delivered -the opinion of the Court-Cope, C. J. concurring.
This is an action to recover possession of certain mining ground, and damages for injuries thereto. The plaintiffs and defendants were each the owners of adjoining claims, and there was a dispute between them respecting the location of the division line, by which a portion of the mining ground was claimed by both parties. The plaintiffs had previously run them tunnel into and mined out a portion of the disputed ground, which was known to the defendants.
On the trial one Clark testified, as a witness for the plaintiffs, as to the acts of those who originally located the ground claimed by the plaintiffs, showing the posting of notices and the location of certain trees which marked the boundary lines, and of certain ditches and a shaft, and the location of the lines in relation thereto. He was then asked: “ Did the location you made include the ground in dispute ?” To which the defendents objected on the ground that the testimony showed that the location had been made by notices, and that they were the best evidence of the extent of the location. The objection was overruled, and the defendants excepted. The question was a proper one. The location does not seem to have been made by notices alone, and it was clearly proper for the witness, after stating the location of the lines of the claim, to state whether those lines included the ground in controversy.
After the evidence was closed the Court instructed the jury as *15follows: “ That in the matter of estoppel a different rule applies to mining claims from that applicable to other species of real estate; that an owner of a mining claim, the boundaries of which are not visibly marked, should notify strangers entering upon it of the nature and extent of his claim, and if he knowingly permits persons to enter upon his claim and expend money in working and improving it, without notifying such persons of his title, he is thereby estopped from setting up such title as against them.”
The first branch of this instruction is erroneous. The rules of law relating to estoppel in pais apply to mining ground the same as any other real estate claimed under a similar kind of title. The rest of the instruction is also erroneous, as it omits entirely several important and essential qualifications of the rule upon this subject. Thus it should state that the party entering did so under a claim of right or title, and that the true owner remained silent under such circumstances that his silence operated as a fraud upon the other party, and that the latter was induced thereby to make valuable and permanent improvements, and would therefore be injured by aEowing the true title to be set up against him. As was stated by this Court in the case of Boggs v. The Merced Mining Company (14 Cal. 368) : “ There must be some degree of turpitude in the conduct of a party, before a Court of Equity wiE estop him from the assertion of his title ; the effect of the estoppel being to forfeit his property and transfer its enjoyment to another.”
The respondents insist there was sufficient evidence to sustain the plaintiff’s case, independent of these instructions, and that he did not rely upon the doctrine of estoppel in the Court below. The case was tried by a jury, and it is impossible for us to teE upon what particular portion of the evidence they founded their verdict, or what instructions controlled them. They may have found for the plaintiff entirely upon these erroneous instructions, or they may have disregarded them entirely. It is sufficient, however, if it appears that they might have been influenced thereby, to make it our duty to send the case back for a new trial, that the error may be corrected.
The judgment is reversed, and the cause remanded for further proceedings.