Page:Federal Reporter, 1st Series, Volume 7.djvu/349

 SliAVONIAN MINING CO. V. PERASICH. 837 �claiming the ground, I do not see how it can justify an entry upon the posession of another, who, by the terms of the law, bas the same right to relocate the claim that the plaintiff or its grantors had to locate it originally. The language of the law is that after a failure to work — and it is conceded there was a failure in this case — the claim shall be "open to relocation in the same manner as if no location of the same had ever been made," with a proviso that the original locators have not resumed work after failure and before such location. Did congress contemplate anything besides a peaceable entry and resumption of work before an entry by the relocators? I think not. Congress never could have meant to enaet a law whieh would encourage breaches of the peace, as this would if the original locators might resume work at any time before a formai relocation by those who had entered after forfeiture for the purpose of relocation, �The relooator, after entry for the purpose of locating, would be in the same predicament as the original locator was when he took possession in the first instance, and would have precisely the same rights, — the same right to hold the ground against trespassers,upon the basisof his possessiopedis, — with- out complying with the local rules and customs, or indeed with the law of congress. Atherton v. Fowler, 96 U. S. 513, So that, after a forfeiture incurred, the original locator, it seems to me, cannot put himself in a position to maintain eject- ment, except by actually resuming work before an entry by a person seekingto relocate for the forfeiture, and an ouster by such person ; for clearly the defendants in this case, finding no one on the ground, had a right to take possession after January 3, 1880. After that date, and before resuming work, there could be no ouster of the plaintiff. Nor would the plaintiff, after forfeiture incurred, be justified in making an entry on this mining ground while in the possession of another. The threats of Perasich were, therefore, upon the theory of plaintiff that he was in possession, nothing wrong if this view is right. �Let judgment be entered for defendants for costs. �v,7,no.3— 22 ��� �