Johanson

(after stating the facts as above). The court, in charging the jury to return a ver *27 diet for the defendant in error, evidently regarded the case as one falling within the rule, expressed in numerous decisions, that one who in good faith makes his location, remains in possession, and with due diligence proceeds to make discovery, is fully protected against all forms of forcible, fraudulent, surreptitious, or clandestine entries or intrusions upon his possession. It may be conceded that the rule would be applicable here, if the entry and possession of the plaintiff in error were of the character so described. But there is nothing in the evidence to show that the plaintiff in error entered into possession secretly, or by force or fraud, or that the defendant in error took any steps to protect his possession. It is not denied that the latter told the former that he “could go ahead and work,” .but it would be at his own risk. Conceding, for the purposes of this case, that the location made by the plaintiff in error on May 25, 1905, unaccompanied by discovery at the time, gave to him no right subsequently to return and take possession of the claim after another had made due location…