Both parties claim under patents: the plaintiff, under one issued in 1871, upon a certificate of headlight located upon the land in 1870; and the defendant, under a preemption claim, proved up, designated, and surveyed in 1860 and 1861, and patented in 1874. Each party established a good title, abstractly considered, and each, in the absence of the other, would have shown, by the evidence, a title to the land in controversy sufficient to have ejected trespassers.
The case being submitted to the judge, judgment was rendered for the plaintiff, upon the ground, as it would seem from the reasons therein given, that the plaintiff, having the older title by patent, and an equal or greater equity, had the better right to the land.
Under the evidence in the case, we cannot regard this as presenting the true ground upon which the rights of the parties must be settled. The Ferguson preemption was the first claim attaching to the land. That is the initial proposition in the consideration of the case. Proceeding from that, the questions are, first,—Was that a valid claim, so perfected by affidavits, proof, designation, survey, and occupancy, as to have constituted a valid appropriation of the land, it being public land of the State, subject to such appropriation ? and secondly,—Has such claim, so perfected at one time, been -abandoned or forfeited, so as to have become public land again, and liable to location in 1870, when the plaintiff' located the headright certificate upon it ?
The first question maybe answered in the affirmative upon all the points named as necessary, the evidence thereon being entirely sufficient..
Upon the second question, the evidence relied on to show an abandonment of the claim, was that Ferguson, the preemptor, had left the place, and the improvements had disappeared, before 1870, when the plaintiff located the certificate upon the land, and that the plaintiff was told by the commissioner of the General Land Office that the Ferguson claim *407was abandoned. Abandoning the place after the claim had attached by a substantial compliance with the law, was not an abandonment of the claim; nor, indeed, was it any evidence of it in this case.
The representation of the commissioner of the General Land Office to plaintiff, that the claim had been abandoned or forfeited, did not make it so, any more than the mere talk of any other officer with whom a land-locator might converse, in seeking to find vacant land.
The two patents for the same land being issued, was most likely a mistake at the General Land Office, arising out of not knowing that both surveys covered the same land, when the first patent was issued. But whether it was or not, the only advantage in the trial of this case which the plaintiff derives from having obtained the first patent, is that it establishes his title, prima facie, in the first instance, and throws the burden of proof upon the defendant of establishing, by evidence, that Ferguson, under whom he derives title, made a legal appropriation of the land, previous to the location of the plaintiff’s certificate. That once shown, it will be presumed to have continued to exist until the patent to Ferguson’s heirs was issued, confirming it; and it will change the burden of proof on the plaintiff to show that the right under the Ferguson claim that once existed has been lost, so as that the land was vacant in 1870 when he located his certificate upon it, which his evidence fails to do, as it is presented in the record.
Judgment reversed and cause remanded.
Reversed and remanded.