delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

The plaintiff took up a portion of public land, professing to *383 enter it by virtue of the Act of 1858, as seminary land, to which the State is entitled under Act of Congress. The land was mineral land, and the defendants went upon it to extract the gold, and to use water running through it as auxiliary to mining.

The plaintiff can derive no aid from his location on this tract as seminary land under the Act of the Legislature, for neither that Act nor the Act of Congress allows mineral land to be so appropriated. The presumption raised by statute, (Wood’s Dig. 527,) is, “ that all lands in this State shall be deemed and regarded as public lands until the legal title is shown to have passed from the government to private parties.” It is true that we have repeatedly held that possession is proof of ownership in the possessor; but these presumptions are not necessarily irreconcilable. The possession of agricultural land may draw to it this presumption against a trespasser in favor of the possessor; but when it is shown that a person goes upon mineral land to mine, there is no presumption that he is a trespasser; for, if it be not private property, it is his right so to go, and the statutory rule of presumption, that in the absence of a showing of title in the person claiming to hold it for agricultural purposes, it is public land, applies.

To hold that a mere entry upon a tract of public mineral land of any given extent gives a right to exclusive occupancy and enjoyment to one man, would be to hold that the whole mineral region might be appropriated and monopolized by a few men— a doctrine which would effectually exclude the mass of the people of the State from a participation in the mines. We have often held that no such claim can be recognized. In this case there are no circumstances which call for any modification of the principle which allows a right of entry upon the public mineral land by those desiring to work the mines or extract the minerals found on a tract claimed to be possessed by a mere prior locator. If any modifications be necessary to secure the rights of the parties first in possession, we must reserve the consideration of them until a proper case arises.

Judgment affirmed.