4 Mont. 527 | Mont. | 1883
This is the case of actual possession against a valid location. The plaintiffs, by virtue of possession alone, attempt to hold mining ground as against a valid location of the same ground. This they cannot do. In the case of Belk v. Meagher et al. 3 Mont. 80, we held that “there is no grant from the government, under the act of congress, unless. there is a location according to law and the local rules and regulations. Such 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.” The supreme court of the United States, affirming this decision, say: “The right of possession comes only from a valid location. Consequently, if there is no location, there can be no 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 working on the ground, recording, and doing whatever else is required for that purpose by the acts of congress and the local rules and regulations.” Belk v. Meagher, 104 U. S. 284.
In the case of Hopkins et al. v. Noyes, decided at this term, we held that “ Possessory titles do not live upon possession alone. They must be supported by proof of a compliance with the law that gives the right to and sustains the possession. The mere naked possession of a
In the case of Tibbitts v. Ah Tong, decided at this term, it is said: “ The right to the possession comes only from a valid location. It is a part of the location itself. . . . The right to locate and the right to possess go together. They are parts of the same grant. They belong each to the other. Neither can exist without the other. . . . Location is the foundation of the possessory title, and possession under it, as required by the law and the local rules and customs, keeps the title alive. The government holds the superior title in trust for the person so holding the possessory title until, by complying with the law, he may acquire the full title.” 4 Mont. 536. To the same effect, see Russell v. Hoyt, 4 Mont. 412; McKinstry v. Clark & Cameron, 4 Mont. 370; Hauswirth v. Butcher, 4 Mont. 299.
As against a stranger, possession is sufficient to maintain trespass or ejectment. But that is not this case. Here the plaintiffs attempt to stand upon bare possession without a location, as against the defendants, who have a location — a grant, which carries with it the right of possession and the right to acquire full title. In such a case there is no presumption of title in favor of the party in possession. But, if there was, he who shows a valid location, as against naked possession, has the better right.
The judgment is affirmed, with costs.
Judgment affirmed.
