Page:Federal Reporter, 1st Series, Volume 8.djvu/708

 <)94 FEDBBAIj bbpobtbs. �ular as to fom; that the Orion was first located, surveyed, a.vA Btaked; that the! locators have steadily proseouted work in the devel- opment thereof, and hav^discovered minerai in place; that the dis- coverers of the Pendery, located subsequently tO the Orion, and while the locators of the latter were in possession thereof, also prosecuted work amd disoovered minerai in place before the discovery by the locators of the Orion. The question submitted to the court is this: Can pro^pectors on the public minerai domain acquire any right in whioh the law will proteot them prior to the discovery of minerai in rock in place? And, if so, can plaintiffs, being prior locators, recover against defendants, who first discovered mincral on the ground in controversy ? �It is the opinion of the court that inasmuch as the plaintiffs allowed, tl^ defendants to enter upon their claim and within their bouudaries and there sink a shaft, in wbich they discovered minerai in rock in place before a discovery by plaintiffs, and make location thereof, without protest, the defendants now h^ve the better right. But the plaintiffs migbt have protected their actual possession of their enfijre claim by proper legal proceeding prior to the discovery of minerai by the defendants, or by either party. �A prospector on thc public minerai domain may protect himself in the poBsessioia of his pedis postessionis while he is searching for nunerail. His possession so held is good as a posaessory title against all the world, except the govemment of the United States. But if he stands by and allows others to enter upon tiis claim and first discover minerai in rock in place, the law gives such first discoverer a title to the minerai so first disoovered, against wbich the mere possession of the surface cannot preyail, and in this case judgmeuti must be for the defendants. ��� �