This action is in the nature of ejectment, brought to recover the possession of certain placer mining ground, situated in Shoshone county. The case was tried before the court with a jury. Yerdict and judgment in favor'of the defendants. The appeal is from the judgment only, but the judgment-roll contains the complaint, answer and bill of exceptions. The complaint alleges that on the eleventh day of June, 1883, the plaintiffs, jointly with one Jesse A. Pritchard, by their attorney, A. J. Pritchard, made a certain mining location in pursuance of the act of Congress of May 10, 1872. The answer admits that the pretended ownership of the mining ground described in the plaintiffs’ complaint is based upon a pretended location thereof by one A. J. Pritchard, as the agent of the plaintiffs. Although we have no evidence before us, taken at the trial as to this point, yet we have this allegation of the complaint and the admission by the answer. It was therefore proper for the plaintiffs to request the court to charge that a valid location of a mining claim may be made by a duly authorized agent in the name and in the absence of the principal, and that when such location is once proved it as completely segregates the ground so located from the public domain as though located and held by the locator in person. The fact of the location by an agent was in the case as fully as it would have been had there been evidence. It was absolutely necessary for the plaintiffs, in making out their case, to prove this allegation; and they could only prove it in the manner alleged. The answer having admitted the manner of location, evidence of the manner might not be necessary, but it furnishes no excuse for the court to refuse to instruct upon that subject, because the plaintiffs’ whole claim, and the validity of their location, depended upon the question whether it could be made by an agent. It is unnecessary for us to go into the question as to whether this request to charge is proper or not. It was the law of this case, for the reason that the same question had been presented in the same action on a former appeal (ante, p. 333, 13 Pac. 481), and the charge was there held to be proper. In that opinion *571we certainly concur. For the refusal of the court to charge as requested, the judgment is reversed, and a new trial ordered.
Weir, C. J., and Berry, J., concur.