Cope, J. concurring.
The judgment in this case must be reversed.
We understand the pleadings to admit that the plaintiff was the owner of the premises, for the answer does not deny the specific allegations of the complaint which set up and affirm the plaintiff’s title.
If the plaintiff had, as he alleges, the possession of this lot 'of ground as a milk ranch and corral, he was entitled to hold that possession as against all the world, the Government excepted, (if the land belonged to it) subject only to this qualification—that upon land taken up for other than mining purposes, a right of entry may attach for such purposes. But any one so entering can only justify his entry by showing, at least, first, that the land is public land; second, that it contains mines or minerals; third, that the person entering upon or against a prior possession, enters for the bona fide purpose of mining. But this being in the nature of a justification of the entry as against an apparent and prima facie right of the actual prior possessor, must be affirmatively pleaded in the answer, with all the requisite averments to show a right under the statute, or by law to enter. This defense does not appear in the answer, or even by the proofs.
We do not decide in this case, even if this defense had been properly set up, that the defendant would have been entitled to enter.
Judgment reversed and cause remanded for further proceedings.