Noyes v. Black

• Decision Date: 17 January 1883
• Citation: 4 Mont. 527
• Parties: NOYES and others v. BLACK and others.
• Court: Montana Supreme Court

4 Mont. 527

NOYES and others

v.BLACK and others.

Supreme Court of the Territory of Montana.

Filed January 17, 1883.

Mere possession of a mining claim upon public lands, not based upon a valid location, will not avail to prevent a valid location under the law, and the rules and customs of the mining district. The right to the possession comes only from location.

Appeal from Second district, Silver Bow county.

Robinson & Stapleton, for appellants.

Knowles & Forbis, for respondents.

WADE, C. J.

This is the case of actual possession against a valid location. The plaintiffs, by virtue of possession alone, attempted to hold mining ground as against a valid location of the same ground. This they cannot do. In the case of Belk v. Meagher, 3 Mont. 80, 81, we held that “there is no grant from the government under the act of congress, unless there is a location according to law, and the local rules and regulations. Such a location is a condition precedent to the grant. Mere possession, not based upon a valid location, would not prevent a valid location under the law.” The Supreme Court of the United States, affirming this decision, says: “The right to the 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 working on the ground, recording, and doing whatever else is required for that purpose by the act of congress, and the local rules and regulations.” Belk v. Meagher, 104 U. S. 284.

In the case of Hopkins v. Noyes, ante, 280, we held that “possessory titles do not live upon possession alone. They must be supported by proof of a compliance with the law that gives the right to and sustains possession. The mere naked possession of a mining claim upon the public lands is not sufficient to hold such claim as against a subsequent location made in pursuance of the law, and kept alive by a compliance therewith.”

In the case of Tibbitts v. Ah Tong, ante, 759, it is said: “The right to possession comes only from a valid location. It is a part of the location itself. *** The right to locate and the right to possess go together. They are parts of the same grant. They belong to each other. Neither can exist without the other. *** Location is the foundation of the possessory title, and possession under it, as required by the law, and the local rules...