Under this section, the land department holds that a properly authenticated certificate of incorporation filed by a corporation that is applying for a mineral patent is sufficient proof of citizenship.'

It is not within the power of the land department to determine whether such corporation is authorized under its charter to acquire patent for mineral lands."

Where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable, and the sovereign (i. e. the state to which it owes its existence) alone can object. It is valid until assailed in a direct proceeding for that purpose.3

The supreme court of Montana has held that the fact that an alien owns stock in a corporation which has acquired title to mining claims does not disturb the title of the corporation to such claims.'

If it be true that all of the stockholders of a domestic corporation seeking to locate public mineral lands must be citizens, as may be inferred from the ruling of the supreme court of the United States, then a properly authenticated certificate of such corporation is conclusive evidence of such citizenship.

We think we are justified in deducing the rule that within the states domestic corporations may locate and hold mining claims, and that an inquiry as to the citizenship of the stockholders is not permitted, for the simple. reason that such citizenship is conclusively presumed. As to the status of such corporations in the territories, we will have occasion to investigate it in a subsequent section.

The supreme court of the United States has suggested the question as to the extent of ground which may be located by a corporation; that is, whether it will be treated

Rose Lode Claim, 22 L. D. 83; Silver King M. Co., 20 L. D. 116; Gen. Min. Circ., par. 76, (see appendix).

2 Rose Lode Claim, 22 L. D. 83.

3 National Bank v. Matthew, 98 U. S. 621, 628.

Princeton M. Co. v. First Nat. Bank, 7 Mont. 530.

5 Doe v. Waterloo M. Co., 70 Fed. 455; Ohio R. R. v. Wheeler, 1 Black, 286; Muller v. Dows, 94 U. S. 444.

as one person, and is entitled to locate only to the extent permitted to a single individual, or otherwise.'

We do not appreciate the embarrassments of the situation as to lode claims, as no one person or association of persons can locate by one location in excess of the statutory limit of fifteen hundred by six hundred feet of surface. As to placers, it might be considered as an association of persons, which it is, and be entitled to locate as such. one hundred and sixty acres, if it had eight stockholders, and they usually have many more. The suggested difficulty could be easily overcome by individual stockholders locating and transferring to the corporation. This is the usual method adopted.

227. Citizenship, how proved.-Citizenship may be proved like any other fact. It is a question for the jury.3

In proceedings before the land department, and in actions brought in the local courts under the sanction of the Revised Statutes to determine the right of possession, the judgment in such actions being advisory to the land department, the law provides that proof of citizenship may consist, in the case of an individual, of his own affidavit thereof; in the case of an association of persons unincorporated, by the affidavit of their authorized agent, made on his own knowledge, or upon information and belief; and in the case of a corporation organized under the laws of the United States, or of any state or territory thereof, by the filing of a certified copy of their charter or certificate of incorporation. However, proof by affidavit is not the only method of establishing citizenship." It may be established by any other competent legal evidence. In fact, in the case of naturalized citizens, some of the courts have insisted that exemplifications of the record of naturalizaMcKinley v. Wheeler, 130 U. S. 630.

"Thompson v. Spray, 72 Cal. 528.

3 Golden Fleece M. Co. v. Cable Cons., 12 Nev. 313.

5 Rev. Stats., 2321; North Noonday M. Co. v. Orient M. Co., 6 Saw. 503. 6 Thompson v. Spray, 72 Cal. 528.

tion should be produced,' or its loss accounted for, and the foundation laid for the introduction of secondary evidence. This is not the rule in the land department, however, which is governed entirely by the provisions of the Revised Statutes.2

In all actions between individuals disconnected with proceedings to obtain title under the federal mining laws, if we may admit that the question of citizenship could in any such action be properly the subject of inquiry,-a proposition we are not prepared to concede,-the rules of evidence prescribed by the several states would control. In such cases, we do not understand that an ex parte affidavit would be admissible. The opposing party could not be deprived of the right to cross-examine the witness by whose oath the fact of citizenship is sought to be proved.

It may be here noted, although we shall have occasion to again refer to the subject, that in proceedings before the land department upon applications for patents under the mining laws, proof of citizenship is not required of the original locators or intermediate owners, but of the applicant for patent or adverse claimants only."

It has been said that a presumption of citizenship arises from the fact of residence.

The supreme court of Arizona has held that

"It will be presumed that a man being a resident of the "United States, and who has made a mining location, was "a citizen of the United States, . . . where it appears "that he recorded at or near the time, a location notice "reciting these facts. Such evidence will make out a prima 'facie title."

This was on the assumption that a location notice, when recorded, is, by reason of the law authorizing or requiring the record, prima facie evidence of the facts therein cited,

1 Wood v. Aspen M. Co., 36 Fed. 25.

2 In re John Mooney, 3 Copp's L. O. 68; Circ. Instructions, Aug. 2, 1876, Id. 68; Id., Dec. 10, 1891, par. 76, (see appendix).

3 Cash Lode, 1 Copp's L. O. 97; City Rock & Utah v. Pitts, Id. 146; Wandering Boy, 2 Copp's L. 0. 2.

Jantzen v. Arizona C. Co., 20 Pac. 93, 94.

following the rule approved in Colorado,' and other states."

In the opinion of Judge Sawyer, in the class of proceedings provided for by the Revised Statutes,3 no presumptions of fact should be indulged in, but each party must establish his right by evidence. These presumptions, if properly considered to any extent, are, of course, disputable.

After patent or certificate of purchase has once issued, however, the citizenship of the patentee is conclusively presumed. This presumption arises from the accepted rule that the qualifications of an applicant for patent are necessarily involved in the inquiry made by the land department, and the patent, when issued, is a conclusive adjudication that the patentee possessed the status of a citizen."

We are of the opinion that, as between individuals, the question of the alienage of a locator or claimant of a mining claim can only arise in the proceedings brought before the land department upon application for patent, or in actions brought under section twenty-three hundred and twenty-six of the Revised Statutes. In all other classes of cases, it is not open to question. We have attempted to demonstrate this in a succeeding section."

1 Strepey v. Stark, 7 Colo. 614.

2 Flick v. Gold Hill M. Co., 8 Mont. 298; Dillon v. Bayliss, 11 Mont. 171; Brady v. Husby, 21 Nev. 453; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; Hammer v. Garfield M. & M. Co., 130 U. S. 291; Wood v. Aspen, 36 Fed. 25.

3 Rev. Stats., ? 2326.

Bay State S. M. Co. v. Brown, 10 Saw. 243.

5 Justice M. Co. v. Lee, 21 Colo. 260, overruling the decision of the court of appeals in the same case; Lee v. Justice M. Co., 2 Colo. Ct. App. 112.

See, post, 233.

ARTICLE II. ALIENS.

231. Acquisition of title to un- 233. What is the legal status of

2231. Acquisition of title to unpatented mining claims by aliens. As we have already seen, aliens who have not declared their intention to become citizens can not lawfully locate mining claims upon the public mineral domain. But it frequently occurs that such aliens do so locate such claims and transmit the title so acquired apparently the same as if this disqualification did not exist; and there are innumerable examples of aliens purchasing from citizen locators, and in turn transmitting the title so acquired to others. These facts suggest the following inquiries:

(1) What is the status of the title to a mining claim located and held by an alien?

(2) What estate may such alien transmit to another? (3) What is the effect of subsequent naturalization upon a location made at a time when the locator occupied the

status of an alien?

(4) What is the status of the title to a mining claim located and held jointly by an alien and a citizen?

In discussing these questions and others incidentally arising out of them, we shall encounter much difficulty in arriving at the true state of the law. The supreme court of the United States, the final arbiter of these problems, has cleared the atmosphere to a limited extent, but the proper solution of some of them remains in doubt, so far as direct adjudication is concerned. When we review the decisions of the courts of last resort in the several states,