DISSENTING OPINION.
Galbraith, J.,dissenting. The record in this case shows that the respondents, who are Chinamen, and . have never declared their intention to become citizens of the United States, purchased the ground in question, which was unpatented mining ground, from Bailey and ' others, who were citizens of the United States, and in possession of the premises at the time of the purchase by. the respondents, and who made a valid location thereof. The appellants claim that the vendors of the respondents having parted with all claim to the premises, and the same being now in the possession of and occupied by persons who are not citizens of the United States and have ■ never declared their intention to become such, that therefore it became public mineral land of the United States and subject to location.
The property in question belongs to that class of property which is termed a mining claim. At the time of the.. *546conveyance of the ground in question by the vendors to the respondents, the location was a valid one, the vendors having in all respects complied with the laws of the United States and the local rules and customs of the mining district in making such location, and they were in possession thereof. This is not disputed.
• The character of the title to a valid mining claim or location is that of a grant by the United States of its exclusive possession and enjoyment. This is the highest character of title, except perhaps that of a public grant by the government where the act of congress is itself the-grant. It is equivalent to a patent; it will support ejectment.
A mining claim perfected as the one in question has-been is property in the fullest sense of the word; it may he the subject of sale, mortgage and inheritance. These positions are supported by abundance of authority. In the case of Forbes v. Gracey, 94 U. S. 762, the supreme court of the United States, by Miller, J., says: “These claims are the subject of bargain and sale, and constitute very largely the wealth of the Pacific coast. They are property in the .fullest sense of the word, and their ownership, transfer and use are governed by a well-defined code or codes of laws, and are recognized by the state and federal governments. These claims may be sold, transferred, mortgaged and inherited without infringing the title of the United States.” The same court, in Belk v. Meagher, 104 U. S. 279, by Waite, O. J., says: “A mining claim perfected under the law is property in the highest sense of that term, which may be bought, sold and conveyed, and .will pass by descent.” In the same case, referring to the claim therein in dispute, which was. an unpatented mining claim: “On the 19th day of December the right to the possession of this property was just as much withdrawn from the-public .domain as the fee is by a valid'grant from the United States under the authority of law, or the possession by a valid and sub*547sisting homestead or pre-emption entry. . . . A location, to be effectual, must be good at the time it is made; when perfected, it has the effect of a grant by the United States of the right of present and exclusive possession.”
In Belk v. Meagher et al. 3 Mont. 65, the supreme court of this territory, by Wade, C. J., says: “'By the terms of this section (referring to section 2319 of the Revised Statutes of the United States), the locator of a mining claim has a possessory title thereto, and the right to the exclusive possession thereof. The words imply property. The right to the exclusive possession and enjoyment of a mining claim includes the right to work it, to extract the mineral therefrom, to the exclusive property in such mineral, and the right to defend' such possession. The right to the exclusive possession and enjoyment of property, accompanied with the right to acquire the absolute title thereto, presupposes a grant, and the instrument of this grant, as applied to mining claims upon the public lands, is the act of congress above’ referred to. This act being of general application to all the mineral lands belonging to the government, and conferring a title or easement therein upon the locator thereof, and vesting the right in him to become the absolute owner to the exclusion of all others, is a legislative grant, and being given by act of congress, is equivalent to a patent from the United States to the same. The title thus conferred upon the locator of a mining claim is a legal title, as distinguished from ah equitable one, and such a title as would support an action of ejectment.”
We cannot understand that there could be language expressing in stronger terms that mining claims, such' as that in question, are property, or indicating a more absolute dominion over it by the owner, than that'above given. Such language certainly, if it means anything," must indicate that the title which was in the Umt'e'd1 States to the property granted, that is, the right to the ’ *548exclusive possession thereof, has been wholly divested, and has become absolute in the grantee. It ceased, therefore, to be public mineral land of the United States, and subject to location as such, under section 2319, and could only be restored to that condition by abandonment or forfeiture..
The respondents do not claim by virtue of a location by themselves under the act of congress, but by virtue of a conveyance to them of a title by those who have divested the title of the United States. Section 2319 does not relate in any way to lands which have ceased to be public mineral lands of the United States, nor is there indicated therein any intention to modify the existing law in relation to the transfer of property to an alien, or to create a distinction between mining claims and any other species of property which may be purchased by or devised to an alien, subject to the well-known rule of law, that, “though an alien may purchase land or take it by devise, yet he is exposed to the danger of being divested of the fee and of having his lands forfeited to the state upon an inquest of office found. His title will be good against every person but the state.” 2 Kent’s Com. pp. 61, 62.
The title to the mining claim in question having passed out of the United States, and being vested in Bailey and others, they had a right to convey the same to the respondents, who could take and hold the same, subject to the above rule of law. “ They could take and hold until office found.” Ferguson v. Neville, 61 Cal. 356.
We have said that to restore this property to the public domain there must have been an abandonment or forfeiture thereof. The sale to the respondents was not an abandonment by the vendors. Their right to sell to an alien is recognized by the above rule of law. Therefore the sale to an alien no more constitutes evidence of an abandonment than a sale to a citizen. The disability is not in the vendor to sell, but in the vendee to hold, and *549that only so far as the government is concerned, and only then when it has proceeded by office found.
Again, such a sale does not work a forfeiture. There is no provision of the statute, nor any rule of law, which will cause such a sale to work a forfeiture. But even granting that such was the case, it can only be taken advantage of by the government. If such a sale could cause a forfeiture, it would be so because it is in the nature of a condition subsequent. The supreme court of the United States, Field, Justice, giving the opinion, says: “ It is settled law that no one can take advantage of the non-performance of a condition subsequent, annexed to an estate in fee, but the grantor or his heirs, or the successors of the grantor, if the grant proceed from an artificial person; and if they do not see fit to assert their right, the title remains unimpaired in the grantee. The authorities on this point, with hardly an exception, are all one way, from the year books down. And the same doctrine obtains where the grant upon condition proceeds from the government. No individual can assail the title that it has conveyed on the ground that the grantee has failed to perform, the condition annexed.
“In what manner the reserved right of the grantor for breach of the condition must be asserted so as to restore the estate, depends upon the character of the grant. If it be a private grant, that right must be asserted by entry or its equivalent. If the grant be a public one, it must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office, at common law, finding the fact of forfeiture and adjudging the restoration of the estate on that ground, or there must be some legislative assertion of ownership of the property, for breach of the condition, such as an act directing the possession and appropriation of the property, or that it be offered for sale or settlement. At common law the sovereign could not make an entry in person, and, therefore,an office found was necessary to determine the estate; *550but, as said by this court in a late case, ‘ the mode of asserting or of resuming the forfeited grant is subject to the legislative authority of the government. It may be after judicial investigation, or by taking possession directly under the authority of the government without these preliminary proceedings.’” Schulenberg v. Harriman, 21 Wall. 44; United States v. Repeutiquez, 5 Wall. 211, 268.
There is no pretense that any action of the character above indicated has ever been taken in this case. The title to the mining claim in question was therefore still in the respondents when the appellants made their location. It was not then a part of the public domain. “A relocation on lands actually covered at the time by another valid and subsisting location is void, and this not only against the prior locator, but all the world, because the law allows no such thing to be done.” The judgment of the district court should have been affirmed. .