GILBERT, Circuit Judge
(after stating the facts as above). The court, in charging the jury to return a ver*27diet for the defendant in error, evidently regarded the case as one falling within the rule, expressed in numerous decisions, that one who in good faith makes his location, remains in possession, and with due diligence proceeds to make discovery, is fully protected against all forms of forcible, fraudulent, surreptitious, or clandestine entries or intrusions upon his possession. It may be conceded that the rule would be applicable here, if the entry and possession of the plaintiff in error were of the character so described. But there is nothing in the evidence to show that the plaintiff in error entered into possession secretly, or by force or fraud, or that the defendant in error took any steps to protect his possession. It is not denied that the latter told the former that he “could go ahead and work,” .but it would be at his own risk. Conceding, for the purposes of this case, that the location made by the plaintiff in error on May 25, 1905, unaccompanied by discovery at the time, gave to him no right subsequently to return and take possession of the claim after another had made due location thereof and taken possession for the purpose of exploration, the remedy of the latter was to protect his possession against the entry of the former. Both the locators being in possession by common consent, as they were after June 8th, it became a race of diligence between them to discover gold, and he who first discovered it undoubtedly obtained the prior right. His discovery did not relate back to the date of his location; but his location was made valid by discovery, and took effect from that» date, and it gave him the full right in the claim, to the exclusion of all others. This is well established by the authorities. Lindley on Mines (2d Ed.) § 216;, Horswell v. Ruiz, 67 Cal. 111" court="Cal." date_filed="1885-06-03" href="https://app.midpage.ai/document/horswell-v-ruiz-5442114?utm_source=webapp" opinion_id="5442114">67 Cal. 111, 7 P. 197; Garthe v. Hart, 73 Cal. 541" court="Cal." date_filed="1887-10-06" href="https://app.midpage.ai/document/garthe-v-hart-5443179?utm_source=webapp" opinion_id="5443179">73 Cal. 541, 15 P. 93; Gemmell v. Swain, 28 Mont. 331" court="Mont." date_filed="1903-06-03" href="https://app.midpage.ai/document/gemmell-v-swain-6641066?utm_source=webapp" opinion_id="6641066">28 Mont. 331, 72 P. 662" court="Mont." date_filed="1903-06-01" href="https://app.midpage.ai/document/matador-land--cattle-co-v-county-of-custer-6641052?utm_source=webapp" opinion_id="6641052">72 P. 662, 98 Am.St.Rep. 570; Belk v. Meagher, 104 U.S. 279" court="SCOTUS" date_filed="1881-12-18" href="https://app.midpage.ai/document/belk-v-meagher-90454?utm_source=webapp" opinion_id="90454">104 U.S. 279, 26 L.Ed. 735; Crossman v. Pendery (C.C.) 8 F. 693" court="None" date_filed="1881-04-15" href="https://app.midpage.ai/document/crossman-v-pendery-8221918?utm_source=webapp" opinion_id="8221918">8 F. 693. In the case last cited, Miller, Justice, said: “It is the opinion of the court that, inasmuch as the plaintiffs allowed the defendants to enter upon their claim and within their boundaries and there sink a shaft, in which they discovered mineral in rock in place before a discovery by plaintiffs, and make location thereof, without protest, the defendants now have the better right. But the plaintiffs might have protected their *28actual possession of their entire claim by proper legal proceeding prior to the discovery of mineral by the defendants, or by either party. A prospector on the public mineral domain may protect himself in the possession of his pedis possessionis while he is searching for mineral. His possession so held is good as a possessory title against all the world, except the government of the United States. But, if he stands by and allows others to enter upon his claim and first discover mineral in rock in place, the law gives such first discoverer a title to the mineral so first discovered, against which the mere possession of the surface cannot prevail.”
In the light of these authorities it was error to instruct the jury to return a verdict for the defendant in error.
The judgment is reversed, and the cause is remanded for a new trial.