limits as claimed were withdrawn and reserved from entry under any of the laws pertaining to the sale or other disposition of the public lands of the United States, and that the plaintiff, being in possession, had the right to retain it as against defendants who entered without right or title, and were therefore mere trespassers.

Public lands belonging to the United States, for whose sale or other disposition Congress has made provision by its general laws, are to be regarded as legally open for entry and sale under such laws, unless some particular lands have been withdrawn from sale by congressional authority or by an executive withdrawal under such authority, either expressed or implied. Wolsey v. Chapman, 101 U. S. 755, 769, 25 L. ed. 915, 920; Hewitt v. Schultz, 180 U. S. 139, 45 L. ed., 21 Sup. Ct. Rep. 309. We must, therefore, refer to the action of Congress to discover whether lands which in fact were public lands of the United States were reserved from sale or other disposition under its public laws because they were included within the claimed limits but in fact were not within the actual limits of a grant by the Spanish or Mexican authorities before the cession of the territory by Mexico to the United States by the treaty of Guadalupe Hidalgo of February 2, 1848. 9 Stat. at L. 922. The 8th and 9th articles of that treaty provide that the property of every kind belonging to Mexicans in the ceded territory should be respected by the government of the United States and their title recognized.

In 1854 (10 Stat. at L. 308, chap. 103) Congress established the office of surveyor general of the territory of New Mexico, and in the 8th section of that statute it was made the duty of that officer, under instructions from the Secretary of the Interior, to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico. He was to make a full report of all such claims as originated before the cession of the territory to the United States by the treaty above mentioned, with his decision as to the validity or invalidity of each. This report was to be laid before Congress for such action thereon as it might deem just and proper, "and until the final action of Congress on such claims, all lands covered thereby shall be reserved from sale or other disposal by the government, and shall not be subject to the donations granted by the previous provisions of this act."

The Cochiti grant came before the surveyor general pursuant to the provisions of the act of 1854, and therefore by the terms of that portion of § 8, just quoted, the lands were reserved from sale or other disposal by the government until final action by Congress thereon. Up to March 3, 1891, Congress had taken no action in regard to this grant and on that day it passed the act establishing the court of private land claims (26 Stat. at L. 854, chap. 539), and by its 15th section Congress in terms repealed the 8th section of the act of 1854, "and all acts amendatory or in extension thereof, or supplementary thereto, and all acts or parts of acts inconsistent with the 39-MINING LAW

provisions of this act." By this repeal, lands which were in fact public lands belonging to the United States, although within the claimed limits of a Mexican grant, became open to entry and sale under the laws of the United States, unless, as is the contention of plaintiff, such lands were reserved from entry and sale or other disposition by the United States, by reason of the provisions of the treaty with Mexico. We see nothing in the terms of that treaty, either in the 8th or 9th article, that could be construed as a withdrawal of lands which in fact were the public lands of the United States, although contained within the claimed limits of some Mexican grant made prior to the cession to the United States. The mere fact that lands were claimed under a Mexican grant, when such grant did not in truth cover them, would not by virtue of any language used in the treaty operate to reserve such lands from entry and sale. *

*

*

As we have already stated, there are no words in the treaty with Mexico expressly withdrawing from sale all lands within the claimed limits of a Mexican grant, and we do not think there is any language in the treaty which implies a reservation of that kind. Whatever reservation there is must be looked for in the statutes of the United States, and we are of opinion that there is no such reservation and has been none since the repeal of the 8th section of the act of 1854. * * *

Mineral lands are not supposed to have been granted under ordinary Mexican grants of lands, and the act of 1891 provides that minerals do not pass by such grants, unless the grant claimed to effect the donation or sale of such mines or minerals to the grantee, or unless such grantee became otherwise entitled thereto in law or in equity; the mines and minerals remaining the property of the United States, with the right of working the same, but no mine. was to be worked or any property confirmed under the act of 1891 without the consent of the owner of such property, until specially authorized thereto by an act of Congress thereafter to be passed. Section 13, subd. 3, act of 1891. This provision makes it still plainer that, so far as regards mineral lands, there was no intention after the passage of the act of 1891 that they should be reserved by a mere claim in a Mexican grant of ordinary land.

Nor does the claim that the Cochiti grant was sub judice at the time of the location of these lands affect their status as public lands belonging to the United States. They were not, in fact, within the limits of the grant.s * * *

Nor does the case of Newhall v. Sanger, 92 U. S. 761, 23 L. ed. 769, apply. In that case it was held that lands within the boundaries of an alleged Mexican or Spanish grant which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the railroad, were not embraced in the congres

On Mexican land grants, see Costigan, Mining Law, 63-64.

sional grant to the company. The decision went upon the ground that the legislation of Congress had been so shaped that no title could be initiated under the laws of the United States to lands covered by a Spanish or Mexican claim until it was barred by lapse of time or rejected. The act of March 3, 1851 (9 Stat. at L. 631, 633, chap. 41, § 13), which provides for the presentation of claims under Mexican grants in California to the commission established by the act, was referred to by the court, and it was held that by reason of its provisions the lands were not public lands under the laws of the United States until the claims thereto had been either barred by lapse of time or rejected. The 6th section of the act of 1853, March 3 (10 Stat. at L. 244, 246, chap. 145), was also referred to as expressly excepting all lands claimed under any foreign grant or title. There was no such legislation existing in regard to New Mexico at the time of the location of this mining claim, July, 1893. The lands were in fact, and have been since their cession to this country, public lands of the United States, although during the period between the passage of the act of 1854 and that of 1891 they were not open for sale or other disposition while the claims to such lands were undetermined.

Being public land and since 1891 open to location under the mining laws of the United States, it is further contended on the part of defendants that the location of the claim made by Pilkey on July 10, 1893, in behalf of himself and his two partners, Lockhart the plaintiff herein and Johnston, became forfeited by reason of noncompliance with the mining statutes of the United States and also the territory of New Mexico, and that while such failure to comply with the statutes continued, peaceable possession of the land was taken and a relocation made by the defendants, and whatever rights the plaintiff ever had under the first location were thereby cut off.

* **

It is undisputed that the requisite amount of work was not done by the first locator, nor is there any dispute that he left the mine, certainly early in October, 1893, and that there was no one in possession of the land on the 23d of October, 1893, when the abovenamed defendants entered upon the land, peaceably took possession thereof and made their location, and that in such location Pilkey [plaintiff's partner] did not join, and his name was absent from the notice, and he was not present when possession was taken by the other defendants. * * *

In the courts of the United States in an action of ejectment the strict legal title must prevail, and if the plaintiff have only equities they must be presented and considered on the equity side of the court. Foster v. Mora, 98 U. S. 425, 428, 25 L. ed. 191, 192; Johnson v. Christian, 128 U. S. 374, 382, 32 L. ed. 412, 414, 9 Sup. Ct. Rep. 87. The law of New Mexico is to the same effect. N. M. Comp. Laws, § 3160, and following sections.

Whatever the rights of the plaintiff may be (and as to what they are we express no opinion), it is clear that on this record he cannot maintain an action of ejectment. If he have rights as a copartner or cotenant with Pilkey, and he claims that the acts of the latter inure to his benefit in any way, his rights under such circumstances can be enforced in equity. Turner v. Sawyer, 150 U. S. 578, 586, 37 L. ed. 1189, 1191, 14 Sup. Ct. Rep. 192.

In relation to mining, it has been held that the remedy in the case of a claim in the nature of that which the plaintiff herein sets up, is against the copartner or cotenant, by an action for a breach of his contract or to establish and enforce a trust in the claim as relocated against the parties relocating. Saunders v. Mackey, 5 Mont. 523, 6 Pac. 361; Doherty v. Morris, 11 Colo. 12, 16 Pac. 911.

In this case it will be seen that the relocation on behalf of some of the defendants did not contain Pilkey's name, and hence he never had any legal title under that location. He denies that he had any interest in the mine under the relocation, and asserts that it was not made in his interest or for his benefit. Although the plaintiff has no right to maintain this action, yet he ought not to be embarrassed by a judgment here from pursuing any other remedy against the defendants or either of them that he may be advised; and in order to avoid any complication of that nature which possibly might result from an absolute affirmance of the judgment of the supreme court of the territory, we modify the terms of that judgment by providing that it is entered without prejudice to the enforcement by other remedies, of the rights, if any, which the plaintiff may have against the parties defendant or either of them, and as so modified, such judgment is affirmed.o

Section 5.-Homestead Entries.

JAMESON ET AL. V. JAMES et al.

1909. SUPREME COURT OF CALIFORNIA. 155 Cal. 275, 100 Pac. 700.

ACTION by J. W. Jameson and another against Mary J. James and others. From a judgment dismissing the action, plaintiffs appeal. Affirmed.

SLOSS, J.-The demurrer of the defendant John P. Cuddeback to plaintiffs' amended complaint having been sustained, and plaintiffs having failed to further amend within the time allowed by the court, judgment of dismissal was entered. The plaintiffs appeal from the judgment.

'A trust was established in Lockhart v. Leeds, 195 U. S. 427, 49 L. ed. 263, 25 Sup. Ct. 76.

The amended complaint alleges that on March 31, 1899, the plaintiffs made a mineral location of 40 acres of land in Kern county. The land contained limestone in large quantities, and was far more valuable for said limestone than for any other purpose. Immediately after said location the plaintiffs entered into possession of the claim, and did, in each of the years 1900 and 1901, perform labor thereon and expend money in the improvement thereof, to an amount in excess of the sum required by law. Plaintiffs entered upon said claim in the year 1902 for the purpose of performing the labor and making the improvements required by law, but the defendants forbade and prevented said plaintiffs from performing any labor or making any improvements upon the property. Prior to May 30, 1900, the defendant Mary J. James had made an application to the United States to enter a quarter section of land including the plaintiffs' location, and on April 13, 1900, she made application to the register and receiver of the United States Land Office at Independence to make final proof and payment for said. land and to procure a patent therefor. Notice of the applicant's intention to make final proof and of the time when proof would be filed in support of her homestead entry was published by the register in a paper published at Kern City, more than 50 miles distant from the land; there being at the time a newspaper published at Mojave, Kern county, within 17 miles of the place where the land was situated. Plaintiffs had no notice of the application of Mary J. James to enter the land or to make final proof until after hearing had been had and patent issued. It is alleged that said Mary J. James appeared and made proof under her homestead. entry, and that patent was issued to her by the United States of date October 23, 1901. At the time that said proof was made, Mary J. James knew that the land contained limestone in large quantities, that said land was more valuable for the limestone than for any other purpose, that said land was claimed by plaintiffs under their location, and that limestone had been developed thereon under said claim. Notwithstanding these facts said Mary J. James, through herself and her witnesses, misrepresented to the officers of the land department the true character and condition of the land and fraudulently concealed the fact that said land was valuable for limestone and the fact that a mining location had been made on said land. These misrepresentations and concealments were fraudulently made for the purpose of obtaining the title to said land and a patent therefor as agricultural land, under the homestead laws of the United States. Plaintiffs allege that when Mary J. James made her original application and entry many years before the final proof, she was not residing on the premises, nor did she ever reside thereon, erect any improvements thereon, except a cabin of the value of $25, or cultivate or improve the land. At the time of making her final proof, however, she testified and represented to the register and receiver