or territory thereof; nor is the character, capacity, or citizenship of the organization, or of any of its constituent members, or of Joseph Hudson, in any manner set forth in the answer. The verdict and judgment were in favor of the defendants, and plaintiffs bring the case to this court by writ of error.

The principal question submitted for our determination is: can a corporation organized under the laws of the United States, or some State or territory thereof, make a valid location of a mining claim? At the time of the submission of this cause in this court there had not been an authoritative determination of this question; but we regard the opinion recently delivered by the Supreme Court of the United States in the case of McKinley v. Wheeler, 9 Sup. Ct. Rep. 638, as decisive of the question. In that case the plaintiff, McKinley, based his title in part upon a location made by a corporation, all the members of which were citizens of the United States, and were severally and individually qualified and competent to enter upon the public domain, and acquire title to mineral lands upon it by discovery and location. The complaint showed these facts. The defendants demurred to the complaint on the ground that the corporation could not make a valid location.

Mr. Justice FIELD, delivering the opinion of the court,

says:

"Section 2319 of the Revised Statutes must be held not to preclude a private corporation formed under the laws of the State, whose members are citizens of the United States, from locating a mining claim on the public lands of the United States."

It is quite unnecessary to repeat, as it would be quite impossible to improve upon, the reasoning by which the learned jurist arrives at the conclusion above stated. Defendants in the case at bar, having recovered a general verdict in their favor, the judgment thereon must be reversed, unless the title of defendants to the ground in controversy was legally established according to the act of Congress of March 3, 1881, amending Section 2326, Rev. St. U. S., Since that amendment both parties in adverse proceedings are to be regarded as actors, and a defendant can not rely upon the

weakness of the plaintiff's title, as in ordinary ejectment cases. Consequently, in this action, defendants could not recover a valid verdict and judgment in their own favor without showing compliance with the requirements of the statutes, State and Federal, such as would entitle them to a patent from the United States: McGinnis v. Egbert, 8 Colo. 41, 5 Pac. Rep. 652; Becker v. Pugh, 9 Colo. 589, 13 Pac. Rep. 906; Manning v. Strehlow, 11 Colo. 451, 18 Pac. Rep. 625. It follows, therefore, that defendants, in so far as they rely upon an entry and location by a corporation, must, before they are entitled to such a verdict and judgment as they obtained, aver that the corporation was organized under the laws of the United States, or of some State or territory thereof, and that the members of such corporation were citizens of the United States, and severally and individually qualified and competent to make the location. As to what might amount to prima facie proof of citizenship in a case of this kind, in view of Section 2321, Rev. St. U. S., we intimate no opinion: McKinley v. Wheeler, supra; Lee Doon v. Tesh, 68 Cal. 43, 6 Pac. 97 and 8 Pac. 621; North Noonday Co. v. Orient Co., 1 Fed. 522. The allegations of defendants' answer are defective in the necessary averments as to the organization of the corporation, and the citizenship of the members thereof. The certificate of incorporation. offered in evidence by defendants should not have been received over plaintiffs' objection, in the absence of proper averments in the answer. The objection to the capacity of the corporation under whom defendants claimed title to make a valid location is not raised for the first time in this court, but was made and relied upon at the trial substantially, though not precisely, as here considered. Under the authorities the objection was well taken, and it was error to overrule it: O'Reilly v. Campbell, 116 U. S. 418; Jackson v. Dines, 13 Colo. 90. The judgment of the District Court is reversed and the cause remanded, with leave to the parties to amend their pleadings, and for further proceedings in accordance with this opinion.

Reversed.

2

HAMMER V. GARFIELD MINING AND MILLING CO.

(130 United States, 291; 9 S. C. Rep. 548. Supreme Court, 1889.) When an equity case is tried as an action at law, by calling a jury and examining witnesses before them, their verdict will be treated the same as if it were a finding by the court. It is not reversible practice and the only errors to be considered are such, if any, as exist in the reception of evidence or in the charge.

Proof of corporate existence. A copy of its Articles of Association certified by the Secretary of State is " properly authenticated" for filing in a foreign State, under a statute requiring in general terms an authenticated copy to be filed.

Vauge call upheld. A location certificate whose only call for natural objects or permanent monuments as required by the act were the words "about fifteen hundred feet south of Vaughn's Little Jennie Mine:" Held, to contain a sufficiently definite description. Presumption that the tie is valid. The tie called for in a location certificate will be presumed to be a well known natural object or permanent monument until proof is made to the contrary. 'Absence of convenient ties-Description by the claim's own stakes. The provision in Rev. Stat. Sec. 2324, that records of mining claims shall contain such "reference to some natural object or permanent monument as will identify the claim," means only that this is to be done when such reference can be made; and when it can not be made, stakes driven into the ground are sufficient for identification, or a reference to a neighboring mine, with distance and date of location, which will be presumed to be a well known natural object in the absence of contradictory proof.

The statutory verification to the location certificate is prima facie evidence of the citizenship of all the locators.

What is prima facie case. In an action to quiet title to a nining claim, plaintiff having proved a location and record with prior possession, has made a prima facie case only to be overcome by proof that his title so gained has been by some means divested or that a better title exists in the defendant.

The burden of proving forfeiture by failure to do annual labor is on the party asserting the forfeiture; and the proof of the forfeiture must be clear and convincing.

Error to the Supreme Court of the Territory of Montana.

E. W. TOOLE and J. K. TOOLE, for plaintiff in error.

EPPA HUNTON, for defendant in error.

'Taylor v. Middleton, 8 Pac. 594; 67 Cal. 656; Metcalf v. Prescott, 16 M. R. 137.

2 O'Reilly v. Campbell, 116 U. S. 420.

FIELD, J.

This was a suit to quiet the title of the plaintiff below, the Garfield Mining & Milling Company, to a lode mining claim in Montana. It was brought under an act of the territory providing for an action by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest. Comp. St. 1887, § 366. The complaint alleges that the plaintiff is a corporation organized and existing under the laws of the State of New York, for the purpose of carrying on the business of mining and milling ores bearing gold, silver, and other precious metals, in Montana; and that it has complied with all the laws of the territory relative to foreign corporations; that it is the owner of a certain quartz lode in the county of Lewis and Clarke, in the territory, known as the "Garfield" lode or mining claim, which has been surveyed, and is designated upon the records of the office of the United States surveyor general of the territory, and contains an area of 20 acres and 62-100 of an acre, the metes and bounds of which are given; that the plaintiff and its predecessors in interest have been in the possession of and entitled to the lode ever since its discovery and location; that, notwithstanding its right to the possession, the defendant below (the plaintiff in error here), Auge O. Hammer, on or about the 1st of January, 1883, assumed to enter upon the premises and relocate the same, and caused the relocation to be recorded in the records of the county under the name of the "Kinna Lode;" that he pretends to claim an interest or estate therein adversely to the plaintiff, and has made application to the United States land office at Helena, in the territory, for a patent, therefor; that the plaintiff has duly filed in that office its adverse claim to the premises, setting forth its nature and origin; and that the proceedings in the land office have been stayed until the final determination by the court of the right of possession to the premises.

Two other persons, by the names of Kinna and Bliss, are also made defendants, who, it is averred, assert some

claim to the premises by a relocation at the same time with the defendant Hammer. The complaint alleges that the claims of all the defendants are without right, and that no one of them has any estate or interest in the mining ground, nor in any part thereof. The prayer of the complaint is:

(1) That the defendants may be required to set forth the nature of their respective claims, and that all adverse claims be determined by a decree of the court;

(2) That by such decree it be declared and adjudged that the defendants have not, nor has any of them, any interest or estate in or right to the possession of the premises, or any part thereof, and that the title of the plaintiff to the same is good and valid, and that it is entitled to their possession; and

(3) That the defendants be forever debarred from asserting any claim whatever to the premises, or any part thereof.

All the defendants filed demurrers to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The defendant Hammer withdrew his demurrer, and filed an answer. It does not appear from the record what disposition was made of the demurrer of the defendants Kinna and Bliss, but as they do not appear to have taken any further part in the defense of the action, and are not mentioned in the judgment or in the appeal taken to the Supreme Court of the Territory, it may be presumed that the action was discontinued as to them.

The answer of Hammer denies that the plaintiff is the owner of the lode described in the complaint, or of any part of it; or that it is now, or has been for a long time, in possession thereof, or of any part thereof; or that it or its predecessors in interest have ever since the discovery and location thereof been in possession of it, or of any part thereof, or entitled to the possession thereof; or that the defendant at any time assumed to relocate the premises, and to cause the relocation to be recorded in the records of the county; or that his claim is without right. The answer also sets up that on the 1st of January, 1883, one Iner Wolf entered upon the premises described, the same being then vacant mineral land of the United States, and discovered thereon a vein or lode of quartz, bearing silver and other precious