The learned circuit court decided that the defendant made a valuable discovery of a crevice or range of lead ore upon the plaintiffs’ land before his authority or license to mine upon the land was revoked. It is not entirely clear from the findings upon what ground the learned circuit judge based this authority or license. It is attempted, as we understand the argument of the learned counsel for the defendant, to sustain his right or license upon two distinct and independent grounds: (1) Through the Tipping lease given in September, 1874, to the Coon Branch Mining Level Company; and (2) by parol license given the defendant by the plaintiff Fox.
"We do not see how the defendant acquired any rights from the first source; for, while the evidence shows that there was some talk between the defendant and different members of the Coon Branch association about assigning to him that lease, yet it was never in fact assigned. On the -contrary, when the defendant prepared a written assignment of the lease and handed it to the president of the association to he executed, the president and other members refused to sign it. The assignment, as drawn, included both the Shaw lease and the Tipping lease, but the evidence is entirely clear and conclusive that no assignment was ever *552made. It is true, the defendant, after lie purchased the Shaw tract in February, 1876,, prosecuted mining quite extensively upon that land, but this he did as owner. Nor can we see the least reason for claiming that the defendant acquired some rights in the Tipping lease because he was one of the original members of the Coon Branch association; for, so far as the Shaw tract was concerned, the association surrendered its mining rights in that land. The proof is very explicit and satisfactory that when the defendant purchased this land he insisted that th'e association should either work it according to the terms of the Shaw lease, which they had not done, or surrender the land to him. A majority of the members of the association deemed it advisable to surrender it, and this was in effect done; so that whatever mining was done upon the land by the defendant after he purchased it was in his own right as owner, and not under any lease which had been theretofore given by his grantor. As he was the owner,, all rights and iitle, legal and equitable, became absolutely vested in him. So upon this branch of the case we hold that the defendant can claim nothing under the Tipping lease.
The court below found that Fox verbally authorized the defendant to engage in and prosecute work for the purpose-, of trying to find lead ore on the plaintiffs’ land, and that, this authority or license was not revoked until after the defendant had made a valuable discovery on the land. We-think whatever rights the defendant has to mine on the land must be derived from the parol license, supported by the statute. The evidence in regard to such parol license is quite contradictory. We shall go into no discussion of the testimony which makes for or against the fact. I will, however, say that the evidence to establish such license is. not as clear and satisfactory to ' my mind as it seems to be-to my brethren. Incontestably there is considerable tes*553timony in the case which tends to show that Fox, as far as he had power so to do, gave the defendant verbal license to mine upon this land. Even in May, 1882, when the survey was made, he did not seriously object to the defendant’s mining upon it if the latter would pay one sixth rent for all mineral taken out above the white bed-rock. It appears that Fox purchased an undivided one-third of the land of Mary E. Tipping in April, 1819, and another third of Lawrence Tipping in January. 1881. The other third belongs to the minors, Treno and William. Tipping, subject to the dower interest of their mother. .After a careful examination of all of the evidence our conclusion is that we cannot reverse the finding of the trial court on the ground that no parol license is established. There is no satisfactory preponderance of evidence against the finding on this point, except as to the infant plaintiffs; consequently, under our rule, we cannot set it aside.
As to the other undivided third owned by the infant plaintiffs there is no proof whatever that any license was ever given by any one which can affect them. Whether a general guardian could give a parol license in their behalf without an order of the county court, is a question not presented. But certainly a license by one tenant in common to prosecute mining on land would not bind a dissenting tenant. It is certainly a proper matter for the county court to determine whether the interests of the minors will be promoted by having mining done upon their land. The judgment, so far as it relates to the interests of the minors in the land, we deem erroneous. iTo parol license has been shown which can bind them. Mr. Fox might give a legal right to dig and mine upon the land so far as his interest was concerned. But this would not bind the infants. Whether the parol license given by Fox is of any value without the further license lawfully obtained of a guardian representing the infants, is a point we need not consider now.
*554The able and ingenious counsel for the plaintiffs insists that there is no evidence whatever which justifies the conclusion that the defendant had a parol license from Fox to mine upon the land which, even as to him, was irrevocable under sec. 1647, R. S. That section, among other things, provides “ that no license or lease, verbal or written, made to a miner, shall be revocable by the maker thereof, after a valuable discovery or prospect has been struck, unless the miner shall forfeit his right by negligence such as establishes a forfeiture according to mining usages.” Counsel says that this provision does not mean that a mere license to enter upon land, and dig and remove mineral therefrom, while executory, and before an actual entry is made under it, is not revocable. The language, he claims, is not susceptible of such a construction; that the words used imply or presuppose the existence of a license to mine, an entry of the land under it, and the striking of a valuable discovery or prospect upon the very premises covered by the license. We do not think the statute should receive this strict construction, because, if so construed, it would certainly, in some cases, defeat the very object of its enactment. Counsel well says that at the time of the passage of this law ah oral license to mine for lead ore was revocable by the maker even when executed, and where the miner had entered under it and made large outlays of labor and money, and had discovered mineral. In order, therefore, to> remedy this state of things, and protect the miner, this statute was enacted. Now, if it should receive the construction for which counsel contends, the purpose of its enactment would in a measure be defeated. Take, for illustration, a case nearly like the one at bar in all essential points. A miner goes to A. and R, who own adjoining lots, and obtains a license from each to mine upon his land on payment of the usual rent. He goes to work on the land of A., expends much labor and money in sinking shafts and running levels, and finally strikes a *555mineral-bearing crevice near tbe line, which, is absolutely certain to run into the land of E. Now, can the latter, in view of this statute, say to the miner just before this crevice is traced into his land: “ I revoke the license which I gave you to mine upon my land. You have made no actual entry upon it thus far — have really done no mining upon it. You cannot have the benefit of any discovery you have made, nor remove any mineral which, by prosecuting your work, you would obtain from the range if you followed it upon my lot ” ? No one can fail to see the wrong and injustice which the land-owner would perpetrate if allowed to revoke his license under such circumstances. Yet this would be the result if, as counsel contends, the license is revocable until an actual entry is made upon the land to which it relates and a valuable discovery is made upon it. In this case the defendant had run his drift nearly to the fine of the Tipping land. The crevice was an open one, bearing mineral, and persons crawled into the opening and actually found mineral in it on that lot. "We have no doubt, under the circumstances, that the license came fully within the statute, and was irrevocable at this time, so far as Fox’s interests are concerned.
But it is claimed that the license was revoked in August, 1880, if any had ever been given. There was a written notice put upon the Tipping lot, near the line, at that time, notifying the Coon Branch association, and all persons claiming under it, not to mine on that lot under the lease given in 1814, because that lease had been forfeited. The defendant undoubtedly saw this notice, but continued, for more than twenty months thereafter, drifting and running his level towards the Tipping land. It is not supposable that Fox was ignorant of these mining operations. If he intended to revoke any license which he had given the defendant to mine on the Tipping land, he should have notified the defendant personally of such revocation. The rules *556of frank, manly dealing required kirn to do this, in order that the defendant might be aware of his intention not to let him follow his level on the Tipping lot. So we are not inclined to treat the notice given as a revocation of any license which had been made to the defendant.
The only remaining question arises on the fifth .finding. The circuit court found that the question of the right to mine upon the plaintiffs’ land by the defendant, as lessee or as the discover of a valuable range, was not necessarily involved in any previous litigation between the parties. It appears that on the trial the plaintiffs offered in evidence the record in an action commenced, subsequent to this, by the defendant in this case against two of the present plaintiffs and two other parties. That suit seems to have been treated, both by counsel and court, as a legal action triable by a jury. On the trial of that action the court nonsuited the plaintiff. Now, it is said that that judgment, though in form a nonsuit, really involved the merits of the action so as to operate as an estoppel upon all issues in this. But we do not think this effect should be given to that adjudication.That action was between different parties, and the questions there litigated did not necessarily cover the grounds or issues embraced in this suit. That suit was in the nature of an action qua/re clausum to determine the right of the defendants there to sink a shaft from the surface of the ground to an opening below. The plaintiff was nonsuited, and the judgment therein given ought not to conclude the parties in this action from litigating the issues which are involved in the- pleadings.
It follows from these views that the judgment of the circuit court must be reversed, for the reasons given, as to the rights of the infant plaintiffs, and the cause remanded for further proceedings according to law.
By the Court.— It is so ordered.