Hanson

Not being satisfied with our decision heretofore rendered in this case ( 161 F. 861 , 89 C.C.A. 55 ), the petition for a rehearing of the cause was granted, and after a further consideration of the record we are convinced that the decision then made was erroneous. The theory upon which we then proceeded was that the evidence was sufficient to justify a finding of such a possession of the mining ground in question by the defendants in error, who were the plaintiffs below, as precluded the plaintiffs in error, who were defendants below, from entering upon it for the purpose of prospecting and making a valid mining location thereon. Some of the facts are stated in the opinion then delivered, but there are other facts shown by the record which were overlooked.

The plaintiffs in error, as well as the defendants in error, are eight in number, and made the location under which they respectively claim as an association claim of 160 acres of placer ground. The location of the defendants in error was prior in point of time, having been made on the 5th day of January, 1906; the ground then staked by them being 1,320 *294 feet wide by a mile long, on Wildcat Creek, a tributary of Treasure…