The main question involved in this appeal is whether either of the parties has the exclusive right to the guano on this island, and to the possession of it.
The only grounds on which the plaintiffs can claim such rights must be founded on the supposed discovery of Arthur Benson, when sent out by the company as their agent to take possession of Baker’s and James’ Islands, and such other-islands as might be discovered.
It seems to be conceded that his instructions contained no reference to Howland’s Island, by name. Whether A. Gr. Benson, the president of the association, intentionally or accidentally omitted it from his instructions, is not, in my judgment, material to the decision of this case. Neither the plaintiffs nor the defendants could obtain a right to the exclusive possession by virtue of discovery, irrespective of the act of congress, passed in August, 1856. Such discovery belongs to the United States, and until some exclusive rights are obtained in pursuance of the provisions of that statute, all the citizens of the United States possess equal rights to go there. (Johnson v. McIntosh, 8 Wheat. 543.)
Even if it could appear from the facts in this case, that A. G-. Benson, having the control of the title of the discoverers of the island had led his associates to suppose he would, at a subsequent period, turn it in as a part of the property of the company when incorporated; still, as such transfer was never completed, and as he held the title from the assignors merely for the purpose of selling for their account, there can be no pretense that any title ever vested in them, or that they had ever placed themselves in a position by which they could enforce a conveyance of such title, without compensation to the real owners of the claim.
Nor can the plaintiffs ever claim title to this island, or the guano upon it, as the discoverers. They never were such ; when they sent their agents, first Arthur Benson, and then Dr. Judd, they had full knowledge of the existence of the *28island, and of the discovery of it by hi etcher long before. The source of their information was their president, who was at the time the agent of Uetcher and Turner in the sale of their claims to discovery. As their president, having knowledge of these facts, his knowledge is to have the same effect as knowledge, of the company, so that in no event could the company be freed from notice that Benson was not the owner, and that Uetcher and Turner had rights which they could not obtain except by purchase from them or their agent.
bTor even if they were ignorant of the discoveries of Netcher previously, and were not bound by the knowledge of their president, would their landing on the island give them any rights. It had been previously discovered, and the discovery made known in this country. The act of congress of August, 1856, gives no right except to the first discoverer, and requires him to give notice, as soon as practicable, to the state department.
Under neither of these provisions can the plaintiffs place themselves so as to be entitled to exclusive possession.
bfor have they ever made the application to the government and obtained from the proper authority the right to the exclusive possession. Without it, they, even if the discoverers, could exercise no exclusive control, and could prevent no other citizens from doing anything they could do with the materials found upon the island, unless they had reduced the same to possession.
It is, therefore, very clear that the plaintiffs have no title, either by discovery, or by authority from the United States, to claim the exclusive possession and right to take guano from this island, as against the defendants.
The defendants claim to be vested with such exclusive right under proceedings taken by them, through which they obtained from the secretary of state a declaration that they were entitled to the exclusive right and privilege of occupying the island, for the purpose of obtaining guano thereon, and of selling and delivering the same. It is not necessary *29for the purposes of this appeal, for us to decide upon the validity of this proceeding before the secretary of state, or of this claim as now made. It is more proper to leave the decision of that question to the trial of the cause, or such proceedings as may be taken to have it set aside.
There are facts appearing here which are sworn to in the plaintiffs’ papers, and not contradicted, which entitle the plaintiffs to protection on a preliminary injunction. It may well be doubted whether any such exclusive right can be granted to a discoverer who does not comply with the provisions of the statute in taking possession on the discovery and keeping such possession until his title is confirmed by the government. He can not rest on a mere discovery without possession. There never was any such possession until the island was visited by Arthur Benson, and his possession was involved in doubt, as he was not in the defendants’ employ, and does not appear to have had any instructions from them, while his expenses were borne by the plaintiffs. In whose service he was, and by what authority he was acting, must be decided hereafter. Enough, however, does appear to show that from the first discovery by Hetcher, in 1842, until the visit of Arthur Benson, in 1857, no actual possession had been taken by any one, and that Benson’s possession was only for a short period. That in 1858, when visited by Lewis, it was uninhabited, and remained as when left by Benson, and that, while in that unoccupied condition, the plaintiffs, by their’ agents, went upon the island, expended large sums of money and mined large quantities of guano, which was conveyed to the shore previous to September, 1861, when the defendants landed and took possession of the same.
In regard- to this property, the plaintiffs are entitled to protection. The money was expended and the work performed while the island was uninhabited, and while no possession had been taken or continued by the discoverer. The only attempted possession is claimed by both parties, and the *30alleged interference with the plaintiffs’ property is not denied as fully as it should he to free them from the charge.
[New York General Term, May 2, 1865.Upon an island belonging by discovery to the United States, of which no possession or exclusive rights have been obtained, I have before remarked that all citizens have equal rights, and if, during such period, while it is so unoccupied, money is expended or property placed upon it, it is as much entitled to protection as if it belonged to the discoverer. The declaration from the secretary of state appears to have been made in August, 1860, while the moneys expended, work done and property placed upon the island, appear to have been all previous to that time. With this the defendants have no right, and the injunction, so far as it protects this property, should be maintained.
My conclusions are:
First. That the plaintiffs have no right to the exclusive possession of this island or of the guano upon it, and have no right to exclude the defendants from the island, or from mining guano thereon. This part of the injunction should be vacated.
Second. That the plaintiffs, having expended money in the construction of works, and placing improvements upon the island, and in mining guano, are to be protected in the enjoyment of such property, and in the possession of the guano so mined, and that so much of the injunction as restrains the defendants from interfering with the works, or property, or guano mined by the plaintiffs, or preventing them from removing the same, should be continued.
Third. That the defendants should be restrained from any interference with the plaintiffs or their agents in mining guano and removing the same, provided that in such mining the plaintiffs shall not interfere with the property or works of the defendants, and that the injunction should be so modified.
Ingraham, Geo. G. Barnard and" Clcrlce, Justices.]