¶1In the statement on motion for a new trial no objection is made to the findings that at the time of the alleged injuries the plaintiff was in the possession of the land described in his complaint, holding under a written contract for purchase from the Central Pacific Railroad Company, who held under grant and patent from the United States; and that the ditch dug and maintained by the defendants was injurious to the premises, and interfered with the free and full enjoyment thereof by the plaintiff.
¶2Upon these facts it would seem that the plaintiff was entitled to recover. But it is contended by the defendants that the land in controversy was “mineral land,” and so within the reservations of the Act of Congress of July 1st, 1862, and July 2d, 1864, by which public lands were granted to the railroad company, and within the exceptions and reservations of the patent, which, in'this respect, follows the terms of the granting Acts.
¶3It would be a sufficient answer to this objection to say, that the character of the land, as mineral or otherwise, was directly in issue in the case, and, upon evidence substantially conflicting, the Court found this issue in favor of the plaintiff. But upon an examination of the evidence we see no reason to doubt the correctness of the finding. The mere fact that portions of the land contained particles of gold, or veins of gold-bearing quartz rock, would not necessarily impress it with the character of mineral land within the meaning of the Acts referred to. It must at least be shown that the land contains metals in quantities sufficient to render it • available and valuable for mining purposes. Any narrower construction would operate to reserve from the uses of agriculture large tracts of land which are practically useless for any other purpose, and we cannot think this was the intention of Congress.
¶4*485The point that the ditch was constructed under an implied license from the plaintiff is not well taken. If the defendants wished to justify their entry upon this ground they should have pleaded the license.
¶5Judgment and order affirmed.