(dissenting).
As will be seen from the last sentence of the foregoing opinion.,-the judgment is reversed in part, and partly affirmed. For this reason, alone, I should at least indicate in what part of the judgment I am unable to agree, and state the grounds upon which the dissent is based. In affirming the judgment *554as to Bloss, Herbert and Ilgenfritz, I concur; in reversing it as to Seymour, I dissent.
1. The evidence does not impress me as it does my brethren, nor can I agree with the application of the law as made by them to the facts of the case. After a careful’ reading of the record, Seymour’s conduct does not, in my judgment, warrant the severe characterization to which the opinion subjects it. The trial court found that Seymour “told Mrs. Fisher that he thought he could sell her interest in said property to the company, and that he would do what he could to assist her in making the sale of said property, and he further agreed then and there to look after her interest in said Shields mine and see that she was fairly treated in relation thereto so long as he was manager there; * * * that said Seymour did not agree to look after Mrs. Fisher’s interest in the American Flag.”
After Mrs. Fisher left Leadville and went to Tennessee there was correspondence between her and Seymour relative to an offer of purchase of the American Flag lode made by Sabin, as the president of the company of which Seymour was manager. Among other things, Seymour informed her that he must decline to act as her agent as to the Shields mine, and Mrs. Fisher then asked his opinion as to selling the Shields and what he thought of the American Flag. She referred him to Finn, the executor, and Col. Curry as her agent at Leadville, to whom Sejmour might give information concerning her inquiries. Concerning Sabin’s offer of purchase she later wrote that she had referred the matter to Mr. Finn, and that before she left Leadville she had given him a power of attorney to act for her, and so she left the matter entirely with him.
Upon this and other evidence the court made a finding as follows: “ I therefore find that G. M. Seymour was not the agent of Jennie A. Fisher in regard to the American Flag lode, that the only relation or understanding between them was that G. M. Seymour consented to assist her in selling her interest therein, and that there was no fiduciary relation *555existing between G. M. Seymour and Mrs. Jennie A. Fisher in relation to the American Flag lode at or during the time patent was being applied for on the Tiger lode.”
In my judgment the court was warranted in making this finding, and I am satisfied from the record, even if Seymour had been appointed the agent of Mrs. Fisher before she left Leadville, that it is apparent from her own letters, as well as the evidence and letters of Seymour, that neither of them supposed after Mrs. Fisher left Leadville that Seymour sustained any fiduciary relation towards her with relation to the American Flag, or was her agent for its sale.
2. I am unable to agree with the conclusion of the court that the evidence was uncontroverted that a vein of mineral was discovered upon the American Flag lode prior to the relocation of the Tiger lode. As I understand the record, there is a substantial conflict in the evidence upon this point; and under the well known rule of this court in such cases which precludes us from substituting our judgment for that of the trial court sitting as a jury, we ought not to set aside the finding of the latter that “ the said Little Tiger lode and the amendment thereof, the Tiger lode, was-a valid and subsisting location prior and superior to the American Flag lode.”
8. I do not understand that by the opinion in this case there is intended any departure from the doctrine laid down when the case was first before this court; but when it is said that the plaintiffs, under the issues joined in this case, may establish the invalidity of the Little Tiger location by showing that its discovery shaft was not upon unappropriated domain, but within a prior valid location, it would appear that the prior announcement is shaken, if not altogether overthrown. To say that this kind of evidence is improper to impeach the patent of the Little Tiger lode, but still admissible and competent for the purpose of determining whether it or the American Flag is the senior location, is to attempt to draw a distinction between the two cases where, in principle, none exists. The very fact which plaintiffs here by this evidence *556seek to establish was something which they might have shown before the land office, or in a suit in support of an adverse claim filed by them against the application for a patent by the owners of the Little Tiger location; and when they failed seasonably to protest, or to bring an adverse suit, they should be conclusively estopped, in this action, from setting up the invalidity of the patent location of the Little Tiger lode for either of the purposes named.
Further than this, I do not consider that, in the present state of this record, the order should be to enter a judgment against Seymour. If the judgment is reversed, it ought to be for a new trial as to his interest in the property.