This is an action of ejectment, to recover the possession of a tract of land as a quartz mining claim.
Plaintiffs allege ownership and possession of the premises on the 17th of May, 1866, and that on that day the defendant, ’ S. W. Lee, “ unlawfully, and without right of title, entered into and upon the same, and ousted the plaintiff therefrom, and wrongfully withholds the possession thereof from plaintiffs.”
The defendant’s answer denies the ownership and possession of plaintiffs, and alleges as substantive matter of defense, that the premises in controversy were, at the time of the commencement of the suit, and for more than nine years theretofore had been, the property and in the possession of the “Empire Mining Company,” a corporation; and that the said Empire Mining Company still is the owner, in possession, and entitled to the possession thereof; ‘ ‘ and that all the possession, ownership and acts done by the said defendant, S. W. Lee, were and are, by virtue of the ownership of the said Empire Mining Company, and as the manager and acting agent thereof.”
The cause was submitted to a jury upon the evidence, under instructions by the Court, as asked by the respective *369parties, and a general verdict was rendered in favor of defendant; whereupon judgment was entered by the Court in favor of defendant, and against plaintiffs for costs.
All the instructions of the Court to the jury appearing m the record, were given at the request of the parties; three at request of plaintiffs, numbered first, second and third, and eleven at request of defendant, numbered respectively first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, twelfth; and plaintiff duly excepted, at the time the same were given, to the second, third, fourth and fifth instructions given at request of defendant.
The appeal is from the judgment, and the giving the above instructions second, third, fourth and fifth, at request of defendant, constitute the errors specified by plaintiffs in their statement on appeal.
The second instruction given at request of defendant, assumes as a fact established one of the issues tendered by ■the pleadings, or else it assumes that an outstanding title or right of possession in the Empire Mining Company, as between it and plaintiffs, will defeat the plaintiffs’ right of recovery as against defendant, S. W. Lee, either of which assumptions in an instruction is error, and presumptively misled the jury to the prejudice of the plaintiffs.
The instruction reads as follows: “If the jury believe from the evidence, that after the lapse of more than one year from the time of the last work done by plaintiffs upon the claims in dispute, the defendant, or Empire Mining Company, or its grantors, entered upon such claims and re-located the same under the local customs governing the taking up of quartz mining claims, and have ever since then continued to hold and occupy the same, and to work the same in accordance with such local usages, the jury must find for defendant—provided that the jury believe from the evidence that the mining customs of the district in which the ground in dispute is situated, required the expenditure of one hundred dollars’ worth of labor, or twenty days’ work, on each set of claims in each year, and that under such customs the failure *370to make suck expenditure for the space of one year, subjected the claims to re-location.”
The defendant had, in his answer, alleged as substantive matter of defense, ownership, possession, and right of possession of the demanded premises in the Empire Mining Company; and that in his entry upon, and ouster of plaintiffs from the premises, he acted in behalf of and as the agent of the Empire Mining Company. Evidence was introduced by defendant, tending to establish the relation and connection of defendant with the Empire Company, as by him alleged, and whether such relation and connection was so actually established by the evidence, was a material question of fact to be left to the jury. (Cahoon v. Marshall, 25 Cal. 197; Preston v. Keys, 23 Cal. 193.)
This action involves the right of possession of the demanded premises, as between plaintiffs and defendant, S. W. Lee; and plaintiffs rely solely on prior possession; hence, proof of an outstanding right of possession in the Empire Mining Company cannot avail defendant as a defense to the action, without connecting himself with such outstanding right of possession in the manner alleged in his answer ; and whether this connection was so established by the evidence, should have been submitted to the jury.
In actions for the recovery of the possession of mining claims upon public lands, where neither party claims the title in fee, but only rely upon possessory right, the superior right prevails, and the rule that plaintiff must recover upon the strength of his own title, and that proof by defendant of an outstanding title in a stranger will defeat recovery by' plaintiff does not prevail, as in actions of ejectment, where the strict legal title is litigated. (Bird v. Lisbros, 9 Cal. 1; Hubbard v. Barry, 21 Cal. 321; Richardson v. McNulty, 24 Id. 339.)
If the Empire Mining Company had desired in this suit to contest with plaintiffs the right to the possession of the premises in controversy, it should have taken the proper steps to have the corporation substituted as defendant in place of Lee. This does not appear to have been done or attempted; hence *371the Empire Mining Company is a stranger to these proceedings.
The fifth instruction, given at request of defendant, to which exception was taken, and now assigned as error, is obnoxious to the same objection in the above particulars as the second.
The fourth instruction, given at request of defendant, I think gives an erroneous construction of one of the admitted “customs, rules and regulations” of the mining district, in which the demanded premises are located. This rule and custom, as admitted, reads as follows : “ That when two or. more separate sets of claims and separate locations lie immediately contiguous to each other, any and all work and labor expended upon any one set of contiguous claims is considered work upon them all, and "will hold them all under the unwritten local customs.”
The construction given to this mining rule or custom in the fourth instruction is as follows: “The jury are instructed that under the local customs and usages admitted in evidence, and agreed to by the respective parties to this action, two or more separate sets of claims or separate locations lying immediately adjoining each other, and owned by the same party, are to be considered and may be held as one claim or location, and that all work and labor expended upon any one set or portion of such contiguous claims is to be considered work upon them all, and will hold the entire tract embraced in such separate locations under the unwritten local customs aforesaid.”
As I understand and construe the above admitted rule or custom, its evident import and meaning is, that where several distinct locations or sets of claims are contiguous to or adjoining each other, and all are owned or held by the same person or party, work upon one set is considered work upon all, and that the amount of work required to be done upon the one set, in the aggregate, must be equivalent to twenty days, or $100 expended for each set of claims so owned and located. This same error of construction is repeated and directly applied in the fifth instruction, by declaring that twenty days or $100 worth of work done on any one sot or *372contiguous sets of claims owned by the same party is a compliance with the custom, and sufficient to hold all.
Again, the latter clause of the second instruction given at request of defendant seems to submit to the jury, upon the evidence, the construction of an admitted custom, which had been previously determined hy the Court in the last paragraph of the first instruction given at request of plaintiffs, and evidently had a tendency to nullify or destroy the effect of that clause of the first instruction given at plaintiffs’ request, and confuse the jury upon a question material to plaintiffs. I, therefore, am of opinion the judgment should be reversed and cause remanded for a new trial.
Sanderson, J., expressed no opinion.