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A placer location made prior to the act of Aug. 4, 1892, of land chiefly valuable for a deposit of glass sand and building stone, is not a legal appropriation, and a subsequent intervening homestead entry of another will defeat the right of the placer claimant to perfect his claim under said act. Florence D. Delaney, 17 L. D. 120 (1893).

Land containing a ledge of limestone may not be located as a lode claim. To exclude land from agricultural entry on the ground that it contains a valuable bed of limestone, it must appear affirmatively that it is more valuable on account of the stone than for agricultural purposes. Long v. Isaksen, 23 L. D. 353 (1896); Wheeler v. Smith, 23 L. D. 395 (1896).

II. WHO MAY LOCATE A MINING CLAIM.

A. Citizenship of the United States the Essential Requisite. The mineral deposits upon the land belonging to the United States are open to location only by citizens and those who have declared their intention to become such. Rev. Stats. 2319.

What shall constitute proof of such citizenship is provided by Rev. Stats. 2321. The provisions of this section apply to litigation in the courts as well as to applications in the Land Office.

A location by an alien is void. But it may be validated by subsequent naturalization, in which case the location will date from the declaration of intention, and not from the making the location. It follows, therefore, that work done previously to the declaration of intention will enure to the benefit of the locator, but will not cut out intervening rights. And it is submitted, though it has been doubted, that a location by an alien may, if no other rights intervene, be validated by a bona fide conveyance to a citizen who takes possession and continues to perform the requirements of the laws; not so, however, if the conveyance is collusive.

The fact of citizenship is an essential to the validity of the location, and must be affirmatively proved by one who alleges a location, and its decision is a question for the jury. The presumption is that when the locator was a resident of the United States, he was at the time a citizen.

It has recently been held in the Court of Appeals of the Eighth Circuit that want of citizenship of a locator cannot be set up by any one except the United States. This decision is based upon the general rule that the right to defeat a title to realty on the ground of alienage is reserved only to the sovereign; and if the

case is not confined to its facts, and the principle laid down prevails, the result will be that ground located by an alien cannot be relocated until he has been deprived of his title by some act of the government, which ordinarily will not occur until there has been an application for a patent, and it becomes necessary for him to establish his right either as applicant or adverse claimant. In actions for the possession of unpatented claims, therefore, the want of citizenship would no longer figure.

Where the locator is a corporation, the members must all be severally qualified to make a location. It is consequently void if any of them is an alien. But where several persons have made a joint location, and one of them is an alien, the location is not entirely void, but only as to the interest of the alien. Though an alien may not locate a claim, he is not debarred by the above sections of the Revised Statutes from holding a claim acquired from a locator properly qualified.1 Nor, consequently, is a corporation with alien stockholders, nor a foreign corporation, unless otherwise disqualified. The alien's title then arises by virtue of the conveyance, and his incapacity to hold the claim can only be objected to by the government. Such objection can, therefore, be raised upon his application for a patent, or upon an adverse claim to such application. But naturalization pending proceedings for a patent or on an adverse claim removes this objection.

Mineral entries will not be permitted by citizens who are mere agents of foreign corporations, or under contract to convey to such on obtaining patents.

North Noonday M. Co. v. Orient M. Co., 1 Fed. United States. 522 (1880), C. C. D. Cal. If an alien performs all the acts necessary to make a valid location, and does the work necessary to keep the claim good, and then conveys the claim to a citizen who takes possession and continues to perform all the conditions required by law to hold such claim, such citizen acquires a valid title as against all persons who have not acquired rights before the conveyance.

If an alien and a citizen jointly locate a claim not exceeding the amount of ground allowed by law to one locator, such location is valid as to the citizen, and a conveyance from both to a citizen gives a valid title.

A corporation organized and existing under the laws of a State is to be deemed a citizen within the meaning of the statute, and as such is competent to purchase and hold a mining claim.2

1 Idaho, Act March 2, 1891, p. 119; v. Chisholm, below, for different statement Montana, Const. 3, 25.

2 See McKinley v. Wheeler and Thomas

of this rule.

North Noonday M. Co. v. Orient M. Co., 11 Fed. 125; s. c. 6 Sawy. 503 (1880), C. C. D. Cal. Same case on motion for a new trial.

The affidavit provided for in Rev. Stats. 2321 may be upon information and belief. The provisions of this section are not limited to the application in the Land Office for a patent. They apply to the litigation of all claims arising under the act, whether in the department or in the courts.

Croesus M. Co. v. Colo. L. & M. Co., 19 Fed. 78 (1884), C. C. D. Colo. Upon declaring his intention to become a citizen, an alien may have advantage of work previously done, and of a record previously made by him in locating a mining claim on the public mineral lands, provided no other rights have intervened. What he had done towards locating the claim accrued to him as of the date of his declaration of intention.

Wood v. Aspen Mining & Smelting Co., 36 Fed. 25 (1888), C. C. D. Colo. William J. Wood, the locator of a mine in controversy, was born in Canada, where he lived until 1870, when he moved to Kansas, leaving his wife and children in Canada. It appeared that an entry of public lands had been made in Kansas by a William Wood, who made oath at the time that he was a citizen, the head of a family, consisting of a wife and seven children, and that he and his family had resided on the land from September, 1870, to April, 1871. A witness testified that he saw naturalization papers issued in Kansas in such locator's possession, but no record of such papers could be found in that State. Held, that the locator's title to the mine being of recent origin, the evidence of his citizenship was insufficient to support the same.

O'Reilly v. Campbell, 116, 418 (1885). Action on adverse claim. "Had the objection been taken in the court below that citizenship of the plaintiffs had not been shown, it might, if not obviated, have been fatal. There is, however, nothing in the record to show that it was raised below. Proof of citizenship in proceedings of this kind may consist, in the case of an individual, of his own affidavit thereof, and in the case of an association of persons unincorporated, of the affidavit of their authorized agent, made upon his own knowledge, or upon information and belief. Rev. Stats., sec. 2321. The objection to the want of proof of that fact, if taken below, might have been met at once, if indeed the plaintiffs are citizens. The rule is general that an objection which might be thus met must be taken at the trial, or it will be considered as waived, except as to matters going to the jurisdiction of the court. The parties to this controversy own adjoining claims, and it is probable that the citizenship of each was known to the other, and therefore no proof on the subject was required. Be that, however, as it may, the objection in actions of this kind cannot be taken in this court for the first time." Field, J.

Hammer v. Garfield M. Co., 130, 291 (1889), affirming s. c. 6 Mont. 53. The oath of one of the locators of a mining claim accompanying the recorded notice of the location is, in the absence of contradiction, prima facie evidence of the fact of the citizenship of all the locators.

McKinley v. Wheeler, 130, 630 (1889). A corporation, created under the laws of one of the States of the Union, all of whose members are citizens of the United States, is competent to locate or join

in the location of a mining claim upon the public lands of the United States in like manner as individual citizens.

Billings v. Aspen M. & S. Co., 51 Fed. 338 (1892), C. C. App. 8th Circ. An alien who in conjunction with others has expended time, money, and labor in exploring for and locating a mining claim, may hold his interest, or recover the same if deprived thereof, as against his co-locators. No one can set up his want of citizenship except the United States.

Billings v. Aspen M. & S. Co., 52 Fed. 250, C. C. App. 8th Circ. (1892). Rehearing denied.

Persons other than the government can raise the question of the citizenship of a locator as mineral claimant only when he is seeking to obtain a patent for his claim. In that case he is required to prove his citizenship by Rev. Stats. 2,325. O'Reilly v. Campbell, 116 U. S. 418, distinguished on this ground.

Even if this is erroneous, it is unimportant, as it is found as a fact that the locator had declared his intention to become a citizen.

Manuel v. Wulff, 152, 505 (1894), reversing s. c. 9 Mont. 279. If in a contest under Rev. Stats. 2,326 one party who is an alien at the outset becomes a citizen during the proceedings and before judgment, his disability to take title under Rev. Stats. 2,319 is thereby removed. "We do not think that the transfer of a mining claim by a qualified locator to an alien is to be treated as ipso facto an abandonment, or that the analogy of such a case to the casting of descent upon an alien can be maintained."

"As M. was a citizen, if his location were valid his claim passed to his grantee, not by operation of law, but by virtue of his conveyance; and the incapacity of the latter to take and hold by reason of alienage was, under the circumstances, open to question by the government only."

Jantzen v. Arizona Copper Co., 20 Pac. 93 (1889). It

Arizona. will be presumed that a resident of the United States who has made a mining location, was a citizen at the time.

Ferguson v. Neville, 61, 356 (1882). Rev. Stats. 2319 California. does not prevent an alien from purchasing a mining

claim from one who, being a citizen of the United States, located the claim according to provisions of the act of Congress. The title having passed from the United States to the locator, the latter had a right to make any sale or disposition of the property not inconsistent with the laws of the State.

Lee Doon v. Tesh, 68, 43 (1885). In an action brought by several adverse claimants, in pursuance of Rev. Stats. 2326, to determine the right of possession to a mining claim, the complaint must allege that the plaintiffs are, or have declared their intention to become, citizens. If the complaint alleges one of the plaintiffs to be a citizen, and contains no allegations as to the citizenship of the others, the action should be dismissed as to the latter.

No title to mining claims on the public lands acquired by location, occupancy, and working prior to 1866 was or is valid as against the United States or its grantees. As against the government, such occupants were trespassers, and, not being citizens or having declared

their intention to become such, had no rights to be protected by the act of 1872.

Anthony v. Jillson, 83, 296 (1890). One who is not a citizen of the United States, and has not declared his intention to become such, cannot make a valid location of public mineral land. So held of one who filed his declaration of intention the day after he attempted to make a location.

Persons claiming right to a patent under Rev. Stats. 2,332, on ground of possession, must show citizenship.

Jackson v. Dines, 13, 90 (1889). In an action against a Colorado. railroad company for damages for taking part of a mining claim, a complaint, showing plaintiff's possession and defendant's entry without permission and injury to the soil and timber, is sufficient. In such an action averment of citizenship by plaintiff is unnecessary, nor is he bound to show this fact unless its want is objected to by the defendant at such time and in such a way as to give him an opportunity to meet the objection.

Thomas v. Chisholm, 13, 105 (1889). A corporation organized under the laws of the United States, or of some State or Territory, may make a valid location of a mining claim, provided the members are all citizens of the United States, and severally qualified to make a location. In a proceeding on an adverse claim, a party basing his title upon a location by a corporation must allege and prove the organization of the corporation and the qualification of its members. McKinley v. Wheeler (supra) followed.

Lee v. Justice M. Co., 29 Pac. 1020 (1892). Where a location is invalid because the locator is an alien, it does not acquire validity by conveyance to a citizen. The conveyance here was without consideration, and collusive.1

Bohanon v. Howe, 2, 417; 17 Pac. 583 (1888). In an

Idaho. action for trespass upon mining ground where the legal title is in the United States, and the plaintiff's right is founded on a possessory title, he must allege and prove his citizenship.

Territory v. Lee, 2, 124 (1874). A mining claim, havMontana. ing been properly located, may be conveyed to and held by an alien, and the act of the territorial legislature "to provide for the forfeiture to the Territory of placer mines held by aliens," is unauthorized either by the act of Congress or by the Organic Act of the Territory.

An alien cannot hold a mining Rev. Stats. 2319 opens the domain to occupation and

Tibbitts v. Ah Tong, 4, 536 (1883). claim purchased by him from the locator. unappropriated mineral lands of the public purchase by citizens only. An alien is thereunder incompetent to purchase those lands of the government. As location is the initial step to purchase, giving only a possessory title, which becomes complete upon the issuance of the patent, no one can hold a location who is incompetent to complete that title.2

Garfield M. & M. Co. v. Hammer, 6, 53 (1886), affirmed in 130 U. S. 291. The right to the possession of a mining claim is derived 1 This case has been reversed on an- 2 Manuel v. Wulff, supra, to the conother point. trary.

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