This was an action of ejectment. The law as to the principal question discussed by counsel in this case has already been determined by this court. To the extent that the Ellieth. lode in its onward course departed from the side lines of the patented location, the plaintiff was not entitled to recover. Wolfley et al. v. Lebanon Mining Company (ante, p. 112).

The condition of the record is such that we cannot review the finding of the court upon the evidence. The map testified to by the witness Sayr is not preserved in the record, although it appears to have been put in evidence. The “Johnson shaft,” the “Baxter barn, and the shaft near it,” “the shaft out of which the bottom fell,” and other localities mentioned in the testimony of the several witnesses, are not designated on any of the maps or plats preserved in the record ; nor can their situs on or off the respective mining locations be fixed from any thing in the evidence, except as a matter of conjecture. The entire testimony centers around these several localities, and they are left afloat. For this reason it is impossible to examine the evidence, or pass on the questions made respecting it with any certainty.

The judgment of the court below is

Affi/rmed.