charges that prior to the sale he stated and represented to the board that the property was of no greater value than $12.00 per acre. It is said that the board, acting upon this representation, placed this as the minimum price, and proceeded to sell on that basis. Tynon succeeded in purchasing the property at this figure, while the value, according to the complaint, largely exceeded this sum and was not less than $25.00 per acre. Substantially this is what the complaint contains as matters of fact upon which to predicate the claim for relief for the fraud practiced in inducing the board to sell at an unfair price. What are called misrepresentations are simply statements of opinion as to the value of the property, considered generally with reference to its market price, and on which there might be wide differences of opinion. It is a matter about which the vendor has as full and ample knowledge and opportunity for information as are possessed by the vendee. They did not amount, taken with the most liberal intendment and broad significance, to anything approaching a warranty, and in no manner were brought within the scope of the well-settled law on this subject.

Without reference to the insufficiency of the averments of the bill, it sought no relief which a court of equity could properly grant. What the plaintiff asked was the cancellation of the patent and the various mesne conveyances executed by Tynon and his grantees. These transfers are said to have been voluntary, and without a valuable consideration. The state would be thus reinvested with the legal title, subject to the obligation, if any, arising from the antecedent sale to Tynon. In other words, the state does not seek to set aside the sale which they made, but simply attempts to obtain a cancel ancellation of the conveyance or patent, in order, apparently, to compel the board and Tynon to take such action as they believe is essential under the statute to protect the lessee in his improvements, and to secure to Baker their value. There was no allegation broad enough to warrant the court to set aside the sale, nor did the pleader ask that this be done. The sole object of the proceeding was to set aside the conveyance, leaving the sale to stand. Manifestly no such decree could be obtained without averments charging that the instrument in some one or more particulars failed to express the agreement and contract of the parties, or was too broad, or restricted, in the terms of its grant, or contained some covenant, or condition, which would operate inequitably, either against the grantor, or in favor of the grantee. The complaint is barren of any allegations of this description. Since the People did not seek to set aside the sale, and alleged nothing which warranted an attack upon the instrument, no judgment could be rendered in favor of the state.

The complaint stated no cause of action, and the judgment which sustained a demurrer to it was properly entered and must be affirmed.

Affirmed.

MCLAUGHLIN ET AL., APPELLANTS, v. THOMPSON,

2 135 8 547 4. SAME.

Reasonable diligence is always necessary to move a court of equity. The strongest equity may be forfeited by laches or abandoned by acquiescence.

Appeal from the District Court of Pitkin County.

THE facts are fully stated in the opinion of the court.

Messrs. WILSON & STIMSON, Mr. CLINTON REED, Mr. CHAS. S. THOMAS and Messrs. BRYANT & LEE, for the appellants.

No appearance for the appellee.

BISSELL, J., delivered the opinion of the court.

There is no appearance for the appellee. His cause is without equity; and he could not have successfully supported the decree, though judgment passed in his favor. In the latter part of November, 1880, Thompson and James McLaughlin started prospecting work on Smuggler mountain on a piece of ground which they named the Jay Gould. The agreement contemplated, although it was not thus directly specified, that they should prosecute the work until they could make a valid location. It will be well to note here two allegations in the complaint, one of which may be said to be supported by the proof, and the other to be wholly variant therefrom. The first is, that Thompson was to assist in doing the "discovery work" on the location. Just the extent to which the pleader intended to go by that averment is not very manifest. It is palpably true under the mining statutes that work properly within that description must be continued until there is uncovered a vein or deposit of mineral. It is not an unfair construction of the pleading to take the allegation as intended to be broad enough to embrace whatever under the mining statutes would be included in this term. Under this construction, then, the plaintiff averred that he and McLaughlin agreed to sink the discovery shaft to mineral and thereby make a valid location. This allegation seems to be fairly within the purview of Thompson's own testimony, and to be substantially supported by the evidence. There is another averment about which so much cannot be said. Generally it states that by the terms of the agreement McLaughlin was to do Thompson's share of the assessment work until he should dispose of his interest. This is totally unsupported by the testimony. It will be observed that this part of the alleged agreement does not necessarily exclude the idea that Thompson remained obligated to do his part of that discovery work which must precede a valid location. This much he is bound to do by the contract as he states it, and by the terms of it according to his own evidence. This is an important consideration, on the hypothesis which will be subsequently stated, that there was an absolute failure to acquire any title which McLaughlin was bound to protect, even under the agreement to do the annual labor, had that part of the contract been sustained by sufficient proof. The work was continued on the claim until about election time in November, when Thompson left Aspen and went to Leadville. At this time the discovery shaft had been sunk some distance in the wash, probably somewhere between 25 and 40 feet. At this time Thompson ceased to do work, or to contribute to the expense of it, and this situation gives rise to one of the controversies in the case. To overcome the very apparent legal difficulty respecting his title, he testified at the trial that the agreement between him and McLaughlin was, that McLaughlin should take up the work at the point which he had reached when the contract was made, and sink the shaft to mineral for a half interest in that very shadowy thing, a mining location without any discovery. Under the pleadings he was not entitled to make proof of any such agreement. He had not averred it and he should not have been allowed to prove it. There was no application made to amend the complaint to correspond with the proof, and the case stands with a decree entered upon testimony which could not have been legitimately offered under the pleadings. But the case in this aspect was not so supported by testimony as to entitle the plaintiff to a decree. It was directly disputed by the defendant McLaughlin, whose denial was supported by the whole conduct of the plaintiff. It is probably true that this court would be indisposed, in opposition to the finding of the court in regard to the facts, to disturb the decree because it was not in its judgment supported by the evidence. Since the cause must be reversed on other grounds, the error committed in rendering a decree upon evidence which contradicted the case as the plaintiff laid it, justifies the court in stating that in its judgment this part of the plaintiff's contention is entirely unsupported. But for this reluctance to disturb the findings of a trial court upon the evidence, the reversal would be put upon this naked proposition, viz.: That at the time Thompson quit work on the claim in November, 1880, there had been no discovery of mineral, and since he failed to continue the prosecution of his discovery work to mineral, or to contribute thereto, no subsequent discovery and valid location by the labor of his original partner, without contribution from him, or some agreement with regard to it, could enure to his benefit. It is a very common notion among prospectors in this country, that if they sink a shaft, which they call a discovery shaft, to a depth of more than ten feet, and put up their stakes, they acquire thereby some sort of an interest in the public domain, although within the limits of their shaft or cut, there may be no indications whatsoever of a vein or mineral deposit, and work has ceased. Whatever may be the comity in respect of this matter among miners and prospectors, as a matter of law such a location is absolutely worthless for any purpose. It is equally true that if two men enter into a prospecting agreement which provides for their joint prosecution of the labor, in law this agreement will be taken to include the continuance of the work until a valid location is made on a legal discovery. Should one of the prospectors quit the work, and the other one continue until he finds a vein, the reward is his, and in