
    [No. 4522.]
    The Clear Creek Leasing, Mining and Milling Company v. The Comstock Gold-Silver Mining and Milling Company et al.
    Appellate Practice — Jurisdiction of Supreme Court — Freehold— Mining Lease.
    An action by the assignee of a lease with option to purchase a mine, against the lessor to restrain him from declaring the lease forfeited, and from entering and taking possession of the mine, did not involve a freehold so as to give the supreme court jurisdiction to review the judgment therein.
    
      Appeal from the District Court of Clear Creek County.
    
    Messrs. Morrison & DeSoto, for appellant.
   Mr. Justice Steele

delivered the opinion of the court.

In May, 1898, The Comstock Gold-Silver Mining and Milling Company leased certain property situated in the Idaho Mining District to Edward C. Eddie. Eddie, with the consent of the lessor, assigned the lease to The Clear Creek Leasing, Mining and Milling Company. During the month of November following, notice in writing was served upon the manager of the leasing company by the lessor, reciting that the lease, because of the failure of the company to comply with its terms, had been forfeited, and demanding the possession of the premises. Subsequently suit was brought by the assignee of the lease for the purpose of enjoining the lessor from taking possession of the leased premises, and from in any manner interfering with the possession of the assignee of the lease or the working of the mine. It was stipulated at the trial that the issue to be tried was: “Had the plaintiff company forfeited its lease on the Com-stock property on the 21st of November, 1898, the day of the entry on the premises by the defendant company?” The trial resulted in a judgment for the defendant, from which judgment the plaintiff prayed an appeal to the court of appeals. Upon motion the case was transferred to this court.

By the agreements of the lease the lessee is given an option to purchase the property at any time during the term of the lease. The lease also contains the usual condition that upon failure of the lessee to keep and fulfill the covenants and agreements of the lease it may be forfeited by the lessor. Upon the determination of the issue contained in the stipulation in favor of the defendant, no money judgment in excess of twenty-five hundred dollars was rendered, nor did the judgment determine the title to a freehold; and as no constitutional question is involved, it follows that this court has no jurisdiction, and the cause is remanded to the court of appeals.

Remanded.  