second action the Statute seems to plainly provide. Code Sec. 272 (and Amendments, 1895, p. 141, 1899, p. 199), or he may recover in a single action.-Acts 1893, p. 349. The case of Ghost v. Shuman, 4 Colo. App. 88, sometimes cited on this point, makes no mention of section 272 and its special reference to a second suit in case of mining trespasses.

On

In Miscellaneous Cases.-For the measure of damages on refusal to accept déed, see Gilpin M. Co. v. Drake, 8 Colo. 586. On breach of contract to lease.Chambers v. Brown, 28 N. W. 561. In cases of negligence. Moody v. McDonald, 2 M. R. 187. tunnel contract.-Monroe v. Northern Pac. Co. Id. 652. Against lessor for mining the ground leased.—Chamberlain v. Collinson, 9 M. R. 37; Colo. F. Co. v. Pryor, 57 Pac. 51. Purchase of stock induced by defendant's false representations.-Smith v. Bolles, 132 U. S. 125; 16 M. R. 159. Warner v. Benjamin, 62 N. W. 179. Conversion of stock of no fixed market value.-Moynohan v. Prentiss, 51 Pac. 94.

On sale of coal. — Osgood v. Bauder, 39 N. W. 887. For stoppage of work on contract to sink, before shaft complete.-Mooney v. York Co. 46 N. W. 376.

Attachment in Aid of Trespass.-In 1872 an Act was passed, repeated in Sec. 119 of the Colorado Code of 1877, allowing mines and the ore extracted from the same to be attached in cases of alleged trespass; that is to say, where the same property was claimed by adverse parties. Its abuse, enabling any party who was able to furnish bonds to cripple the means of the opposite party, led to its repeal in 1879.

ACTIONS BASED ON NEGLIGENCE, ACCIDENTS,

ETC.

The same rule governs the liabilities of owners, lessees and contractors in case of accident to employees, as controls in other cases where the relation of master and servant exists and negligence is the foundation of the action.-New York Co. v. Rogers, 11 Colo. 6; McAndrews v. Burns, 39 N. J. L. 117; Perry v. Ricketts, 55 Ill. 234; 9 M. R. 687; Hall v. Johnson, 9 M. R. 684; Quincy Co. v. Hood, 77 Ill. 69; 12 M. R. 148; Strahlendorf v. Rosenthal, 30 Wis. 674; 10 M. R. 676.

The Degree of Care required of the master is fully stated in Southwest Co. v. Smith, 85 Va. 306; 17 Am. St. R. 59. The miner has no recovery for the ordinary and unavoidable risks of the business. - Cherokee Co. v. Britton, 45 Pac. 101.

Instances of Responsibility.-He is liable for failure to timber dangerous ground.-Trihay v. Brooklyn Co. 15 M. R. 535; Sampson Co. v. Schaad, 15 Colo. 197. Or for failure to observe his own code of signals.Silver Cord Co. v. McDonald, 14 Colo. 191; 16 M. R. 171. Or defective rope or hoisting gear.—New_York Co. v. Rogers, 11 Colo. 6; Myers v. Hudson Co. 150 Mass. 125; Donnelly v. Booth Co. 37 Atl. 874. Or for scales, the fall of which should have been foreseen.-Buckley v. Port Henry Co. 2 N. Y. S. 133; U. P. Ry. v. Jarvi, 53 Fed. 65. For a preventable cave. -James v. Emmett Co. 21 N. W. 361; Pantzar v. Tilly Co. 99 N. Y. 368. For rotten ladder.-Reese v. Morgan Co. 54 Pac. 759.

The mine owner must look to the proper support of his gangways and to the timbering and to the machinery above.-Quincy Co. v. Hood, 12 M. R. 148; Strahlendorf v. Rosenthal, 10 M. R. 676; Ardesco Co. v. Gilson,

10 M. R. 669; Soyer v. Great Falls Co. 37 Pac. 838. Failure to examine gangways.-Ashland Co. v. Wallace, 42 S. W. 744.

The miner has a right to assume that the roof is safe.-Van Esse v. Catsburg Co. 28 Atl. 200. The same as to the machinery. - Myers v. Hudson Co. 150 Mass. 125; 15 Am. St. R. 176.

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The owner is liable for accidents resulting from experimenting with new and untried explosives. Smith v. Oxford Co. 2 M. R. 208. Or for setting new employees at work fitting caps.-Rillston v. Mather, 44 Fed. 743; same case, 156 U. S. 391. Or storing magazines too close to works.-Bean v. Pioneer Co. 56 Am. R. 106. He must use all appliances readily obtainable known to science to prevent gas explosions.-Western Co. v. Berberich, 94 Fed. 329.

He is responsible when the accident can be traced directly to his own fault or the fault of his partner.Mellors v. Shaw, 9 M. R. 678. And generally where traceable to the fault of the superintendent or foreman.

Misfire.-Consideration of what is reasonable time to wait for blast.-Eureka Co. v. Bass, 8 So. 216. Full case on.-Anderson v. Daly Co. 50 Pac. 815.

The Lessor is not liable for the lessee's negligence. -Smith v. Belshaw, 26 Pac. 834. Otherwise, when he lets machinery already out of condition.

Under Contractor.-The mine owner is not in general liable for accidents occurring under a contractor. -Lendberg v. Brotherton Co. 42 N. W. 675; Welsh v. Lehigh Co. 5 Atl. 48.

Contributory Negligence Co-Employee. The mine owner, as a general rule, is not liable when the accident was in whole or in part attributable to the negligence of the party injured or to the carelessness of a fellow workman not occupying a directing or superior position to the party injured.-Kevern v. Prov. Co. 70 Cal. 392; Ardesco Co. v. Gilson, 10 M. R. 669; Berea Co. v. Kraft, Id. 16; Trihay v. Brooklyn Co. 11 Pac. 612; Colo. Midland Ry. v. O'Brien, 16 Colo. 220. It is not

necessarily contributory negligence to use fire for comfort when dynamite is being thawed.—Bertha Co. v. Martin, 22 S. E. 869.

Remaining in Employ After Danger Known is held in instances to be a defense. It is sometimes classed as contributory negligence, though this is a mere abuse of terms: it is only acquiescence, perhaps from moral necessity, in the negligence of the master, perhaps criminal in degree.-Lord v. Pueblo Co. 12 Colo. 390; Davis v. Graham, 2 Colo. App. 210. It is hard for the reasoning powers of man to conclude that this does not amount to a premium on negligence.

If the master promise to repair, the workman may rely on the promise and remain.-Rogers v. Leyden, 26 N. E. 210.

Negligence of fellow servant is no defense if the master knew of the danger.-Hancock v. Keene, 32 N. E. 329.

REPLEVIN.

Ore Taken Under Claim of Title.-Where a party is in possession of a mine under a bona fide claim of title, the party out of possession cannot maintain replevin, or an action under the code in the nature of replevin, for the ore taken from the same; because the trial of the right of property in the ore in such case would necessarily involve the trial of the title to real estate. Brown v. Caldwell, 12 M. R. 674; Mather v. Trinity Church, 14 M. R. 472; Harlan v. Harlan, 15 Pa. St. 507; Anderson v. Hapler, 34 Ill. 436; Page v. Fowler, 28 Cal. 605; Smith v. Idaho Q. M. Co. 11 Pac. 878.

The same rule applies in trover.-National Co. v. Weston, 15 Atl. 569; Giffin v. Pipe Lines, 33 Atl. 578.

In a case of replevin for ore in Montana which brought up the question of apex rights, the Court took

the novel position that it involved no dispute as to title and was only a matter of boundaries.-Driscoll v. Dunwoody, 16 Pac. 726.

Defendant cannot re-replevin ore.-Morris v. DeWitt, 12 M. R. 680.

INJUNCTION.

At some stage of its progress a contest over a working mine is almost sure to suggest this sort of relief. It is true that the prayer for an injunction is always to a certain extent addressed to the discretion of the Court, but the exercise of this discretion does not imply the total absence of principles applicable to this class of cases.

The Ground for the Application of Injunctive Relief is that the Property may be Preserved pending litigation for the ultimate use of the rightful owner and may not in the meanwhile be destroyed by a trespasser. But the pendency of litigation is not of itself sufficient; the complainant must go farther and show that his case is based upon substantial facts, and that there is a probability of a decision in his favor when the cause is tried on its merits. As he asks relief in advance of the trial, it is only just that he make it appear that the trial when had will show that he was in fact entitled to this protection; and especially so when a decree of this sort, wrongfully issued, may be and often is as great an injury to the defendant as the conversion of some of the ore is to a rightful complainant.-Capner v. Flemington Co. 7 M. Ř. 263; Clavering v. Clavering, 14 M. R. 358; Irwin v. Davidson, 7 M. R. 237.

Parties.-One who has a contract to sink an oil well entered into before the suit, is not bound by an injunc