Opinion of the Court.

there was any continued or even a single ruling of the land department to the effect that land situated as was this was subject to the price of $2.50 per acre, and, of course, if there had been no ruling to that effect there had been no objection or protest by any one. Nor is there anything to show that the $2.50 was paid on any supposition that it was an excessive charge, or paid simply for the purpose of protecting a property right which he had acquired. It is said that as he had already gone upon the land and made improvements, that he paid $400 to protect his right to his settlement and improvements, and that he paid it because such price was exacted from him; but there is nothing in the record to indicate that he did not go upon the land in the first instance supposing that the price was $400, or that he did not file his declaratory statement, make his settlement and improvements-all with the expectation of paying the sum which he did thereafter pay. Under those circumstances it cannot be said that he paid a sum which was exacted from him-not because he believed it was the proper charge, but because he felt that it was necessary to protect his rights. In short, and to sum it up in a word, so far as we can see from this record the transaction was purely voluntary on his part, and that while there was a mistake it was mutual and one of law-a mistake on his part not induced by any attempt to deceive or misrepresentation by the government officials. It is a case of a voluntary payment, and as such the claimant's remedy is by appeal to the discretion of Congress and not by an action in the Court of Claims.

The judgment is reversed, and the case remanded with instructions to enter judgment for the Government.

Statement of the Case.

LOCKHART v. JOHNSON.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

No. 147. Argued March 22, 1901.-Decided May 13, 1901.

Public lands belonging to the United States, for whose sale or other disposition Congress has made provision by 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laws, are to be regarded as legally open for entry and sale under such laws, unless some particular lands have been withdrawn from sale by Congressional authority, or by an executive withdrawal under such authority, either express or implied.

Under the act establishing the Court of Private Land Claims, public lands belonging to the United States, though within the claimed limits of a Mexican grant, became open to entry and sale.

If the provisions of the laws of New Mexico, in force when this location was made, were not complied with, and another location is made before such work was done, the new location is a valid location.

In the courts of the United States in action of ejectment the strict legal title must prevail; and if the plaintiff have only equities, they must be presented on the equity side of the court.

Although the plaintiff has no right to maintain this action, he ought not to be embarrassed by a judgment here from pursuing any other remedy against the defendants, or either of them that he may be advised.

THIS was an action of ejectment brought by plaintiff in error to recover certain mining property in the Territory of New Mexico. The declaration alleges that the plaintiff, on July 10, 1893, was entitled to the possession of a certain mine, or deposit of mineral-bearing rock in place, situated in the Cochiti mining district, in the county of Bernalillo and Territory of New Mexico, and that while so in possession the defendants, on October 1, 1893, entered into and upon the premises and have ever since withheld the possession of the same from the plaintiff to his damage. All the defendants pleaded not guilty, while Pilkey added a further plea that he was not at the time of the commencement of the action in the possession of the premises or any part thereof. The plaintiff demurred to this second plea, and after argument the demurrer was overruled. The parties went to trial upon these pleadings, and after the

Statement of the Case.

testimony had been taken the jury, under the instructions of the court, found a verdict for the defendants. The plaintiff appealed from the judgment entered upon the verdict to the Supreme Court of the Territory, where it was affirmed, and he thereupon sued out a writ of error from this court.

For the purpose of the trial the parties entered into the following stipulation :

"It is stipulated and agreed by and between the plaintiff and defendants in the above-entitled cause that the premises in controversy in this case are situated within the limits of private land claim reported as number 135 in the office of the surveyor general of the Territory of New Mexico, known as the Canada de Cochiti tract, as said claim was surveyed by the surveyor general, said survey having been made and approved by Clarence Pullen, surveyor general, on the date of June 29, A. D. 1885.

"It is further stipulated that said private land claim was never confirmed upon report of the surveyor general, but two petitions for the confirmation of the same were filed in the Court of Private Land Claims, one by Joel Parker Whitney, José Juan Lucero, Laurino Lucero, Juan Cristoval Lucero, José de Jesus Lucero, Juan Toedora Lucero, José Telesforo Lucero, Bernard S. Rodey, and Hannah Harris, being numbered 205 of the docket of the Court of Private Land Claims at Santa Fé, and filed March 2, 1893; and the other petition being filed by Manuel Hurtado and José Antonio Gallego on the 3d day of March, 1893, and that said petitions were consolidated in said cases heard, and decree of confirmation rendered by said court on the 29th day of September, A. D. 1894, a compared copy of which decree is attached to this stipulation.

"It is further stipulated and agreed that the said premises in controversy in this case are not included within the boundaries of said grant as confirmed by said decree.

"It is further stipulated and agreed that an appeal was taken from said decree by all of the said petitioners to the Supreme Court of the United States, in which court said cause is now pending upon said appeal and undetermined, said appeal being dated the 11th day of March, A. D. 1895.

"It is further stipulated and agreed that the official printed

Statement of the Case.

copies of the reports of the surveyor-general to Congress upon said private land claim and all documents attached thereto may be used upon the trial of this cause to the same effect as if they were the original documents and archives on file in the surveyor general's office, subject, however, to such objection as the parties may make upon other grounds."

The plaintiff also showed upon the trial that he and one Benjamin Johnson and the defendant Charles Pilkey on or about May 7, 1893, entered into an agreement at Albuquerque, New Mexico, by which they agreed to form a partnership for the purpose of discovering, locating and operating mining claims, Pilkey agreeing to prospect and locate such veins and lodes and places as he might discover, containing valuable ores or minerals, in the name and for the joint benefit of all the parties to the agreement, in the proportion of one third interest to himself and an undivided two thirds interest to the others. They were to furnish him with tools, etc., and to pay him for some portion of his labor upon the mines which he might discover. In pursuance of this agreement Pilkey started out and among others discovered, took possession of and assumed to locate the mine in question. It is claimed on the part of the plaintiff that Pilkey, after taking possession of and locating the mine, remained there from July 10, 1893, until some time in October of that year, when in connection with several other persons he entered into a conspiracy against his partners and pursuant thereto ceased to do any work on the mine and permitted other persons (defendants herein) to take possession of it and make a relocation thereof, and that they have retained possession ever since.

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 and be

Opinion of the Court.

come forfeited before the defendants took possession of the land and long before the commencement of this action.

Mr. J. H. McGowan for plaintiff in error.

Mr. William B. Childers for defendants in error.

MR. JUSTICE PECKHAM, after making the above statement of facts, delivered the opinion of the court.

The first question to be determined in this case is one which arises out of the facts set forth in the stipulation between the parties, and that is, Did the lands which the plaintiff claims to recover belong at the time of the location in 1893 to the United States within the meaning of section 2319, Revised Statutes, which provides that "all valuable mineral deposits in land belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States," etc.?

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