The Monte Cristo, Swanton, and Exchange Companies located separate claims for tunnel-mining, at or near the head of a very steep ravine, in 1853. The different tunnels of these different companies penetrated under the mountain, to the distance of several hundred feet, where they found rich deposits of gold, in a hard formation, like cement, which did not dissolve readily in water, until after exposure to the atmosphere for a considerable space of time. From the character of this formation, it resulted that the first washings only extracted a portion of the gold, leaving the other portion to flow off with the tailings, which were deposited on a flat, several hundred feet below the mouths of the tunnels. The owners of the Monte Cristo tunnel posted a notice, in 1854, stating that they claimed the tailings running from their sluices, and that they intended to wash the tailings again. The tailings from the different tunnels were partially mingled, though some effort was made to keep them distinct. The mass of tailings could readily be distinguished from the soil *244of the flat on -which they were deposited, by the difference in color and appearance; and the flat was the first point where, from the natural features of that locality, the tailings could find a resting-place. In the summer of 1855, the parties under whom the defendants claim, located some twenty claims, called the Express Company’s claims, on this flat, including a portion of the ground upon which the tailings were deposited. The Monte Cristo Company sold their tailings to plaintiffs, who went upon the flat, and erected their sluices, which were abated by the defendants, under a claim of right. This suit was brought to recover damages for the injury. The defendants had judgment in the Court below, and the plaintiffs appealed.
The Court, at the request of the plaintiffs, instructed the jury that “ if they believed that the Monte Cristo Company were the first to appropriate the ground covered by the tailings, and, while continuing to hold and claim the same, said company conveyed the tailings caught or stopped on said ground to plaintiffs,” and that afterwards the defendants did the injury complained of, then the plaintiffs were entitled to a verdict.
After giving the first instruction, the Court refused to give the second, as follows : “To entitle defendants to work the tailings from the Monte Cristo Company, after being sold to plaintiffs, the defendants must show that they had purchased said tailings, or that said tailings had been permitted to run upon ground after such ground had been lawfully appropriated by defendants.”
This instruction was properly refused, as it was too broad in its terms. By it, the defendants were not permitted to wash the tailings deposited upon the claims, before they took them up, even conceding the intention of the Monte Cristo Company to abandon them.
The pay-dirt, as it is called, and the tailings, were certainly the production of the labor of the company, to which they were justly entitled, under proper circumstances. When a place of deposit for tailings is necessary, for the fair working of a mine, there can be no doubt of the miner’s right to appropriate such ground as may be reasonably necessary for this purpose; provided, he does not interfere with pre-existing rights. His intention, however, should be clearly manifested by outward acts. Merely posting a notice would not seem to be sufficient. To suffer the tailings to flow where they list, without obstructions to confine them within the proper limits, is conclusive evidence of abandonment, unless there is some peculiarity in the locality, constituting an exception to the rule. It may happen, in some localities, that no artificial obstruction would be required to confine the tailings within the proper limits. In such case, it would not be necessary to do an idle thing. But in this instance, the flat was some five hundred yards-long.
*245The Court further instructed the jury, in substance, that if the Monte Cristo Company constructed a dam upon vacant ground, for the purpose of catching the tailings, and then sold them to plaintiffs, and the defendants afterwards did the injury alleged, the plaintiffs were entitled to a verdict. But, if the tailings were allowed to flow upon mining-ground, lawfully located by defendants, or their predecessors, there to mingle with the tailings from other companies, then the plaintiffs could not recover.
It would not seem to be true, that the mingling of the tailings from different claims would give a stranger any right to the mixed mass. It may be a circumstance to prove the intention of those who permitted them to be thus mingled, so as to show an abandonment. But this is the extent to which such a fact can go. If A can have a right to a place of deposit, B may have, also; and if they can have such right separately, they can mix their property, if they please so to do. If parties voluntarily mix their property, this does not give a mere stranger any right to the mixture. The parties hold in common. (2 B. Com. 405.)
But this feature in the instruction could do the plaintiffs no injury. If we strike out this portion of the instruction, then the objection would be removed, and still the plaintiffs left in the same position. By the instruction, the Court required the jury to find two grounds to bo true, in order to justify the defendants, the last of which was immaterial; but it could only injure the defendants, and not the plaintiffs. Whether the tailings were mingled or not, the defendants were entitled to a verdict, if the tailings were flown upon their own claims.
The third instruction offered by the plaintiffs was, also, properly refused. The substance of the instruction was, that a party turning tailings down upon a flat not claimed by him, is presumed to abandon them; but this presumption may bo rebutted by other circumstances, showing an intention to continue the claim; and the act of the parties, in turning their tailings upon unoccupied ground, does not forfeit their right, unless they intend, by so doing, to abandon.
The place of deposit must be claimed, as such, or as a mining-claim; and the intention of the claimant must be manifested by outward acts. The rights of others being concerned, the intention' not to abandon is not sufficient alone to sustain the right. Although the intention not to abandon the right may in fact exist, and may be susceptible of clear proof, still the party may fail for want of a clear manifestation of that intent. The instruction placed too much stress upon the intention of the party. The instructions given by the Court were better applicable to the facts of the particular case. As an abstract proposition of law, the third instruction was not so far wrong; but its terms *246were too broad for the circumstances of the case, and might have misled the jury.
There was some contrariety in the testimony. The instructions fairly submitted the question to the jury, and their verdict seems to have been warranted by the testimony.
Judgment affirmed.