(1) Whether Belk's relocation was valid as against everybody but the original locators, his entry being peaceable and without force; (2) Whether, if Belk's relocation was invalid when made, it became effectual in law on the 1st of January, 1877, when the original claims lapsed; (3) Whether, even if the relocation of Belk was invalid, Meagher could, after the 1st of January, 1877, make a relocation which would give him, as against Belk, an exclusive right to the possession and enjoyment of the property, the entry for that purpose being made peaceably and without force. All three propositions were resolved against Belk, the court holding that he had made no such location as prevented the lands from being in law vacant, and that others had the right to enter for the purpose of taking them up, if it could be done peaceably and without force. His possession might have been such as would have enabled him to bring an action of trespass against one who entered without any color of right, but it was not enough to prevent an entry peaceably and in good faith for the purpose of securing a right under the acts of congress to the exclusive possession and enjoyment of the property. This doctrine was held not to be in conflict with the rule announced by the same. court in Atherton v. Fowler,' cited in a preceding section, wherein it was determined that a right of pre-emption. could not be established by a forcible intrusion upon the possession of one who had already settled upon, improved, and inclosed the property. The controlling force of the doctrine of Belk v. Meagher has been abundantly recognized by the courts since its promulgation.2 196 U. S. 513. 2 Noyes v. Black, 4 Mont. 527; Hopkins v. Noyes, Id. 550; Sweet v. Weber, 7 Colo. 443; Horswell v. Ruiz, 67 Cal. 111; Russell v. Hoyt, 4 Mont. 412; Du Prat v. James, 65 Cal. 555; Russell v. Brosseau, Id. 605; Garthe v. Hart, 73 Cal. 541. A similar doctrine had been previously announced by Judge Deady, United States district judge, in Oregon,1 where a location of mining ground in the possession of Chinese was upheld, on the theory that this class of aliens could acquire no rights by location, purchase, or occupancy upon the mineral lands of the public domain. As was said by the supreme court of Montana, "Possession within a mining district, to be protected "or to give vitality to a title, must be in pursuance of the "law and the local rules and regulations. Possession, in "order to be available, must be properly supported. . "The mere naked possession of a mining claim upon the public lands is not sufficient to hold such claim against a subsequent location made in pursuance of the law, and 'kept alive by a compliance therewith."" The right of possession comes only from a valid location.3 Possession is good as against mere intruders; but it is not good as against one who has complied with the mining laws.1 Several cases appear in the reports which might be construed to be not entirely in harmony with the rule announced in the foregoing cases. Some of them recognize the doctrine as to all ground not covered by the pedis possessio. Others do not mention the element of force as entitled to controlling weight in determining the question. In most of these cases the statement of facts upon which the decisions are based is very meager, and we are therefore unable to say to what extent, if at all, any of them. repudiate the doctrine of Belk v. Meagher. Be that as it may, it cannot be denied that if there is any conflict. between the decisions here referred to and the doctrine. announced by the supreme court of the United States, they must, to the extent of such conflict, be disregarded. 1 Chapman v. Toy Lung, 4 Saw. 23. Eilers v. Boatman, 3 Utah, 159; Armstrong v. Lower, 6 Colo. 581; Weise v. Barker, 7 Colo. 178; Lebanon M. Co. v. Con. Rep. M. Co., 6 Colo. 380; Faxon v. Barnard, 4 Fed. 702; North Noonday v. Orient, 6 Saw. 507. 219. Conclusions. We are justified in deducing the following general rules upon the subject under discussion: (1) Actual possession of a tract of public mineral land is valid as against a mere intruder, or one having no higher or better right than the prior occupant; (2) No mining right or title can be initiated by a violent. or forcible invasion of another's actual occupancy; (3) If a party goes upon the mineral lands of the United States and either establishes a settlement or works thereon. without complying with the requirements of the mining laws, and relies exclusively upon his possession or work, a second party who locates peaceably a mining claim covering any portion of the same ground, and in all respects complies with the requirements of the mining laws, then such second party is entitled to the possession of such mineral ground to the extent of his location as against the prior occupant, who is, from the time said second party has perfected his location and complied with the law, a trespasser.1 The peaceable adverse entry by the locator, coupled with the perfection of his location, operates in law as an ouster of the prior occupant. In some of the states laws are enacted protecting the right of a discoverer upon the public mineral lands for a limited period of time, to enable him to perfect his location. Where no such local statutes are in force, according to the current of authority, by the policy of the law a reasonable time is allowed to such discoverer to complete his appropriation. During such periods the possession or occupation of the discoverer will be protected as against subsequent locators. This subject will be fully considered in another portion of this treatise and the application of the doctrines above enunciated to such cases will there be fully explained. 'This is substantially the charge to the jury upheld in Horswell v. Ruiz, 67 Cal. 111. 2 Belk v. Meagher, 3 Mont. 65, 80. CHAPTER IV. OF THE PERSONS WHO MAY ACQUIRE RIGHTS TO PUBLIC MINERAL LANDS. ARTICLE I. CITIZENS. II. ALIENS. III. GENERAL PROPERTY RIGHTS OF ALIENS IN THE STATES. TORIES. ARTICLE I. CITIZENS. 223. Only citizens, or those who have declared their intention to become such, may locate mining claims. 224. Who are citizens. ? 225. Minors. 226. Domestic corporations. 227. Citizenship, how proved. § 223. Only citizens, or those who have declared their intention to become such, may locate mining claims.— As the paramount proprietor of its public domain, the United States has not only the right to regulate the terms and conditions under which it may be disposed of, but it is also its privilege to designate the persons who may be the recipient of its bounty, and prescribe the qualifications of those why may acquire and enjoy permanent estates on its lands. In the exercise of this privilege, it has ordained that, "All valuable mineral deposits in lands belonging to the "United States, both surveyed and unsurveyed, are hereby "declared to be free and open to exploration and purchase, " and the lands in which they are found to occupation and "purchase, by citizens of the United States, and those who "have declared their intention to become such, under regulations prescribed by law, and according to the local "customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent "with the laws of the United States." 1 Therefore, to lawfully locate and hold a mining claim, the locator must be either a citizen of the United States or he must have declared his intention to become such in the manner provided by the naturalization laws of congress. As to who may attack a location made by an alien, and how it may be attacked, will be fully considered in a succeeding section. We here state simply the abstract rule of law. 224. Who are citizens. It is hardly within the legitimate scope of this treatise to exhaustively discuss the law of citizenship. But as introductory to the presentation of the law governing the qualifications of locators of mining claims, and the effect of alienage upon the validity of titles during the various stages of transmission from the government, as the primary source, to the ultimate grantee, we are justified in presenting in general outline the laws of congress upon the subject, and the decisions of the courts construing them in cases arising under the mining laws. The fourteenth amendment to the constitution of the United States provides that, "All persons born or naturalized in the United States, "and subject to the jurisdiction thereof, are citizens of the "United States and of the state wherein they reside." The clause "subject to the jurisdiction of the United "States" means completely subject to the political jurisdiction of the United States, and owing them direct and immediate allegiance. They may be citizens of the United States without being citizens of any particular state.3 1 Rev. Stats., 2319. 2 Elk v. Wilkins, 112 U. S. 94: Slaughterhouse Cases, 16 Wall. 36; Strauder v. West Virginia, 100 U. S. 303. 3 Slaughterhouse Cases, 16 Wall. 36; United States v. Cruikshank, 92 U. S. 542. |