congress, enabling the holder to "cover" unappropriated public lands, surrendering such scrip in payment for the lands sought to be entered. The term "scrip" is frequently used in connection with forest lieu lands, but no scrip is in fact issued in lieu of land contained in forest reserves.1 The subject of forest lieu selections has already been discussed.2 Mineral lands cannot be so selected or covered with any class of scrip.3

Selections of land for the purpose of utilizing scrip are, of course, under the supervision of the land department, whose jurisdiction over the land is retained until the selection is finally approved, a certificate to that effect issued, and the scrip surrendered. As in case of other entries, the land department passes upon the character of the land applied for. A scrip entry, whether void or valid, segregates the land from the public domain and appropriates it to private use, so that no legal entry of it can be made by any one so long as such scrip entry remains uncanceled on the tract-books.* But this does not necessarily inhibit a mining location from being made on the land if such land was in fact at the time of the scrip entry mineral in character, if such location is made peaceably and in good faith. Upon cancellation of the entry and clearing the tract-books the mineral claimant could proceed to patent. The mining location would give the locator the status of a claimant such as would enable him to apply for a cancellation of the scrip entry.

1 Opinion Attorney-General, 28 L. D. 472.

See, ante, § 200.

'In re A. V. Weise, 2 Copp's L. O. 130; In re Nerce Valle, Id. 178; Commissioner's Letter, 3 Copp's L. O. 83.

James v. Germania Iron Co., 107 Fed. 596.

212. Desert lands. By the act of March 3, 1877,' supplemented by the act of March 3, 1891,2 provision is made for the reclamation of desert lands, and the transmission of the title in quantities not exceeding six hundred and forty acres. Mineral lands cannot be acquired under this act. Desert land claimants will rarely come in conflict with mining claimants. Of course, beds of gypsum, borax, nitrate, and carbonate of soda are found in the desert regions, but their mineral character is generally so obvious that no controversy is likely to arise. It would be much cheaper and more expeditious for a claimant to enter these classes of lands under the placer laws than to attempt to acquire title under the onerous provisions of the desert land laws. Should such conflicts arise, they would be governed by the same general rules of law applicable to other classes of entries discussed in the preceding sections of this article.

ARTICLE X. OCCUPANCY WITHOUT COLOR OF TITLE.

§ 216. Naked occupancy of the § 218. Appropriation of public

public mineral lands con

fers no title-Rights of

such occupant.

217. Rights upon the public do

main cannot be initiated

by forcible entry upon
the actual possession of

another.

mineral lands by peaceable entry in good faith upon the possession of a occupant without color of title.

mere

§ 219. Conclusions.

216. Naked occupancy of the public mineral lands confers no title-Rights of such occupant.-Title to mineral lands of the public domain can be initiated and acquired only under the mining laws. As was said by the supreme court of the United States,

3

119 Stats. at Large, p. 377; 26 Stats. at Large, p. 1095.

26 Stats. at Large, p. 1095.

3 Burns v. Clark, 133 Cal. 634, 85 Am. St. Rep. 233, 66 Pac. 12.

"No title from the United States to land known at "the time of sale to be valuable for its minerals of gold, "silver, cinnabar, or copper can be obtained under the pre-emption, homestead, or townsite laws, or in any "other way than as prescribed by the laws specially "authorizing the sale of such lands."'1

There can be no strictly lawful possession of such lands, unless that possession is referable to the mining laws.

"There can be no color of title in an occupant who "does not hold under any instrument, proceeding, or "law purporting to transfer to him the title, or to give "to him the right of possession. And there can be no "such thing as good faith in an adverse holding, where "the party knows that he has no title, and that under "the law, which he is presumed to know, he can acquire none by his occupation.'

3

As heretofore shown, it is a general rule that mere occupancy of the public lands and placing improvements thereon give no vested right therein as against the United States, or one connecting himself with the government, by compliance with the law.*

'Deffeback v. Hawke, 115 U. S. 392, 404, 6 Sup. Ct. Rep. 95; Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628; Walker v. Southern Pac. R. R. Co., 24 L. D. 172; Coleman v. McKenzie, 28 L. D. 348, 352, S. C. on review, 29 L. D. 359.

3

Deffeback v. Hawke, 115 U. S. 392, 404, Sup. Ct. Rep. 95.

See, cntc, & 170.

4 Sparks v. Fierce, 115 U. S. 408, 6 Sup. Ct. Rep. 102; Frisbie v. Whitney, 9 Wall. 187; Hutchins v. Low, 15 Wall. 77; Campbell v. Wade, 132 U. S. 34, 10 Sup. Ct. Rep. 9; Jourdan v. Barrett, 4 How. 169; Burgess v. Gray, 16 How. 48; Gibson v. Chouteau, 13 Wall. 92; Oaksmith v. Johnston, 92 U. S. 343; Morrow v. Whitney, 95 U. S. 551; Buxton v. Travers, 130 U. S. 232, 9 Sup. Ct. Rep. 509; Northern Pac. R. R. Co. v. Colburn, 164 U. S. 383, 17 Sup. Ct. Rep. 98; Northern Pac. Ry. Co. v. Smith, 171 U. S. 260, 18 Sup. Ct. Rep. 794; Olive Land and D. Co. v. Olmstead, 103 Fed. 568; Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, 46, S. C. on appeal, 112 Fed. 4; United States v. Holmes, 105 Fed. 41. Judge Hawley held that a prior occupant of public land for business Lindley on M.-24

While this is true, the occupant has certain rights based upon the fact of actual possession, which, from motives of public policy, are accorded to him.

As was said by the supreme court of California,—

"As against a mere trespasser, one in possession of a "portion of the public land will be presumed to be the "owner, notwithstanding the circumstance that the "court has judicial notice that he is not the owner, but "that the government is. This rule has been main"tained from motives of public policy, and to secure "the quiet enjoyment of possessions which are intru"sions upon the United States alone."1

This is nothing more than a reiteration of the familiar rule, that, as against a mere intruder, or one claiming no higher or better right than the occupant, possession is prima facie evidence of title.2

But this is all that can be claimed. As against one connecting himself with the government, this occupancy must yield to the higher right.3

In Crossman v. Pendery, Justice Miller said:

"A prospector on the public mineral domain may protect himself in the possession of his pedis posses"sionis while he is searching for mineral. His posses"sion so held is good as a possessory title against all the

purposes could not be deprived of the same by a mineral claimant, unless the land was known to be mineral before the townsite claimant acquired or purchased his lot. (Bonner v. Meikle, 82 Fed. 697. See, also, Tarpey v. Madsen, 178 U. S. 215, 220, 20 Sup. Ct. Rep. 849.)

1

Brandt v. Wheaton, 52 Cal. 430; Wilson v. Triumph Consol. M. Co. 19 Utah, 66, 75 Am. St. Rep. 718, 56 Pac. 300; Ramus v. Humphreys (Cal.), 65 Pac. 875.

Campbell v. Rankin, 99 U. S. 261; Atwood v. Fricot, 17 Cal. 38, 16 Am. Dec. 567; English v. Johnson, 17 Cal. 108, 76 Am. Dec. 574; Hess v. Winder, 30 Cal. 349; Tarpey v. Madsen, 178 U. S. 215, 220, 20 Sup. Ct. Rep. 849; Kirk v. Meldrum (Colo.), 65 Pac. 633.

Wilson v. Triumph Consol. M. Co., 19 Utah 66, 75 Am. St. Rep. 718, 56 Pac. 300.

8 Fed. 693.

"world, except the government of the United States. "But if he stands by and allows others to enter upon his "claim and first discover mineral in rock in place, the "law gives such first discoverer a title to the mineral so "first discovered, against which the mere possession of "the surface cannot prevail."

In the case of Cosmos Exploration Co. v. Gray Eagle Oil Co.,1 the court held that lands which were actually occupied and which were being explored for mineral were not subject to selection in lieu of lands surrendered under the forest reserve act of June 4, 1897. That act permitted only such lands to be selected as were vacant and open to settlement. The court recognizes the general rule that a mere occupant acquires no right against one who is authorized to acquire the government title, but in this case held that the forest lieu claimant was not authorized to acquire the government title to occupied land.2

? 217. Rights upon the public domain can not be initiated by forcible entry upon the actual possession of another. To what extent actual possession of any portion of the public mineral lands prevents their valid appropriation under the mining laws depends upon the facts and circumstances of each particular case. There are certain recognized principles, however, which are necessarily involved in all such cases, the application of which will, generally speaking, result in their proper solution.

It is a doctrine well established that no rights upon the public domain can be initiated by a forcible entry upon the possession of another. A forcible and tortious invasion of such possession confers no privilege upon the invader, and cannot be made the basis of a posses

1112 Fed. 4.

See, also, Kern Oil Co. v. Clarke, 30 L. D. 550.