(dissenting) — "While we have not been inclined to apply the doctrine of laches within the period of statutory limitation, we have, in common ivith other courts, held that the doctrine is peculiarly applicable where mining property is involved.
“The doctrine has been applied in such cases because the character of the property or the manner of its transfer, and all the incidents attending its use and OAvnership, are circumstances to be considered.” Gray v. Reeves, 69 Wash. 374, 125 Pac. 162.
It is because mining property is speculative in character and subject to sudden and Afiolent fluctuations in value, and what may be worthless today may become of great worth through the faith and industry of one owner as against a lagging, noncontributing partner.
“Property worth thousands to-day is worth nothing to-morrow; and that which would to-day sell for a thousand dollars as its fair value, may, by the natural changes of a week or the energy and courage of desperate enterprise, in the same time be made to yield that much every day. The injustice, therefore, is obvious, of permitting one holding the right to assert an OAvnership in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of another, to come in and share the profit.” Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 592, 593.
See, also, 3 Lindley, Mines (3d ed.), §782; 18 R. C. L., Title “Mines,” § 149, pp. 1253, 1254.
*28Granting all that respondents claim, I cannot distinguish this case from Patterson v. Hewitt, 195 U. S. 309; Johnston v. Standard Min. Co., 148 U. S. 360; Waterman v. Banks, 144 U. S. 394; Steinbeck v. Bon Homme Mining Co., 152 Fed. 333; Jackson v. Jackson, 175 Fed. 710; Cunningham v. Independence Consol. Min. Co., 58 Wash. 371, 108 Pac. 956; Ferrell v. Lord, 43 Wash. 667, 86 Pac. 1060; Gamble v. Hanchett, 34 Nev. 351, 432, 126 Pac. 111; Great Western Min. Co. v. Woodmas of Alston Min. Co., 14 Colo. 90, 23 Pac. 908; Graff v. Portland Town & Mineral Co., 12 Colo. App. 106, 54 Pac. 854; Rogers v. Van Nortwick, 87 Wis. 414, 58 N. W. 757, and the decision of this court in Florence-Rae Copper Co. v. Iowa Mining Co., 105 Wash. (.. . .), 178 Pac. 462, which was decided after our opinion in the principal case was handed down. And with all due respect to the decision of the court, the cases I have cited are not distinguished, although we were invited to do so by counsel.
There are other grounds which, in my judgment, justify an overruling of our former opinion and a reversal of the case. They are not discussed in the opinion, and the court being disinclined to treat them as worthy of comment, it would avail nothing for me to discuss them. But if respondents are to recover, it would seem to be no more than just to compel a payment pro tanto on the cost of proving the mining claim, and because of which respondents now see fit to assert an interest in it. They have eaten their cake and have it, and of this can any man say more!