for confirmation, as provided in tbe Act. Tbe Act contains no sucb provision in respect to locations made upon land that bad been surveyed at tbe passage of tbe Act; and if it contained sucb a provision, its effect would be merely to legalize sucb possession as tbe locator tben beld, but would not extend tbe right, until tbe selection should be approved and tbe land certified to tbe State by tbe Commissioner. There is no evidence in tbe case, that tbe defendants intruded upon tbe possession of tbe plaintiff ( if any be bad) of tbe southwest quarter of tbe section, and as to that land, tbe plaintiff is not entitled to a recovery.
Tbe record does not furnish the data for tbe apportionment in respect to tbe two quarter sections of land, of tbe damages recovered for tbe use of occupation of tbe premises. Tbe judgment must be reversed unless sucb damages shall be remitted.
Judgment reversed and cause remanded for a new trial, unless tbe plaintiff shall, within twenty days after tbe filing hereof, remit tbe damages recovered herein.
And it is further ordered, that upon tbe plaintiff's remit*74ting such damages witbin tbe time aforesaid, tbe judgment for tbe recovery of tbe possession of tbe northwest quarter of section 10, township 4 north, range 2 east, be affirmed; and that tbe judgment for tbe recovery of tbe possession of the southwest quarter of tbe same section, township and range, be reversed, and cause remanded for a new trial, as to tbe last mentioned tract of land-.
Sprague, j., expressed no opinion.