The plaintiffs were not in possession of the premises in controversy, in May, 1873, when the action was brought. The fifth finding is, that the defendants were then in possession, and had been so in possession ever since August, 1870. The action is not brought to recover the possession of the premises, but is an action of trespass. The plaintiffs had judgment for one dollar, and also perpetually enjoining the defendants from working the premises or removing the gold or earth therefrom. "Where the plaintiff is actually dis-seized of the land, and the defendant is in the adverse possession thereof, an action of this character cannot be maintained.
Judgment reversed and cause remanded.