sory title. A rightful seisin cannot flow from a wrongful disseisin.1

It has been distinctly held in cases arising under the former pre-emption laws that no right of possession could be established by settlement and improvement upon a tract of land conceded to be public where the preemption claimant forcibly intruded upon the actual possession of another who, having no other valid title than possession, had already settled upon, inclosed, and improved the tract; that such an intrusion was but a naked and unlawful trespass, and could not initiate a right of pre-emption,2

In conformity with this rule, it was wisely said by the late Judge Sawyer, in the ninth circuit, district of California, that the laws no more authorize a trespass upon the actual possession and occupation of another claiming a pre-emption right, for the purpose of locating and acquiring the title to a piece of mineral land, than to initiate an ordinary pre-emption right to a tract of agricultural land; that the law does not encourage or permit for any purpose unlawful intrusions and trespasses upon the actual occupation and possession of another. To permit a right to accrue or confer authority to thus initiate a title to the public land, would be to encourage strife, breaches of the peace, and violence of such character as to greatly disturb the public tranquillity.3

8 218 Appropriation of public mineral lands by peaceable entry in good faith upon the possession of a mere occupant without color of title.-Conceding that

1 Nevada Sierra Oil Co., v. Home Oil Co., 98 Fed. 673; Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 40, 46; S. C. on appeal, 112 Fed. 4; Thallmann v. Thomas, 111 Fed. 277.

'Atherton v. Fowler, 96 U. S. 513; Quinby v. Conlan, 104 U. S. 421; Hosmer v. Wallace, 97 U. S. 575; Justin v. Adams, 87 Fed. 377.

Cowell v. Lammers, 10 Saw. 246, 21 Fed. 200; Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 673; Thallmann v. Thomas, 111 Fed. 277.

the law is correctly stated in the three preceding sections, it is not to be understood that a mere occupant of the public mineral lands can by virtue of such occupancy prevent, under all circumstances, their appropriation for mining purposes. The law interdicts entries effected with force and violence for any purpose. But a mere intruder upon the public lands, a mere occupant, whose possession is not referable to some law or right conferred by virtue of an instrument giving color of title, can not by reason of such occupancy prevent a peaceable entry in good faith by one seeking to avail himself of the privilege vouchsafed by the mining laws.

The doctrine that by mere entry and possession a right may be acquired to the exclusive enjoyment of any given quantity of the public mineral lands, was condemned by the supreme court of California in its earliest decisions. If such doctrine could be maintained, said that court,

"It would be fraught with the most pernicious and "disastrous consequences. The appropriation of these "lands in large tracts for agricultural and grazing pur

poses, and the concentration of the mining interest in "the hands of a few persons, to the exclusion of the "mass of the people of the state, are some of the evils, "which would necessarily result from such a doc“trine.”'1

There is no grant from the government under the acts of congress regulating the disposal of mineral lands, unless there is a location according to law and the local rules and regulations. Such a location is a condition precedent to the grant. If a party enters into possession, marks his boundaries, and performs his work for the period equal to the statute of limitations, such possession may ripen into a title equivalent to a location.2

1 Smith v. Doe, 15 Cal. 101, 105; Gillan v. Hutchinson, 16 Cal. 154. See, post, § 688; Risch v. Wiseman (Or.), 59 Pac. 1111.

But mere possession for a shorter period, not based upon a valid location, would not prevent a valid location under the law. This doctrine is clearly established by the supreme court of the United States in Belk v. Meagher,2 affirming the decision of the supreme court of Montana. In that case Belk undertook to locate a mining claim. His entry was peaceable, and he did all that was necessary to perfect his rights, if the premises had been at the time open for that purpose. But at the time of such attempted appropriation the ground was covered by a prior, and, as the court found, a valid, subsisting location. Subsequently this prior subsisting location lapsed, and thereafter Meagher relocated the claim, his entry for that purpose being made peaceably and without force. Belk brought ejectment, and being unsuccessful in the territorial courts, took the case on writ of error to the supreme court of the United States.

It having been established that when Belk made his relocation, in December, 1876, the claim of the original locators was still subsisting and valid, and remained so until January 1, 1877, the supreme court considered three propositions of law as necessarily arising in the

case:

(1) Whether Belk's relocation was valid as against everybody but the original locators, his entry being peaceable and without force;

(2) Whether, if Belk's relocation was invalid when made, it became effectual in law on the 1st of January, 1877, when the original claims lapsed;

(3) Whether, even if the relocation of Belk was invalid, Meagher could, after the 1st of January, 1877, make a relocation which would give him, as against Belk,

Belk v. Meagher, 3 Mont. 65, 80.

104 U. S. 279, 284.

an exclusive right to the possession and enjoyment of the property, the entry for that purpose being made peaceably and without force.

All three propositions were resolved against Belk, the court holding that he had made no such location as prevented the lands from being in law vacant, and that others had the right to enter for the purpose of taking them up, if it could be done peaceably and without force. His possession might have been such as would have enabled him to bring an action of trespass against one who entered without any color of right, but it was not enough to prevent an entry made peaceably and in good faith for the purpose of securing a right under the acts of congress to the exclusive possession and enjoyment of the property.

This doctrine was held not to be in conflict with the rule announced by the same court in Atherton v. Fowler,1 cited in a preceding section, wherein it was determined that a right of pre-emption could not be established by a forcible intrusion upon the possession of one who had already settled upon, improved, and inclosed the property.

The controlling force of the doctrine of Belk v. Meagher has been abundantly recognized by the courts since its promulgation.2

"Any other rule would make the wrongful occupation "of public land by a trespasser superior in right to a "lawful entry of it under the acts of congress by a competent locator." 3

196 U. S. 513.

'Noyes v. Black, 4 Mont. 527, 2 Pac. 769; Hopkins v. Noyes, 4 Mont. 550, 2 Pac. 280; Sweet v. Weber, 7 Colo. 443, 4 Pac. 752; Horswell v. Ruiz, 67 Cal. 111, 7 Pac. 197; Russell v. Hoyt, 4 Mont. 412, 2 Pac. 25; Du Prat v. James, 65 Cal. 555, 4 Pac. 562; Russell v. Brosseau, 65 Cal. 605, 4 Pac. 643; Garthe v. Hart, 73 Cal. 541, 15 Pac. 93; Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 673; Thallmann v. Thomas, 111 Fed. 277. "Thallmann v. Thomas, 111 Fed. 277.

A similar doctrine had been previously announced by Judge Deady, United States district judge, in Oregon,1 where a location of mining ground in the possession of Chinese was upheld, on the theory that this class of aliens could acquire no rights by location, purchase, or occupancy upon the mineral lands of the public domain. As was said by the supreme court of Montana,—

"Possession within a mining district, to be protected "or to give vitality to a title, must be in pursuance of "the law and the local rules and regulations. Possession, in order to be available, must be properly supported. . . . The mere naked possession of a mining "claim upon the public lands is not sufficient to hold "such claim against a subsequent location made in pur"suance of the law, and kept alive by a compliance "therewith."

The right of possession comes only from a valid location.3

The circuit court of appeals for the eighth circuit said:

"Every competent locator has the right to initiate a "lawful claim to unappropriated public land by a "peaceable adverse entry upon it while it is in the pos"session of those who have no superior right to acquire "the title or to hold the possession. . . Any other "rule would make the wrongful occupation of the pub"lic land by a trespasser superior in right to a lawful "entry of it under the acts of congress by a compe"tent locator."4

Possession is good as against mere intruders; but it is not good as against one who has complied with the

1 Chapman v. Toy Long, 4 Saw. 28, Fed. Cas. No. 2610.

'Hopkins v. Noyes, 4 Mont. 550, 556, 2 Pac. 280.

Russel v. Hoyt, 4 Mont. 412, 2 Pac. 25; Belk v. Meagher, 104 U. S. 284; Hamilton v. Huson, 21 Mont. 9, 53 Pac. 101.

Thallmann v. Thomas, 111 Fed. 277, 279.

Meydenbauer v. Stevens, 78 Fed. 787; Wilson v. Triumph Consol. M. Co., 19 Utah 66, 75 Am. St. Rep. 718, 56 Pac. 300.