applied for, and until such final approval and certification the lands are not withdrawn from the public domain, but are subject to exploration and purchase under the mining laws. 212. Desert lands. By the act of March 3, 1877,1 supplemented by the act of March 3, 1891,2 provision is made for the reclamation of desert lands, and the transmission of the title in quantities not exceeding six hundred and forty acres. Mineral lands cannot be acquired under this act. Desert land claimants will rarely come in conflict with mining claimants. Of course, beds of borax, nitrate, and carbonate of soda are found in the desert regions, but their mineral character is generally so obvious that no controversy is likely to arise. It would be much cheaper and more expeditious for a claimant to enter these classes of lands under the placer laws than to attempt to acquire title under the onerous provisions of the desert land laws. Should such conflicts arise, they would be governed by the same general rules of law applicable to other classes of entries discussed in the preceding sections of this article. ARTICLE X. OCCUPANCY WITHOUT COLOR OF TITLE. 216. Naked occupancy of the pub lic mineral lands confers 217. Rights upon the public do- by forcible entry upon 218. Appropriation of public min eral lands by peaceable entry in good faith upon the possession of a mere occupant without color of title. 2219. Conclusions. 2216. Naked occupancy of the public mineral lands confers no title Rights of such occupant. - Title to mineral lands of the public domain can be initiated and 119 Stats. at Large, 377: 26 Stats. at Large, 1095. 226 Stats, at Large, 1095. acquired only under the mining laws. As was said by the supreme court of the United States, "No title from the United States to land known at the "time of sale to be valuable for its minerals of gold, silver, "cinnabar, or copper can be obtained under the pre-emption, "homestead, or townsite laws, or in any other way than as "prescribed by the laws specially authorizing the sale of "such lands." There can be no strictly lawful possession of such lands, unless that possession is referable to the mining laws. "There can be no color of title in an occupant who does "not hold under any instrument, proceeding, or law, pur"porting to transfer to him the title, or to give to him the right of possession. And there can be no such thing as "good faith in an adverse holding, where the party knows "that he has no title, and that under the law, which he "is presumed to know, he can acquire none by his occupation. "2 As heretofore shown, when dealing with occupants of the public mineral lands for the purposes of trade or business, mere occupancy of the public lands and improvements thereon give no vested right therein as against the United States, or one connecting himself with the government, by compliance with the law." This is the universal rule as to all classes of public lands." While this is true, the occupant has certain rights based upon the fact of actual possession, which, from motives of public policy, are accorded to him. As was said by the supreme court of California, "As against a mere trespasser, one in possession of a "portion of the public land will be presumed to be the "owner, notwithstanding the circumstance that the court "has judicial notice that he is not the owner, but that the 1 Deffeback v. Hawke, 115 U. S. 392, 404. 2 Id. See, ante, 170. Sparks v. Pierce, 115 U. S. 408. 5 Frisbie v. Whitney, 9 Wall. 187; Hutchins v. Low, 15 Wall. 77; Campbell v. Wade, 132 U. S. 34; Jourdan v. Barrett, 4 How. 169; Burgess v. Gray, 16 How. 48; Gibson v. Chouteau, 13 Wall. 92; Oaksmith v. Johnston, 92 U. S. 343; Morrow v. Whitney, 95 U. S. 551. L government is. This rule has been maintained from "motives of public policy, and to secure the quiet enjoy"ment of possessions which are intrusions upon the United "States alone." This is nothing more than a reiteration of the familiar rule, that, as against a mere intruder, or one claiming no higher or better right than the occupant, possession is prima facie evidence of title." But this is all that can be claimed. As against one connecting himself with the government, this occupancy must yield to the higher right. 217. Rights upon the public domain can not be initiated by forcible entry upon the actual possession of another. To what extent actual possession of any portion of the public mineral lands prevents their valid appropriation under the mining laws depends upon the facts and circumstances of each particular case. There are certain recognized principles, however, which are necessarily involved in all such cases, the application of which will, generally speaking, result in their proper solution. It is a doctrine well established that no rights upon the public domain can be initiated by a forcible entry upon the possession of another. A forcible and tortious invasion of such possession confers no privilege upon the invader, and can not be made the basis of a possessory title. A rightful seisin can not flow from a wrongful disseisin. 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 pre-emption. 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; 1 Brandt v. Wheaton, 52 Cal. 430. 2 Campbell v. Rankin, 99 U. S. 261; Atwood v. Fricot, 17 Cal. 38; English v. Johnson, Id. 108; Hess v. Winder, 30 Cal. 349. that such an intrusion was but a naked and unlawful trespass, and could not initiate a right of pre-emption.1 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 acquir ing 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 tranquility.2 § 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 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 Atherton v. Fowler, 96 U. S. 513; Quinby . Conlan, 104 U. S. 421; Hosmer v. Wallace, 97 U. S. 575. Cowell v. Lammers, 10 Saw. 246. 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 disas"trous consequences. The appropriation of these lands in "large tracts for agricultural and grazing purposes, 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 doctrine." 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. Mere possession, 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, 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: 'Smith v. Doe, 15 Cal. 101, 105; Gillan v. Hutchinson, 16 Cal. 154. 3104 U. S. 279, 284. |