On Rehearing.
Opinion delivered January 14, 1907.
Hill, C. J.i. Appellees insist that the complaint is sufficient to be sustained as a complaint in equity to confirm title, under chapter 25, Kirby’s Digest, and that it does not, taken as a whole, allege that the defendants were in possession. It asserts a possessory right in themselves; that the defendants (appellants here) assert some claim to it and have pending in the United States Land Office an application for it, and they, plaintiffs, have filed their adverse claim therein, and, after asserting right to possession as a mining claim, plaintiffs pray for possession, and that the defendants be ejected from the land therein described, and for costs and general relief. The defendant in answer “admits he is in possession of the land mentioned and described in the complaint,” and then asserts title thereto. Certainly, these pleadings put the possession of the land in the defendants, and form an issue as to the rightful possessory title thereto; essentially an action of ejectment.
2. Appellees contend that they were peacefully in possession when appellants surreptitiously proceeded to attempt a location, which was defective in many respects. The evidence does not sustain appellees’ contentions. The evidence shows that they never held possession of the land, and never had any possession of it except such scrambling possession as accompanied their wholly insufficient assessment work.
The failure' to do the assessment work forfeited whatever original rights they may have had, but they had a right to resume work unless other rights intervened, and appellees contend that this principle applies to them; but they never did bona ñde work, and never had anything to tie back to. Whatever rights they have must be builded on the May ,2, 1904, location. . In August, 1903, they had the ground surveyed and the lines blazed, not in view of a new location, but to establish evidence in this suit. Later, when-a new location, or amendment as it was called, was made, then this survey of the year before was relied upon as marking the claim on the ground. The Supreme Court of the United States said: “The right to 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 marking on the ground, recording and doing whatever else is required for that purpose by the acts of Congress and the local terms and regulations.” Belk v. Meagher, 104 U. S. 279.
The disconnected marking- of the claim on the ground of August, 1903, the new' location of May 2, 1904, unaccompanied by work and without actual possession, are insufficient to bring these parties within the above requirements.
On the other hand, Ware had the possession contemplated of mining claims by the actual physical work required, and the work was there as evidence of possession; and, as shown, in the absence of intervening rights, he could amend and thereby perfect his -entry. In addition to this, even without a valid location notice, if he could peacefully hold possession against the world and do the requisite work for the required time, he could get a patent. Belk v. Meagher, supra.
This possession is merely prima facie rightful. It was at least sufficient to sustain an action of trespass against an intruder, but not enough to prevent recovery by one who had made peaceful entry and in good faith made a valid location of it; but, as seen, appellees’ evidence fails to bring them into that class.
The court has not held, and does not hold, that Ware has title. It is merely -holding that Ware’s possession and requisite annual assessment work under a defective location is sufficient to defeat a recovery on a patched relocation where there is no peaceful entry and possession of the land nor work done under it. The question of appellants’ title is not for adjudication, but appellees’; and for the reasons given appellees must" fail in this action.
The court might well have disposed of the case on the ground that this action could not be maintained on after-acquired title. That question was not presented, and these others were; and, as they both work- out to the same end, the court preferred placing its -decision on the ground discussed.
Motion overruled.
Wood and Riddick, JJ., dissent.