Neither party could make a legal mining claim, the lands being in reserve. Kendall v. San Juan Silver Min. Co. 144 U. S. 658, 36 L. ed. 583, 12 Sup. Ct. Rep. 779. The owner of the true title, or the claimant to the title in litigation, not objecting, the courts regard the better right, as between the parties, to be vested in the first possessor. Bird v. Lisbros, 9 Cal. 1, 70 Am. Dec. 617; Plume v. Seward, 4 Cal. 94, 60 Am. Dec. 601; Weimer v. Lowery, 11 Cal. 104; Bequette v. Canfield, 4 Cal. 278, 60 Am. Dec. 615. querque, New Mexico, by which they agreed Evidence was offered at the trial for the purpose of showing these last stated facts, which, under the objection of the defendants, was ruled out and exceptions duly taken. The defendants contended that the land in controversy was at all times subject to the mining laws of the United States, and that plaintiff did not comply with the provisions thereof or of the laws of New Mexico applicable thereto, and that whatever right or title he ever had in the lands had expired [519] and become *forfeited before the defendants took possession of the land and long before the commencement of this action. Mr. J. H. McGowan argued the cause and filed a brief for plaintiff in error: The Land Department has continuously held these private Spanish and Mexican claims to be in a state of reservation until their proper boundaries are fixed by some competent tribunal. Joseph Farr, 24 Land Dec. 1; The Perrine grant, 24 Land Dec. 109; Atlantic & P. R. Co. v. Fisher, 1 Land Dec. 392; Tumacacori and Calabazas Grant, 16 Land Dec. 408. Continuous possessio pedis does not apply to mines as to agricultural lands. Attwood v. Fricot, 17 Cal. 37; English v. tle. N. M. Comp. Laws, §§ 1570, 2218, 2258. 2263; Deemer v. Falkenburg, 4 N. M. 149, 12 Pac. 717; New Mexico, R. G. & P. R. Co. v. Crouch, 4 N. M. 293, 13 Pac. 201; Anderson v. Gray, 134 Ill. 550, 25 N. E. 843; Christy v. Scott, 14 How. 282, 14 L. ed. 422; Coryell v. Cain, 16 Cal. 567; Wilson v. Fine, 38 Fed. 792. The possession of one tenant in common is the possession of his companions, and the law assumes and requires that each shall be true to the other. Union Consol. Silver Min. Co., v. Taylor, 100 U. S. 37, 25 L. ed. 541; Campbell v. Campbe, 13 N. H. 483; Kinney v. Slattery, 51 Iowa, 353, 1 N. W. 628; Miller v. Myers, 46 Cal. 535. Therefore, putting Fagaly in possession, and denial by Pilkey of plaintiff's rights, would constitute an actual and fraudulent ouster of plaintiff. Sedgw. & W. Trial of Title, p. 163, § 277; Barnitz v. Casey, 7 Cranch, 456, 3 L. ed. 403. The questions of conspiracy to defraud plaintiff of his property, and of his alleged abandonment of his property, were each questions of fact for the jury exclusively, under proper instructions from the court. Russell v. Post, 138 U. S. 425, 34 L. ed. Until the title to a floating grant vests in 1009, 11 Sup. Ct. Rep. 353; Preston v. Bowthe grantees, all the lands comprised with-ers, 13 Ohio St. 13, 82 Am. Dec. 430; Comrs. in the claimed limits of the exterior bounda-V. Brown, 14 Gray, 419; Richardson v. Mcries thereof are held in reservation for the Nulty, 24 Cal. 339; Taylor v. Middleton, 67 benfit of the grant. Whitcher v. Southern P. R. Co. 3 Land Dec. 459. While the title to claims of this character is in litigation for the purpose of settling the rights of the grantee, the whole area claimed is reserved from appropriation of any kind, and no part is "public lands" or "lands subject to sale." Cal. 656, 8 Pac. 594; Myers v. Spooner, 55 46 Am. Dec. 323; Mallett v. Uncle Sam Cal. 257; Avery v. Clemons, 18 Conn. 306, Gold & Silver Min. Co. 1 Nev. 194, 90 Am. Dec. 484; Oreamuno v. Uncle Sam Gold & Silver Min. Co. 1 Nev. 215. See also Hammer v. Garfield Min. & Mill. Co. 130 U. 8. 291, 32 L. ed. 964, 9 Sup. Ct. Rep. 548. The statements made by Pilkey, Fagaly, and Walker, respectively, while in possesNewhall v. Sanger, 92 U. S. 761, 23 L. ed. sion or conspiring to get into possession of the premises, were admissible in evidence 769. for various reasons,—89 declarations why the failure occurs which works a for. against interest, as showing the character of feiture. defendants' title, as declarations of conspirators made during the pendency of a fraudulent combination. 2 Whart. Ev. 1156; 1 Greenl. Ev. 109; Rowland v. Philadelphia, W. & B. R. Co. 63 Conn. 415, 28 Atl. 102; Ward v. Cochran, 18 C. C. A. 1, 36 U. S. App. 307, 71 Fed. 135; Martin v. Bonsaek, 61 Mo. 559. Mr. William B. Childers argued the cause and filed a brief for defendants in er. ror: A reservation from entry and location can only be the result of a statute, or executive action in pursuance of a statute. Saunders v. Mackey, 5 Mont. 523, 6 Pac. 361; Doherty v. Morris, 11 Colo. 12, 16 Pac. 911; Hunt v. Patchin, 35 Fed. 816. There is no rule of law which makes a subsequent relocation of a mining claim by one owner enure to his co-owner's benefit. One owner can relocate and exclude his co owners. Strang v. Ryan, 46 Cal. 33. Where an outstanding title is acquired by one partner in a mining claim, such purchase does not enure to the benefit of his copartners. Bissell v. Foss, 114 U. S. 260, 29 L. ed. 129, 5 Sup. Ct. Rep. 851. Wolsey v. Chapman, 101 U. S. 755, 25 L. d. 915; Newhall v. Sanger, 92 U. S. 761, 23 The possession of a cotenant in a mining L. ed. 769; Van Reynegan v. Bolton, 95 U. claim can become hostile to his cotenants 8. 33, 24 L. ed. 851; Hosmer v. Wallace, 97 whenever he openly repudiates the relation, U. S. 575, 24 L. ed. 1130; Trenouth v. Ban and gives notice to his cotenants of such reFrancisco, 100 U. S. 251, 25 L. ed. 626; Aur-pudiation, and notifies them that he is no recoechea v. Bangs, 114 U. S. 381, 29 L. ed. Íonger holding for them. 170, 5 Sup. Ct. Rep. 892; Doolan v. Carr, 125 U. S. 618, 31 L. ed. 844, 8 Sup. Ct. Rep. 1228; Grant v. Jaramillo, 6 N. M. 313, 28 Pac. 508; Chavez v. Chavez de Sanchez, 7 N. M. 58, 32 Pac. 157; United States v. MoLaughlin, 127 U. S. 428, 32 L. ed. 213, 8 Sup. Ct. Rep. 1177. If the mining laws were applicable, the plaintiff's failure to complete a valid location by compliance with the statutes left the land open to location by the "Washington" locators on that day. Belk v. Meagher, 104 U. B. 287, 26 L. ed. 738; Faxon v. Barnard, 4 Fed. 703; Mallett ▼. Uncle Sam Gold & Silver Min. Co. 1 Nev. 188, 90 Am. Dec. 484; Kendall v. San Juan Silver Min. Co. 144 U. B. 665, 36 L. ed. 585, 12 Sup. Ct. Rep. 779; Wills v. Blain, 5 N. M. 238, 20 Pac. 798; Seidler v. La Fave, 5 N. M. 44, 20 Pac. 789; Baxter Mountain Gold Min. Co. v. Patterson, 3 N. M. 269, 3 Pac. 741. The holding of the Secretary of the Inte rior that the repeal of the 8th section of the act of 1854 creating the reservation had no effect on the reservation is directly at variance with the principle laid down by this court in Stoddard v. Chambers, 2 How. 285, 11 L. ed. 269. The contention of the plaintiff in error that the reservation existed by reason of the treaty is not sound. The treaty itself creates no such reservation, and none could be created except by act of Congress. Botiller v. Dominguez, 130 U. S. 247, 32 L. ed. 928, 9 Sup. Ct. Rep. 525. "Forfeiture" and "abandonment" are not synonymous. The first depends on facts alone; the second upon fact and intent. In case of forfeiture, intention is immaterial. Mallett v. Uncle Sam Gold & Silver Min. Oo. 1 Nev. 188, 90 Am. Dec. 484; St. John ▼. Kidd, 26 Cal. 264; King v. Edwards, 1 Mont. 235. All evidence of alleged conspiracy and colfusion between Pilkey and the "Washing ton" locators, Fagaly and Walker, is wholly irrelevant because it is immaterial how or Freeman, Cotenancy & Partition, § 1229. The bringing of this suit admits that there was an ouster; otherwise ejectment could not be maintained. Barnitz v. Casey, 7 Cranch, 471, 3 L. ed. 408. The evidence clearly shows that neither Pilkey nor any other person had such prior possession as would sustain an action of ejectment. Sabariego ▼. Maverick, 124 U. S. 297, 31 L. ed. 444, 8 Sup. Ct. Rep. 461. There is no ground for the contention that Pilkey's possession was or could have been the plaintiff's after the repudiation of the contract, which all the evidence shows was before the entry of defendants. A prospecting contract can be rescinded or abandoned, and thereafter all privity under it ceases. Chadbourne v. Davis, 9 Colo. 581, 13 Pac. 721. In the action of ejectment under the New Mexico statute the plaintiff cannot recover on an equitable title, but only on the legal title, or actual prior possession of which he has been deprived by the defendant without title. Hunter v. Hemphill, 6 Mo. 106; Gurno v. v. Janis, 6 Mo. 330; Guyol v. Chouteau, 19 Mo. 546; Williams v. Carpenter, 35 Mo. 70; Beal v. Harmon, 38 Mo. 439. See also Pickett v. Jones, 63 Mo. 200; Sedgw. & W. Trial of Title, § 184. In actions of ejectment in the United States courts the strict legal title prevails. If there are equities which show the right in another, these cases can only be considered on the equity side of the Federal courts. Foster v. Mora, 98 U. S. 428, 25 L. ed. 192. 128 U. S. 382, 32 L. ed. 414, 9 Sup. Ct. Rep. To the same effect see Johnson v. Christian, 87; Bagnall v. Broderick, 13 Pet. 436, 10 L. ed. 235; Hooper v. Scheiner, 23 How. 235, 16 L. ed. 452; Langdon v. Sherwood, 124 U. S. 74, 31 L. ed. 344, 8 Sup. Ct. Rep. 429; Morehouse v. Phelps, 21 How. 294, 16 L. ed. 140; Doe es dem. Oaksmith v. Johnston, 92 U. 8. 346, 23 L. ed. 683. See also Carpen tier v. Montgomery, 13 Wall. 480, 20 L. ed. Conceding that the mining laws did not Ferris v. Coover, 10 Cal. 631; St. John v. Kidd, 26 Cal. 272; Davis v. Butler, 6 Cal. 510; Derry v. Ross, 5 Colo. 295; Mallett v. Uncle Sam Gold & Silver Min. Co. 1 Nev. 188, 90 Am. Dec. 484; Depuy v. Williams, 26 Cal. 310; Strang v. Ryan, 46 Cal. 33. The allegation of fraud and collusion between Pilkey and the locators of the Washington mine adds nothing to the right of plaintiff in error to maintain his ejectment suit; and it was not a question which should have been submitted to the jury, or that could have been litigated in an ejectment suit. We entry and were not subject to the mineral laws of the United States at that time. It will be noticed that before the trial of this case the validity and extent of the Cochiti grant had been decided by the court of private land claims, and this land was thereby excluded from the limits of that grant. know by our own records that the decree of the court of private land claims was affirmed in this court. in substance, in Whitney v. United States, decided in May, 1897. 167 U. S. 529, 42 L. ed. 263, 17 Sup. Ct. Rep. 857. The contention on the part of the plaintiff in error is that while the Cochiti claim was before the court of private land claims, and thereafter until its final determination by this court, no land within its claimed limits could be entered upon under the mining laws of the United States, and if any such entry were in fact made it was illegal and void, and gave no rights under the mining laws to the parties so entering, and consequently plaintiff's possession was not subject to forfeiture under those laws. In other words, that while the claim was [519] *Mr. Justice Peckham, after making the sub judice all lands within its limits as above statement of facts, delivered the opin-claimed were withdrawn and reserved from entry under any of the laws pertaining to the sale or other disposition of the public lands of the United States, and that the plaintiff, being in possession, had the right to retain it as against defendants who entered without right or title, and were therefore mere trespassers. Morehouse v. Phelps, 21 How. 294, 16 L. ed. 140; Doe ex dem. Oaksmith v. Johnston, 92 U. S. 343, 23 L. ed. 682; Carpentier v. Montgomery, 13 Wall. 480, 20 L. ed. 698. ion of the court: unsur At the time of the location the record shows the parties believed the land was government land, and not within the limits of any Mexican grant. The stipulation shows, however, that the lands were in fact within the limits of the private land claim known as the Canada de Cochiti grant; that the grant was never confirmed by Congress upon the report of the surveyor general, and that two different sets of claimants under the grant had filed their petitions in the court of private land claims at Santa Fé, one on the 2d and the other on the 3d day of March, 1893; that there was a decree of confirmation rendered by the court on September 29, 1894, and in that decree of confirmation the lands were not included within the boundaries of the grant as confirmed by that decree. An appeal was taken therefrom by all the parties to the Supreme Court of the United States, where it was pending at the time the stipulation was entered into, the appeal being dated March 11, 1895. It therefore appears that at the time of the discovery and location of the lode in July, 1893, the Cochiti grant was before the [520] court of private land claims for adjudication, and the question is whether by reason of that fact these lands were reserved from Public lands belonging to the United States, for whose sale or other disposition Congress has made provision by its general laws, are to be regarded as legally open for entry and sale under such laws, unless some particular lands have been withdrawn from sale by congressional authority or by an executive withdrawal under such authority, either expressed or implied. Wolsey v. Chapman, 101 U. S. 755, 769, 25 L. ed. Hewitt 915, 920; V. Schultz, 180 U. S. 139, ante, 463, 21 Sup. Ct. Rep. 309. We must therefore refer to the action of Congress to discover whether lands which in fact were public lands of the United States were reserved from sale or other disposition under its public laws because they were included within the claimed limits but in fact were not within the actual limits of a grant by the Spanish or Mexican authorities before the cession of the *territory by Mexico[521] to the United States by the treaty of Guadalupe Hidalgo of February 2, 1848. 9 Stat. at L. 922. The 8th and 9th articles of that treaty provide that the property of every kind belonging to Mexicans in the ceded territory should be respected by the government of the United States and their title recognized. In 1854 (10 Stat. at L. 308, chap. 103) Congress established the office of surveyor general of the territory of New Mexico, and in the 8th section of that statute it was made the duty of that officer, under instructions from the Secretary of the Interior, to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico. tion is taken on the respective claims or grants affected thereby. We cannot agree with these decisions. In the last case the Secretary held, in opposi tion to the views expressed by his predecessor in the earlier case, that the lands were not reserved by virtue of the statutory reservation under the act of 1854, because that He was to make a full report of all such elaims as originated before the cession of the territory to the United States by the treaty above mentioned, with his decision as to the validity or invalidity of each. This report was to be laid before Congress for such action thereon as it might deem just and proper, "and until the final action of Congress on such claims, all lands cov-section was repealed by the 15th section of ered thereby shall be reserved from sale or the act of 1891 without any qualification, other disposal by the government, and shall and the repeal went to the entire section; not be subject to the donations granted by but he held that "whatever may have been the previous provisions of this act." the purpose of Congress in making said resThe Cochiti grant came before the sur-ervation, it is clear that all lands embraced veyor general pursuant to the provisions of the act of 1854, and therefore by the terms of that portion of § 8, just quoted, the lands were reserved from sale or other disposal by the government until final action by Congress thereon. Up to March 3, 1891, Congress had taken no action in regard to this grant and on that day it passed the act establishing the court of private land claims (26 Stat. at L. 854, chap. 539), and by its 15th section Congress in terms repealed the As we have already stated, there are no 8th section of the act of 1854, "and all acts words in the treaty with Mexico expressly amendatory or in extension thereof, or sup-withdrawing from sale all lands within the plementary thereto, and all acts or parts of acts inconsistent with the provisions of this act." By this repeal, lands which were in fact public lands belonging to the United States, although within the claimed limits of a Mexican grant, became open to entry and sale under the laws of the United States, unless, as is the contention of plaintiff, such (22]lands were reserved from "entry and sale or other disposition by the United States, by reason of the provisions of the treaty with Mexico. We see nothing in the terms of that treaty, either in the 8th or 9th article, that could be construed as a withdrawal of lands which in fact were the public lands of the United States, although contained within the claimed limits of some Mexican grant made prior to the cession to the United States. The mere fact that lands were claimed under a Mexican grant, when such grant did not in truth cover them, would not by virtue of any language used in the treaty operate to reserve such lands from entry and within the claimed limits of grants made by sale. We are aware that the Land Department has in some cases taken a different view of this subject. In the Tumacacori and Calabazas Grant, 16 Land Dec. 408, 423, the Secretary held that the act of 1891, creating the court of private land claims, did not by its 15th section, "either by expression or necessary implication, revoke or annul the statutory reservations in force at the time of its passage." claimed limits of a Mexican grant, and we do not think there is any language in the treaty which implies a reservation of that kind. Whatever reservation there is must be looked for in the statutes of the United States, and we are of opinion that there is no such reservation and has been none since the repeal of the 8th section of the act of 1854. In Stoddard v. Chambers, 2 How. 284, 11 L. ed. 269, the action was ejectment for lands in Missouri. The defendant claimed ti tle under a New Madrid certificate permit ting location upon the public lands which had been authorized to be sold under an act of Congress, approved February 15, 1811, by which the President was authorized to sell public lands in the territory of Louisiana, of Congress thereon no tract shall be ofIwith a proviso that "till after the decision fered for sale the claim to which has been in due time, and according to law, presented to the recorder of land titles in the district of Louisiana, and filed in his office, for the sioners appointed for ascertaining the rights purpose of being investigated by the commisof persons claiming lands in the territory of Louisiana." From the time of the passage of that act up to May 26, 1829, it was not questioned that all lands claimed under French or Spanish title were reserved from sale by acts of Congress. On May 26, 1829, this reservation ceased until it was revived by the act of July 9, 1832, and was continued from And in the Joseph Farr Claim, 24 Land that time until the act of 1836. The defendDec. 1, the Secretary held that by the terms ant's patent was issued on July 16, 1832,of the treaties between the United States after the time when the reservation was reand the Republic of Mexico all lands em-vived by the act of July 9, 1832. In speakbraced within the Mexican and Spanish ing of the location under his New Madrid grants were placed in a state of reservation certificate by the defendant, the court said for the ascertainment of the rights claimed under said grants, and that the act of March 3, 1891, continued that reservation in force, and that it would remain so until final a (at p. 318, L. ed. 283): "His location was made on lands not liable to be thus appropriated, but expressly reserved; and this was the case when his patent was issued. decision in the court of private land claims could in any way be affected. No court of justice had been appealed to for any such Had the entry been made, or the patent issued, after the 26th of May, 1829, when the reservation ceased, and before it was revived [524]by the act of 1832, the title of the defend-purpose. The question was simply whether ant could not be contested. But at no other So in that case it appears that unless the land was public land open to entry under the laws of the United States, and this was a question which parties might decide at the peril of having their acts rendered of no avail if the decision of the court of private land claims included those lands in the grant then before it. Nor does the case of Newhall v. Sanger, 92 U. S. 761, 23 L. ed. 769, apply. In that case it was held that lands within the boundaries of ar alleged Mexican or Spanish grant which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the railroad, were Mineral lands are not supposed to have not embraced in the congressional grant to been granted under ordinary Mexican grants the company. The decision went upon the of lands, and the act of 1891 provides that ground that the legislation of Congress had minerals do not pass by such grants, unless been so shaped that no title could be initithe grant claimed to effect the donation or ated under the laws of the United States to sale of such mines or minerals to the lands covered by a Spanish or Mexican claim grantee, or unless such grantee became oth- until it was barred by lapse of time or reerwise entitled thereto in law or in equity;jected. The act of March 3, 1851 (9 Stat. the mines and minerals remaining the prop erty of the United States, with the right of working the same, but no mine was to be worked or any property confirmed under the act of 1891 without the consent of the owner of such property, until specially authorized thereto by an act of Congress thereafter to be passed. Section 13, subd. 3, act of 1891. This provision makes it still plainer that, so far as regards mineral lands, there was no intention after the passage of the act of 1891 that they should be reserved by a mere claim in a Mexican grant of ordinary land. Nor does the claim that the Cochiti grant was sub judice at the time of the location of these lands affect their status as public lands belonging to the United States. They were not, in fact, within the limits of the grant. at L. 631, 633, chap. 41, § 13), which pro- The case of Astiazaran v. Santa Rita Land & Min. Co. 148 U. S. 80, 37 L. ed. 376, 13 Sup. Ct. Rep. 457, is not in point. In that case it was held that a private claim to land in Arizona, under a Mexican grant Being public land and since 1891 open to which had been reported to Congress by the location under the mining laws of the United surveyor general of the territory, could not, States, it is further contended on the part of before Congress had acted on the report, be defendants that the location of the claim contested in the courts of justice. It was made by Pilkey on July 10, 1893, in behalf stated (p. 83, L. ed. 377, Sup. Ct. Rep. of himself and his two partners, Lockhart the 458) that "the case is one of those, jurisdic-plaintiff herein and Johnson, became fortion of which has been committed to a par-feited by reason of noncompliance with the ticular tribunal, and which cannot, there-mining statutes of the United States and alfore, at least, while proceedings are pend- so the territory of New Mexico, and that [525]ing before that tribunal,-be taken up and decided by any other." The court further said that Congress having constituted itself the tribunal to finally determine upon the report and recommendation of the surveyor general whether the claim was valid or invalid, the proceedings were pending until Congress acted, and while they were pending the question of the title of the petitioner could not be contested in the ordinary courts of justice. This is no such case. There was no contest in any other court by which the validity or extent of the grant pending for while such failure to comply with the statutes continued, peaceable possession of the land was taken and a relocation made by the defendants, and whatever rights the plaintiff ever had under the first location were thereby cut off. The laws of New Mexico in force at the time when this location was made provide that a person desiring to locate a mining claim must distinctly mark the location on the ground so that its boundaries may be readily traced, and must post in some conspicuous place on the ground a notice in |