. Should the defendant finally fail in the proceedings, this judgment will probably be no bar to another action of ejectment.
As to that part of the tunnel outside the Atlantic claim it appears unnecessary to consider the interesting question, argued at considerable length, of whether a tunnel run through the public mineral lands of the United States by a mine owner, for the purpose of developing or working his mine, can be taken from him by the subsequent location of the ground upon which it is situated outside the boundaries of his claim. The evidence is clear that the tunnel was constructed by the owners of the Atlantic mine, and was appropriated to and used for the purposes of that mine for a number of years. Whenever the mine was conveyed, the possession of the tunnel went with it. It was occupied and treated as a part of the mine, and, at least as against all the world except such a subsequent locator, was part and parcel of it. The evidence also shows, without contradiction, that, when Stanley took a lease of the property, he was placed in possession of the tunnel as a part of his leasehold estate. Under these circumstances, he was estopped to deny the title of his lessors. Having entered into possession under the lease, the outstanding title purchased from Brown, whether good or bad, could not have been asserted by him until after he had surrendered the possession to those from whom he had obtained it. Such being the case, his assignee of the lease, the defendant, stands in no better position, and is also estopped to deny that title; and. as no question is made that the plaintiffs have succeeded to the title, he is equally *Page 88 estopped to deny their title. (Wood, Land Ten., sec. 232; Tayl. Land. Ten., sec. 91; Bigelow, Estop. 396;Rector v. Gibbon, 111 U.S. 276.)
The fact that the defendant, at the same time that he obtained an assignment of the lease, also purchased from the lessee, Stanley, a half interest in the Contact location, cuts no figure in the case; for, having obtained the possession from him, he is equally estopped, no matter how many other titles he may have. The same principle will apply to the tunnel location. If it has any validity in such a case as this, which is very doubtful, the defendant is estopped to assert it.
Judgment reversed, and cause remanded for a new trial in accordance with this opinion.