delivered the opinion of the Court—Heydenfeldt, J., concurring.
The Court below properly refused the motion for a new trial.
The testimony set out in the plaintiffs’ affidavits, is, at best, cumulative, and would serve to contradict the defendants’ witness. The appellants cannot complain of surprise. There was but one question in the case; that was, whether the line dividing the plaintiffs’ and defendants’ claim ran S. 57 J E., as contended by the plaintiffs, or S. 58 E., as contended by the defendants. To this issue, witnesses were summoned and examined, and the case went to the jury upon it. If the plaintiffs were at all surprised by the testimony of the defendants’ witnesses, they should have submitted to a nonsuit, and cannot now, after taking the chance of a verdict in their favor, be allowed a new trial on such ground as they rely on.
The first instruction asked by the plaintiffs was property refused.
In the absence of mining rules regulating the subject of claims, their courses, distances, etc., the fact that a party has located a claim bounded by another claim, raises no “ implication,” or inference, that the last located claim corresponds in size, or the direction of its lines, with the former.
The witness, Jenkins, was not incompetent; his wages did not depend upon the fact, whether gold was taken out of the particular locality in dispute, although he was entitled to be paid out of it, if any was taken out; but his wages did not depend upon this fact, and therein this case differs from the one of Shaw et al. v. Davis, in which the witness, who was a broker, and called for the purpose of substantiating the sale, testified on his voir dire, that if the sale failed, according to the custom of brokers ho was not entitled to commissions.
Judgment affirmed.