ON PETITION EOR REHEARING.
Groesbeck, Chief Justice.This cause was decided June 30, 1896. This is an application for rehearing. Counsel for the plaintiffs in error urging with much force that considerable space in the original opinion was devoted to the discussion of what was conceived to be the main question involved in the case, which was disposed of largely upon cases which had not been cited or referred to in argument, and which counsel had previously no opportunity to examine, and oral argument upon the application was ordered.
All of the propositions discussed upon the original hearing, except one, are waived in the brief ánd argument, and counsel rests his case solely upon the proposition that the plaintiffs in error could not be disturbed in their possession growing out of the inclosure of the lands in dispute, by the defendant in error, who entered under his homestead filing upon a quarter section of land inclosed in common with other lands of the plaintiffs and another, after the desert-land entry of the grantor of plaintiffs had been canceled for fraud by the local government land officials, whose action was approved by the Commissioner of the General Land Office, and from the decision of which last-named officer, no appeal was taken. At that hearing, the plaintiffs were present by counsel. They now assert no claim or color of title, except that of mere naked possession, which they assert can. not be invaded by the *366defendant in error under his homestead entry, and whose continued trespasses, as they are alleged to be, were enjoined pendente lite. We held that the possession of plaintiffs in error of the land in dispute based on the fact of its inclosure by themselves and others, with other lands of their own and of the government, was not an exclusive possession.
Another entryman was invited to enter within the inclosure by them and did so enter, while it is sought to exclude the defendant in error under his filing. It is vigorously asserted that such exclusion was proper, and in support of this position an illustration is made of the invitation of a guest to occupy a room in one’s house, an act that could not be construed as extending a general invitation to the public to enter, or as an equivalent to throwing open the doors of the dwelling to all mankind. This illustration is not apt, as the premises inclosed in this case were not all owned or held by claim or color of right or title by the plaintiffs in error. The case is more analogous to the keeper of a common inn, who by inviting one guest to enter, admits the public to the premises. By inviting an outsider to enter within their inclosure, if it can be called such, in view of the fact that one side of the field had been inclosed by strangers to the suit, their possession after such entry can not be an exclusive possession to the whole tract. To lands adjudicated not to be their own, in a proceeding in which they appeared, they seek to invite one and exclude another. Such a course, if upheld by the courts, would carry the doctrine of the sanctity of an enclosure to an absurd length, and permit parties to inclose large tracts of the public lands-in common with their own, and exercise such control of the government parcels, as to admit some and exclude others, moved by caprice or a fastidious desire to choose their neighbors. The cases, both State and Federal, relied upon by plaintiffs in error, were mainly decided upon the ground that one has no right to enter public lands to dispossess an occupant thereof, who has in good *367faith, under claim or color of title, taken possession of the land, inclosed, improved, or cultivated it. Upon the land in dispute, and upon all the lands embraced in the canceled desert entry, of which they are a part, there were no-improvements whatever. We do not think the decisions-in this case cited as upholding the right of plaintiffs in error can he tortured into applying to the circumstances of’ this case, where the right of possession to the land and adjacent lands covered by the desert-land entry of the grantor of plaintiffs in error, have been determined in a. proceeding lawfully and regularly conducted by the land department, in which they participated, and from the decision of which, adverse to their grantor, affirmed by the Commissioner of the General Land Office, they took no appeal. It would seem that the doctrine that the person who has the right of possession may by peaceable entry upon the land, acquire sufficient possession of it to enable-him to maintain an action for trespass against any person who being in possession at the time of his entry wrongfully continues upon the land (2 Jaggard on Torts, 686) has not been upset by the leading decisions in cases of entry upon the public lands, which will not permit an entry thereon, held under claim or color of right, or perhaps only by right of prior possession and occupancy where improvements have been made thereon, or where settlement has been effected, or where time and labor have been expended thereon by an innocent party with an honest belief that the occupant had a claim or title thereto. The view announced rather timidly, in the early case of State v. Ross, 4 Jones’s Law (N. C.), 315, seems to be the true doctrine. After reviewing the apparent conflict in the British authorities, the court say: “ Perhaps it will be found that the authorities may be reconciled, on this distinction. One having a right of entry, may, at common law, use force, provided it does not amount to a breach of the peace; whereas one not having a right of entry is guilty of the trespass, indictable at common law, if he enters with a strong hand, under circumstances cal-*368ciliated to excite terror, although the forde used does not amount to a breach of the peace.” Although this resume of the law is offered merely as a suggestion, it is undoubtedly in harmony with the American cases. See notes to the case of State v. Ross, supra, 68 American Dec. 754, et seq., and particularly the case of Low v. Elwell, 121 Mass., 309.
There can be no question under the testimony that the entry was peaceably made upon the premises; that no inclosure of the plaintiffs in error was removed or broken down to make the entry, for it was made through a gate in a fence, belonging to strangers to this suit, serving to Inclose on one side the lands inclosed by plaintiffs in error, and none of the circumstances of the entry show that the acts of the defendant in error were of such a nature as to excite terror, or were done with a strong hand. He did not forcibly dispossess the plaintiffs in error, neither did he obtain or seek to obtain the fruits of their labor or that of any person by his peaceable entry. His permission to enter was by the license of the government, the sovereign owner of the soil, which had, in accordance with law, through its duly constituted and authorized officials, declared the land open to entry, after canceling the entry of the grantor of the plaintiffs in error, in a proceeding in which they participated, and having further .allowed the entry of the defendant upon the land as vacant land, and open to settlement.
To warrant the interference of a court of equity in restraint of continuing trespasses, the title of the complainant must be established, or at least a superior right to the possession than is possessed by the adverse party, and if title to the locus in quo is in doubt, the injunction, if granted, should only be temporary, until the title can be determined at law. 1 High on Injunctions, Sec. 701. In this case, the title had been determined by a tribunal clothed with full jurisdiction to try and determine the matter, before the government had parted with its legal •estate, a right, as in the original opiniop in the case at *369bar, was shown to be undisputed, before the issuance of patent, as well as after its delivery in a suit to cancel it for fraud in the initial or final entry. It is difficult to see what protection a court of equity could afford to the plaintiffs in error in this suit by an injunction to restrain continuing trespasses on the lands, after the defendant in error had established possession, under the evidence adduced at the trial. For the reasons herein given, as well as those set out in length in the. original opinion, the judgment of the district court for Albany County will be affirmed, and the petition for rehearing denied.
Conaway and PotteR, JJ., concur