The Tombstone epitaph., 1882-02-27

made, the original claim was con- tinued in force and made operative until there could be another forfeit ure by reason of the failure of the owners to do the necessary annual work. The year in which the work was done began on the 1st of Janu- ary, 1875, and ended on the 3lst of December. The law fixes no time within a year when the work must be done. Consequently, if done at any time during the year it IS enough, and there can be no forfeiture until the entire year has gone by. That, in this case, would not be until De- cember 3lst, 1876, and the work, if completed on that day, wosld be just as effectual for the protection of the claim as if it had been done on the lst of January previous. It follows that on the 18th of December, 1876, the owners of the original location had, under the act of congress, the exclusive right to the possession and enjoyment of the property in dis pute. "A mining claim perfected under the law is property in the highest sense of that term, which may be bought, sold and conveyed and pass by descent.-Forbes vs. Gracey, 94 U. S., 767.) There is nothing in the act of congress which makes &C., tual possession any more necessary for the protection of the title acquired to such claim by valid location than it is for any other grant from the United States. The language of the act is that the locators "shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their location," which is to continue until there shall be failure to do the requisite amount of work within the pre- scribed time. Congress has seen fit to make the possession of that part of the public lands which is valuable for minerals separable from the fee, and to provide for the exist ence of an exclusive right to the possession, while the paramount title to the land remains in the United States. In furtherance of this policy it was enacted (13 Stat. Al, Chap. 67, Sec. 9lO) that no possessory ac- ton between individuals in the courts of the United States for the recovery of mining titles should be affected by the fact that the para mount title to the land was Tn the United States, but that each case should be adjudged by the law of possession. Mining claims are not open to relocation until the rights of a former locator have come to an end. A relocator seeks to avail him. self of mineral in the public lands which another has discovered. This he cannot do until the discoverer has in law abandoned his claim and left the property open for another to take up. The right of location upon the mineral lands of the United States is . privilege granted by Congress, but it can only be exercised within the limits prescribed by the grant. To- cation can only be made where the law allows it to be done. Any at- tempt to go beyond that will be ot no avail. Hence . relocation on lands actually covered at the time by another valid and subsisting location is void and this not only against the prior locator, but all the world, because the law allows no such thing to be done. It follows that the relocation of Belk was invalid at the time it was made, and continued to be so until January l, 1877. The next inquiry is, whether the attempted location in December became operative on the
 lst of January, so as to give Belk exclusive right to the possession and enjoyment of the claim after that
 We think it did not. The right to
 possession comes only from a valid location. Consequently, if there is no location there can be nc
 possession under it. Location does not necessarily follow
 from possession, but possession from
 location. A location is not made by
 taking possession alone, but by worL
 ing on the ground and recording and
 doing whatever else is required for
 that purpose by the acts of congress
 and the local laws and regulations
 As in this case all these things were
 done when the law did not allow it
 they are as if they had never been
 done. On the 18th of December
 the right to the possession of this
 property was just as much withdraw
 from the pubic domain as the fee k
 by valid grant from the United States
 under the authority of law, or the
 possession by valid and subsisting
 homestead or pre-emption entry. Az
 the United States could not at the time
 give Belk the right to take possession
 of the property for the purpose oi
 making his location, because there
 was an existing outstanding grant of
 the exclusive right of possession and
 enjoyment, it would seem necessarily
 to follow that any tortious entry he
 might make must be unavailing for
 the purpose of valid location of s
 claim under the act of congress. A
 location to be effectual must be good