Lindley, in reviewing the character of this estate, says (Lindley on Mines, 3d ed., §539):

Prior to the issuance of a patent the locator can not be said to own the fee simple title. The fee resides in the general government, whose tribunals, specially charged with the ultimate conveyance of the title, must pass upon the qualifications of the locator and his compliance with the law. Yet, as between the locator and every one else save the paramount proprietor the estate acquired by a perfected mining location possesses all the attributes of a title in fee, and so long as the requirements of the law with reference to continued development are satisfied, the character of the tenure remains that of a fee. As between the locator and the Government, the former is the owner of the beneficial estate, and the latter holds the fee in trust, to be conveyed to such beneficial owner upon his application in that behalf and in compliance with the terms prescribed by the paramount proprietor.1

OCCUPANCY PERIOD.

It should be borne clearly in mind and can not be too strongly emphasized that the character of right and title just noted exists only after location and that no location can be made unless founded upon discovery. Until he has made discovery no amount of development work and no compliance with other Federal, State, or local requirements will confer upon the claimant an equitable estate as against the Government or a tenure in the nature of a fee against others. As against the Government, the mineral claimant who has made no discovery has in fact no estate either legal or equitable. Neither has any vestige of title against strangers so far as the Federal statutes are concerned. Congress has, however, accorded to him whatever protection there is in the law of possession, the act of February 27, 1865 (13 Stat., 441), having been brought into the Revised Statutes as follows (R. S., 910):

he

No possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States; but each case shall be adjudged by the law of possession.

Under this statute the mineral occupant has been granted some measure of protection, none too clearly defined, by the courts, and the measure of this protection is a matter of great concern to the prospector for deep-seated deposits. How far will the courts safeguard his occupancy and possession prior to discovery?

One of the leading cases upon the rights of a mineral occupant against an agricultural claimant is Cosmos Exploration Co. v. Gray Eagle Oil Co. (112 Fed., 4). In this case, which was affirmed by the Supreme Court of the United States, although this question of occupants' rights was not specifically mentioned (190 U. S., 310), it is

1 Noyes v. Mantle, 127 U. S., 348, 351, 8 Sup. Ct. Rep., 1132, 32 L. ed., 168; Dahl v. Raunheim, 132 U. S., 260, 262, 10 Sup. Ct. Rep., 74, 33 L. ed., 325, 16 Morr. Min. Rep., 214; Gillis v. Downey, 85 Fed., 483, 487, 29 C. C. A., 286.

stated that the defendants had made "pretended placer mining locations" upon the land in controversy but had made no discovery, that thereafter complainant selected this land in lieu of certain lands in the national forest under the act of June 4, 1897 (30 Stat., 11, 36), which provides for the selection of "vacant land open to settlement,' and that subsequently defendants discovered oil in paying quantities. The circuit court of appeals of the ninth circuit held (syllabus):

Land was not "vacant and open to settlement" and subject to selection under such act where at the time of the application it was in the actual occupancy of others engaged in exploring it for oil, under oil placer mining locations previously made by them, although such locations did not appear by the records of the local land office, and although they were not valid as against the United States, because there had been no previous discovery of oil on the land, where the locators prosecuted the work of exploration with due diligence, and with the result of discovering oil in paying quantities before the selection by the applicant under the forest reserve act had been approved by the land department. Until by such approval an applicant is vested with the equitable title to the land, it remains subject to exploration for minerals under the mining laws; and while lawfully occupied by one engaged in making such exploration it is not "vacant" within the meaning of the act, nor is it open to settlement where, as the result of such exploration, its mineral character is established, while the title, both legal and equitable, remains in the United States.

It should, however, be noted that while under this decision the prospector proceeding in good faith to explore for minerals is protected against adverse agricultural claimants, there is nothing of record in the Land Office to show that the land which he occupies is not "vacant and open to settlement," and such agricultural filings are likely to be made at any time, subjecting him to the expense of maintaining contest proceedings before the Land Department or the courts. It is also important to note that oil was discovered before the agricultural selection had been approved, and that when the agricultural selection was made the mineral claimants were in diligent prosecution of work leading to discovery.

That in default of diligent and continuous exploratory work there is no protection against agricultural filing is shown by the decisions in McLemore v. Express Oil Co. (112 Pac., 59) and Hirshfeld v. Chrisman (40 L. D., 112). The salient points of the former case are quoted below. In the latter case the Department held:

Such mere paper locations, upon which no discovery of oil has been made and upon which the mineral claimants are not prosecuting with diligence the work for making a discovery of oil, do not prevent appropriation by soldiers' additional homestead these lands were unappropriated, public lands * entry.

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That a measure of protection is afforded against adverse claimants, mineral or agricultural, who attempt by forcible, fraudulent, or surreptitious means to violate the possession of a mineral occupant proceeding diligently and in good faith to make discovery is held in McLemore v. Express Oil Co. (112 Pac., 59), already quoted, in

which the Supreme Court of California also outlines the necessity for such protection:

As has been said, in the case of other minerals discovery preceded the demarkation of the boundaries, the posting and recording of the notice. In the case of oil, discovery, in the very nature of things, would rarely or never be made except at the end of much time and after the expenditure of much money, the discovery of oil involving the erection of a derrick and the laborious drilling of a well, frequently to the depth of 3,000 feet and more. If, therefore, the placer mining laws, which were declared by Congress to be the only laws under which oil locations could be established, were to be made of any practical benefit to the oil locator, it must be by permitting him to mark the boundaries of his location and post and record his notice, and protect him in possession while he was with diligence prosecuting the labor of digging his well to determine whether or not a discovery could be made. So it was held by the Federal courts, by the courts of some of the other States, and by this court in Miller v. Chrisman, 140 Cal., 447, 73 Pac., 1084, 74 Pac., 444, 98 Am. St. Rep., 63, to the following effect: "One who thus in good faith makes his location, remains in possession and with due diligence prosecutes his work toward a discovery, is fully protected against all forms of forcible, fraudulent, surreptitious, or clandestine entries and intrusions upon his possession. Such entry must be always peaceable, open and above board, and made in good faith, or no right can be founded upon it." Weed v. Snook, 144 Cal., 439, 77 Pac., 1023; Cosmos etc., Co. v. Gray Eagle Oil Co. (C. C.) 104 Fed., 20; Id., 112 Fed., 4, 50 C. C. A., 79, 61 L. R. A., 230; Id., 190 U. S., 301, 23 Sup. Ct., 692, 47 L. Ed., 1064; Whiting v. Straup, 17 Wyo., 1, 95 Pac., 849, 129 Am. St. Rep., 1093; Moffat v. Blue River, etc., Co., 33 Colo., 142, 80 Pac., 139. But it is always to be borne in mind that, until the perfection of the inchoate and incomplete location by discovery, the locator has, first, no vested rights which Congress is obliged to recognize. So that Congress may change its policy in regard to the lands to the extent even of excluding therefrom the diligent operator who has not made discovery. However inequitable such a proceeding might be, it in no way would be illegal.

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What the attempting locator has is the right to continue in possession, undisturbed by any form of hostile or clandestine entry, while he is diligently prosecuting his work to a discovery.

Miller v. Chrisman (73 Pac., 1083) is a leading case of such importance that an extract more ample than that included in the decision just quoted is here given:

It is to be remembered that it is not essential to the validity of a location that the discovery shall have preceded or shall coexist with the posting of the notice and the demarkation of boundaries. The discovery may be made subsequently, and when made operates to perfect the location against all the world, saving those whose bona fide rights have intervened. One who thus in good faith makes his location, remains in possession, and with due diligence prosecutes his work toward a discovery, is fully protected against all forms of forcible, fraudulent, surreptitious, or clandestine entries and intrusions upon his possession. Such entry must always be peaceable, open, and above board, and made in good faith, or no right can be founded upon it. Belk v. Meagher, 104 U. S., 279, 26 L. Ed., 735; Atherton v. Fowler, 96 U. S., 513, 24 L. Ed. 732; Nevada Sierra Oil Co. v. Home Oil Co., It further appears that certain valuable rights become the property of such locators even before discovery. They have the right of possession against all intruders (Garthe v. Hart, 73 Cal., 541, 15 Pac., 93), and they may defend this possession in the courts (Richardson v. McNulty, 24 Cal., 339). They have then this right of posses

supra.

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sion, and with it the right to protect their possession against all intrusions, and to work the land for the valuable minerals it is thought to contain. We can not perceive why these rights may not in good faith be made the subject of conveyance by the associates as well before as after discovery.

The same court discusses the matter at some length in Borgwardt v. McKittrick Oil Co. (130 Pac., 417):

The rights of the person or persons endeavoring to locate an oil claim, after the posting of notice, etc., are well settled by the decisions. Until the inchoate location is perfected by discovery, the locator has no vested right which Congress is obliged to recognize. But where his location is made in good faith, he has the right, as against third persons, which is transferable, "to be protected against all forms of forcible, fraudulent, surreptitious, or clandestine entries and intrusions upon his possession,” so long as he "remains in possession and with due diligence prosecutes his work toward a discovery." Miller v. Chrisman, 140 Cal., 440, 447, 73 Pac., 1084, 98 Am. St. Rep., 63; Weed v. Snook, 144 Cal., 439, 77 Pac., 1023. As long as such a condition continues, no one, without his consent, can make the actual entry of the land essential to legally initiate a new location. But actual possession of the land, coupled with continued diligent prosecution of discovery work, are essential to his protection. "What the attempting locator has is the right to continue in possession, undisturbed by any form of hostile or clandestine entry, while he is diligently prosecuting his work to a discovery." McLemore v. Express Oil Co., 158 Cal., 559, 112 Pac., 59, 139 Am. St. Rep., 147. "Where the alleged locator has not made a discovery, and has not retained possession for the purpose of prosecuting work looking to a discovery, his mere posting of notice and marking of boundaries upon the ground will not serve to exclude others who may peaceably enter upon the land which he is not actually working or occupying." New England, etc., Oil Co. v. Congdon, 152 Cal., 211, 214, 92 Pac., 180, 181.

The requirement of diligent prosecution of the work was described in McLemore v. Express Oil Co., supra, as follows: "This diligent prosecution of the work of discovery does not mean the doing of assessment work. It does not mean the pursuit of capital to prosecute the work. It does not mean any attempted holding, by cabin, lumber pile, or unused derrick. It means the diligent, continuous prosecution of the work, with the expenditure of whatever money may be necessary to the end in view." It is only one so actually possessed and so engaged in the diligent prosecution of the work of discovery who is thus protected, by reason of his attempted location, against an entry by another.

In a still more recent case (Smith v. Union Oil Co., 135 Pac., 966) the same court says:

If a qualified person peaceably enters upon public lands of the United States for the purpose of discovering oil or other valuable mineral deposits therein, and such land is at the time unoccupied, and there is at the time no valid mineral location or lawful entry thereon, under the land laws of the United States, such person has the right to continue in possession so long as he continues to occupy the same to the exclusion of others, and diligently and in good faith prosecutes thereon the work of endeavoring to discover such mineral therein.

The circuit court of appeals for the ninth circuit, in Rooney v. Barnette (200 Fed., 700), goes still further, saying:

The location of mineral ground gives to the locator before discovery, and while he complies with the statutes of the United States and the state and local rules and

regulations, the valuable right of possession against all intruders, and this right he can convey to another.

This affirmation of a right of possession as against all intruders, however, is predicated upon a quotation from Swanson v. Kettler (105 Pac., 1059), in which there had been a discovery.

Although from these decisions it appears that a mineral claimant prior to discovery may not be ousted from his possession by force or fraud, so long as he is diligently engaged in the prosecution of work leading to discovery, it has been held repeatedly that his possession is not good against that of an adverse claimant who enters upon the land in good faith and in compliance with the law and proceeds to make a discovery. The quotations from Miller v. Chrisman given above confirm this by implication and cite among others the case of Garthe v. Hart (73 Cal., 541). In this case the court below had instructed the jury as follows:

As I said, there is still another way by which a miner in this State may acquire a right to the possession of a piece of mining ground. It is by taking possession of it and clearly defining the boundaries so that they may be readily traced, and holding such possession, keeping such possession.

The appellate court reversed the lower court on this and other grounds, saying:

In the hurry of the trial, the learned judge evidently overlooked the distinction between the right of a party in possession as against mere intruders, and his right as against one who has complied with the mining laws. Possession is good against mere intruders (Attwood v. Fricot, 17 Cal., 37; S. C., 76 Am. Dec., 567; English v. Johnson, 17 Cal., 115; S. C., 76 Am. Dec., 574; Hess v. Winder, 30 Cal., 355; Golden Fleece Co. v. Cable Con. Co., 12 Nev., 321, 322); but it is not good as against one who has complied with the mining laws. (Du Prat v. James, 65 Cal., 556, 557.)

In Miller v. Chrisman, supra, the Supreme Court also cited the leading case of Belk v. Meagher (104 U. S., 279). In this case, which is not as clear or simple as might be wished, the facts were stated to be as follows (syllabus):

A entered December 19, 1876, upon a claim not then in the actual possession of any one, but covered by a valid and subsisting location which did not expire until the 1st day of January thereafter. Between the date of his entry and February 21, 1877, he made no improvements or inclosure, and did a very small amount of work, but had no other title than such as arose from his attempted location of the claim and his occasional labor upon it. On the last-mentioned date B entered upon the property peaceably and in good faith, and did all that was required to protect his right to the exclusive possession thereof. A brought ejectment October 25, 1877. Held, that A's entry and labor did not entitle him to a patent under sec. 2332, Rev. Stat., nor prevent B's acquisition of title to the claim * * *.

The court, through Mr. Chief Justice Waite, said:

No one contends that the defendants effected their entry and secured their relocation by force. They knew what Belk had done and what he was doing. He had no right to the possession, and was only on the land at intervals. There was no inclosure,