Mr. Justice G-abbert
delivered the opinion of the court.
The instruction requested on behalf of defendants, and refused, was to the effect that the discovery of mineral at any point other than in the discovery shaft will not avail or validate a location. According to the undisputed facts, the point of discovery and the discovery shaft upon each claim are one and the same, so that the important question (independent of the disclosure of a vein in the discovery shaft) which defendants raised by the instruction refused, is, must a location of a lode mining claim be based upon a specific vein? In the opinion of the majority of the court, they are precluded, from having this question considered and deter*107mined, for the reason that under the instructions given at their request, the jury was, in effect, directed that the discovery of mineral within the boundaries of the Last Batch at any point would render the location of that claim valid, if made prior to a discovery upon the Ganestota. If, in effect, the instructions given at the request of defendants are susceptible of this construction, then, unquestionably, they are precluded from having the question sought to be raised by the instruction requested and refused, determined, for the obvious reason that if instructions given at their request do not state the law correctly, they cannot complain of the • refusal of the court to give an instruction which, though correct, is inconsistent with those given; or, in other words, states the law differently on a given point from those given at their instance. With the conclusion of the majority that the instructions given at the request of counsel for defendants state, in effect, that a discovery of mineral at any point within the boundaries of the Last Batch could be considered as a discovery which might validate that claim, the writer does not agree. The instructions as given, and which appear in the statement must be read and construed as a whole. From these it appears, in the judgment of the writer, that the jury was directed, in effect, that a discovery shaft must be simk upon the vein; that a notice must be posted at the point of discovery; that it must appear from the evidence that a valid discovery of a vein was made within the exterior boundaries of .the Last Batch, as required by law.. (From which it must be understood that a vein was disclosed in the discovery shaft), and that in order to entitle the defendants to recover, it must appear that the finding of mineral within the limits of their claim in the manner defined in the instructions — i. e., upon the vein which they claim to have located, and at the ■ point designated “discovery,” must ante-date the finding of mineral in the Ganestota. As an additional reason why this construe*108tion should be giyen these instructions, it must be borne in mind that the defendants made no claim that mineral was discovered at any point on the Last Batch except in the discovery shaft. The conclusion of the majority precludes a consideration of the action of the trial court, in refusing to give the instruction requested.
The fact that the Price shaft was only partially within the boundaries of the Canestota is immaterial. The simple question, so far as that location is concerned, was, whether mineral had been discovered in that shaft, within the boundaries of the Canestota. If so, and it ante-dated a discovery of mineral in place on the Last Batch, then, under the theory upon which the cause was submitted to the jury, it validated the Canestota. As this was a theory which, in the opinion of the majority of the court, appears to have been adopted at the instance of counsel for defendants, whether or not it is correct we do not pretend to pass upon, and the conclusion that the discovery of mineral in the Price shaft might validate the Canestota location, if made before mineral was discovered on the Last Batch is reached, for the reason that the instructions of the court that it would, are in harmony with those given at the instance of defendants in this respect.
In the opinion of the majority of the court, the evidence of the witness Anderson was admissible. Plaintiff claimed that the shaft of the Last Batch had been “salted,” and therefore, any evidence tending to establish this claim was competent. Whether or not the parties who visited this shaft at the time mentioned by Anderson did so at the instance of the defendants, was a matter for the jury to determine, especially in view of the fact that Anderson pointed out at least one of them in the court room, and the defendants did not place him upon the stand for the purpose of either contradicting the witness Anderson, or showing at whose instance, or for what purpose, they visited the shaft. *109Neither did they attempt to show that these parties did not visit the premises at their request. The writer does not believe that this evidence should have been admitted. The fact that the defendants did not see ñt to attempt to show that these parties did not visit the shaft, or do the acts as detailed by Anderson, at their request, or did not call the witness pointed out by him in the court room, are not matters which should be taken into consideration in determining the admissibility of this testimony. Their failure to contradict it, or explain it in any way, does not affect their right to object to that which is immaterial and incompetent. There was no evidence whatever, tending to show that these parties who visited the Last Batch shaft did so at the instance of the defendants, or were in any manner connected with them, or interested in the subject matter of the controversy. In the absence of such testimony, the statement of Anderson tended to cast suspicion upon the defendants, that they were guilty of “salting” the shaft of the Last Batch, by the suspicious action of parties with whom they had no connection, and who, so far as disclosed by the record, may have visited the property at the instance of the plaintiffs. This testimony, in the opinion of the writer, should have been excluded.
The evidence regarding the assay of a sample of ore claimed to have been-taken from the dump of the Last Batch should have been admitted. Whether or not, as a matter of fact, such sample was originally taken from the shaft was a proper matter for argument before the jury, and for it to consider in determining what weight should be given to such evidence. Bor the error in excluding this evidence, the judgment is reversed, and the cause remanded for a new trial.
Reversed and Remanded,-