By the Court,
Lewis, J.The plaintiff, who is an occupant of certain lots in the city of Gold Hill, brings this action against the defendant to recover five hundred dollars, in which sum he claims to have been damaged by reason of the deposit upon his premises of large quantities of rock, *373dirt, and refuse ore. The complaint also contains allegations, upon which an injunction is sought, to restrain the defendant, its agents, servants, and employés from repeating or continuing the trespass complained of. It is admitted by the defendant that the plaintiff was in the actual possession of the two dwelling-houses on the premises in question at the time of the alleged trespass; but it justifies the acts complained of by a claim of superior title and right of possession in itself. The evidence adduced at the trial developed the fact that the defendant’s grantors located a certain ledge, together with the land occupied by the plaintiff, some time in the year 1859, and that the plaintiff made no location until some two years later. Courchaine had taken steps to acquire title from the General Government, and at the trial offered to prove that he had filed his declaratory statement, giving notice of his intention to pre-empt the premises; that the Register and Receiver had rendered a decision in favor of his right, accepted of him the Government price for the same, and given the ordinary receipt therefor. The Court below refused to admit this evidence, and the usual exception was taken by counsel for- the plaintiff. The verdict resulted in favor of the defendant, but believing that he had erred in rejecting proof of the decision of the local land officers, the Judge below set aside the judgment, and directed a new trial. From this decision of the Court the defendant appeals.
If it were error to rule out the decision of the land officers, or if any other material error were committed at the trial prejudicial to the plaintiff, it was clearly the duty of the Court to set aside the verdict. Whether that decision should have been admitted is the principal question discussed by .counsel, and the only one which it is necessary for this Court to consider.
To maintain an action of trespass quare clausum fregit, it was formerly necessary for the plaintiff to establish an actual possession of the locus in quo in himself, but under the more modern holding it seems that a constructive possession is sufficient. But a possession, whether actual or constructive, which is not rightful as against the defendant, is not available to the plaintiff, hence a superior right of possession in the defendant is always a sufficient answer to any action of trespass brought against him. Actual possession, al*374though it be wrongful, is sufficient to support the action against a mere stranger or intruder, who has not the right of possession in himself, nor authority from the rightful owner. In such case the plaintiff’s actual possession is rightful as against all mere intruders who have no color of right. His possession gives him as good right to maintain trespass against such as the absolute right of property, coupled with the possession, could give him. But when the defendant shows that he is entitled to the possession of the premises by reason of a superior title, he shows that the plaintiff has no right of action. It is therefore necessary for the plaintiff not only to show possession in himself, hut it is indispensable that such possession be rightful as against the defendant.
In this case, the plaintiff, after showing that he was in the actual possession of the premises at the time of the trespass, offered in evidence the decision of the local land officers, for the purpose of showing that his right to the possession was superior to that of the defendant, which claimed title simply through priority of location. If that decision confers a right of possession upon the plaintiff, the proof offered should have been admitted. Our conclusion is that it does. The public land is absolutely at the disposal of the Federal Government. Although individuals may settle upon and occupy portions of it, no title is acquired thereby which will be available against the primary right of the Government. As between- each other, settlers may acquire rights, which the Courts will maintain and enforce. Thus the first possessor is always deemed to have the best right, and by establishing priority of possession he is allowed to recover in ejectment, and in fact he is treated as -the absolute owner of the land occupied by him. But all rights so acquired are subject to the paramount title of the Government. .Occupation and priority of possession are utterly worthless when opposed to a title, or right of possession expressly conferred by the proper Federal authorities. As between persons none of whom claim title from the Government, nor can show a right of possession recognized by it, priority of possession must prevail. When, however, the Government has declared, or by its proper tribunals decided, that a particular person is entitled to the possession, such declaration or decision, in the absence of fraud, is high evidence of his *375right to such possession; certainly superior to that which is acquired simply by priority of possession, unaccompanied with any recognition from the Government.
The paramount proprietor of the soil having an unrestricted right of disposition, has established certain regulations, by which persons producing the requisite proof are entitled to purchase a limited amount, at a given price per acre. Officers are appointed to take that proof, to determine from it whether the applicant is entitled to purchase, or, where there is a contest, to decide which has the better right, and to receive the purchase money from him who in their judgment is entitled to the patent. Nor can such decision be legally rendered in favor of any person who does not show himselfz entitled to the possession at the time he makes application to preempt, for only those who are occupants of and have made improvements upon public land have the right to purchase the same as pre-emptors. The decision of the proper officers is therefore evidence not only of the fact that he in whose favor it is rendered is entitled to the patent, but also that he has settled upon and.improved the premises claimed by him, and is certainly a direct acknowledgment that such settlement and possession is lawful and in accordance with the will of the General Government. The Register and Receiver of the local land office are the officers appointed by the Government to take the proof, decide upon.the merits of all applications, and to receive the purchase money from the successful party. The law requires the proof in all cases to be made to their satisfaction. Where the proof is so made, their decision rendered, and the purchase money paid, how can it be said that such decision is not evidence of right of possession in him in whose favor it is given ? It is a decision made by officers appointed by the Government to determine such rights. Their decision is the decision of the Government itself, and should therefore be accepted as evidence of superior right. The conclusion arrived at by the land officers, although not strictly a judicial decision, bears nevertheless a strong analogy to it, and it seems to us should be received as evidence of the right to the possession, and indeed of all the facts which it is necessary for the pre-emptor to prove before the land officers.
It is true the Commissioner of the General Land Office has a *376supervisory control over tbe action of the local officers, and the power to reverse their decisions, but the bare possibility of a reversal should not destroy its effect as evidence until so reversed; therefore it ought to be received as proof of the right of possession.
But it is claimed, because the purchase money was not paid until some time after the commission of the trespass complained of, the title or right of possession acquired by the proceedings in the Land Office is not available to the plaintiff in this action. If, as argued by counsel, the right of the pre-emptor dates only from the time the Receiver’s receipt for the purchase money is issued, the decision of the land officers would in this case be inadmissible, for that title or right of possession only is available which existed at the time of the trespass. But in our judgment the decision of that officer is a confirmation by the Government of all acts done by the pre-emptor towards acquiring title, and a recognition that his possession from the time he took the first step to obtain title was rightful and agreeable to the laws enacted by Congress. It has been held that the legal title acquired by the patent relates back to the time when the declaratory statement was filed. "Why should not the rights conferred by the decision also relate back to the same time ? A person can only be permitted to pre-empt who shows that he was an occupant at the time he filed his declaratory statement; the decision of the officers in his favor is evidence of his occupation at that time, and also that he had the best right to the possession, otherwise it is to be presumed the decision would be adverse to his right to pre-empt. The decision of the local officers, it seems to us, should be evidence of all the facts necessary to support such decision. Possession, or a superior right of possession at the time of filing the declaratory statement, is the necessary result of the facts required to be proved ; the decision should therefore be evidence of such possession. We could readily agree with counsel for appellant that the mere certificate of the Register, and Receiver’s receipt, would tend to establish nothing but the facts, that a declaratory statement had been filed by the plaintiff, and that he had paid a certain sum of money for the premises to the person acknowledging its receipt; and so without the decision of the land *377officers, these papers would in no wise tend to establish title or right of possession. But it appears by the record that the plaintiff offered to show that the land officers had rendered a decision in favor of his right to pre-empt the lots in question, and that the money paid by him and evidenced by the receipt was the purchase money paid to the Government thi’ough the Receiver. Indeed, it appears that the entire proceedings had in the Land Office were offered in evidence and rejected.
Nor are we able to see how the Act of Congress referred to can help the defendant — that Act declaring “ That where mineral veins are possessed, which possession is recognized by local authority, and to the extent .so possessed and recognized, the'title to town lots to be acquired shall be subject to such recognized possession, and a necessary use thereof.”
Although this law seems to make the lot owner’s title subordinate to the miner’s right, whenever the use of the lot becomes necessary to enable the latter to work the mine, still the question as to whether such necessity exists or not in any particular case is to be determined by the jury. If it be found that the necessity does not exist, then the claimant of the lot will be entitled to recover for any injury suffered by him, if he has the better title. But if he be not allowed to establish his title or right of possession in an action against a miner who trespasses upon his premises, he would generally have no remedy, although he might have a perfect title, and no necessity such as that mentioned in the law exists in favor of the trespasser. It is necessary, therefore, in cases of this kind, where the defendant seeks to defeat the plaintiff’s action by a claim of superior title and right of possession, that the plaintiff be allowed to fortify his possession by proof of any title or right which may in any wise tend to show that his possession is rightful as against the defendant.
We conclude that the evidence offered should have been admitted. As it was ruled out, the new trial was properly granted.
The order must be affirmed.
Beatty, C. J., did not participate in the foregoing decision.