dissenting. — Convinced that the finding of the jury is consistent with the weight of reliable evidence, and works the more equitable result, I am constrained most respectfully to dissent from the opinion just read. I do not propose to discuss the testimony in detail. This is not a contest between licensees and the owner of the land, but between two sets of licensees. The-plaintiffs seek affirmative relief, and to obtain it must show affirmatively their right to it. They must rely upon the strength of their own, and not upon the weakness of the defendants’ right.
Now, the jury found from the evidence that the plaintiffs’ lease or license was not in force when the defendants commenced to work upon the premises. If this is so, then their bill ought, without further inquiry, to be dismissed.
In reference to a question of this character, viz., whether the evidence did not show an abandonment by the plaintiffs of their right to mine, the finding of the jury, especially a jury of the vicinage familiar with mining-usages and customs, ought to be regarded as entitled to peculiar weight. And the. finding was, I am satisfied, well'warranted by the evidence and circumstances. The plaintiffs’ alléged license dated as far back as 1852 or 1853. Defendants did not commence mining'until 1863. For quite or near five years prior to this time the plaintiffs had not struck a stroke or expended a dollar in mining upon the land of Wilde. The shafts which they had previously sunk had all been filled .up. It is admitted that defendants had no notice of plaintiffs’ alleged rights. It was only when the defendants, after great labor and expense, had struck a valuable mineral deposit that the plaintiffs, by the assistance and collusion of Wilde (the licensor, and who was entitled to a greater rent under the license to the plaintiffs than under that to the defendants), set on foot and sought to re-animate their defunct and *406long abandoned claim, to reap the fruit of the toil and good fortune of the defendants. To this scheme, Wilde, having a direct pecuniary motive, lends his active assistance. His testimony, upon which the plaintiffs largely rely, and his conduct toward the defendants, impress me most unfavorably. I must be pardoned if I do not feel it safe to follow where he is the guide. The miner by whose toil mineral has been found should not be deprived of it in favor of claimants whose case is so suspicious as that of the plaintiffs. I confess that my sympathies are with the men by whose labor and money the discovery was made. And they are against those who lie in ambush to surprise the toilsome and fortunate discoverer with dormant and concealed claims. I am in favor of sustaining the finding of the jury, because it denied the existence of the stale claim or lease of the plaintiffs, and because it secured to the defendants as against the plaintiffs the fruits of their discovery.
The majority opinion founds an argument against the defendants on the ground that their license from Wilde was within the statute of frauds. This, I think, is wholly immaterial, because, as before observed, the plaintiffs must rely upon their own title and right, and because they cannot set up for Wilde (who is not a party), as against the defendants, the statute of frauds.
I am of opinion that the proper decree would have been and is one dismissing the plaintiffs’ petition, but as the majority of the court think otherwise, the decree below must stand
Affirmed.