we find differences of opinion, diversity of views, and inharmonious conclusions.

This follows necessarily from the fact that the courts of each state act independently of the courts of other states. While all are called upon to construe the same laws in controversies between individuals arising out of rights. asserted in public mineral lands, and to a limited degree in their several jurisdictions are auxiliary to the land department in administering these laws, yet no one state is bound by the rules announced by another. Results are reached on independent lines of reasoning. A rule of interpretation announced in one state is directly negatived in another; in still another, the rule is accepted in a modified form. Such questions are essentially federal in their nature, and will remain so until the supreme court of the United States finally decides them. But until such ultimate determination is reached, each state is at liberty to construe these laws according to the dictates of its own reason and judgment. Hence the lack of uniformity in the adjudicated law. We shall encounter this unsatisfactory state of affairs in attempting to solve many of the serious problems arising out of the application of these laws to the varied conditions existing in different sections of the mining regions, and we cannot hope in all instances to arrive at correct results. But where we encounter these conflicts of opinion in courts of equal responsibility and learning, we do not think our duty to the profession permits us to rest with a mere statement of the conflicting

It will be our endeavor to reach the correct rule, even if in doing so we are compelled to go to the original sources of the law. We are not permitted to arbitrarily announce approval of the decisions of one state or the disapproval of those of another. This would not add to the weight of the decision which meets with our concurrence, nor detract from the value of the one with which we disagree; and unless we are able to found our judgment in logical reasoning, our conclusions will be of no moment. With these preliminary suggestions, we proceed with our

investigations, subdividing the questions involved into different elements, for the purpose of convenient treatment, without regard to the order in which we have heretofore suggested the inquiries involved.

2232. The effect of naturalization of an alien upon a location made by him at a time when he occupied the status of an alien.-Let us first consider what effect the act of naturalization has upon the estate, if any, acquired by an alien by virtue of a discovery and location of public mineral lands, in all respects valid, except as affected by the alienage of the locator. Let us examine the adjudicated cases on this and analagous subjects, commencing with the rulings of the land department. We note the decisions of the executive department, arranged in chronological order:

:

"Naturalization has a retroactive effect, so as to be "deemed a waiver of all liability to forfeiture and a con"firmation of the alien's former title."1

"A foreigner may make a mining location and dispose "of it, providing he becomes a citizen before disposing of "the mine.""

"Naturalization has a retroactive effect, so as to be "deemed a waiver of all liability to forfeiture and a con"firmation of his former title." 3

An alien having made a homestead entry, and subsequently filed his intention to become a citizen, it is held that, in the absence of an adverse claim, the alienage at the time of entry will not defeat the right of purchase.1

An alien can acquire no right to public land before filing a declaration of intention to become a citizen, and his subsequent qualification will not relate back so as to defeat an intervening right.

1 Cash Lode, 1 Copp's L. O. 97.

2 Kempton Mine, Id. 178.

3 In re Wm. S. Wood, 3 Copp's L. O. 69.

Ole Krogstad, 4 L. D. 564.

This was the case of a pre

5 Titamore v. S. P. R. R., 10 L. D. 463. emption filing within railroad indemnity limits.

In the case of Wulff v. Manuel,' Judge De Witt, speaking for the supreme court of Montana, in an able opinion, took the extreme view that an alien could not take title by purchase from a citizen locator, and therefore the subsequent naturalization (during a trial involving the alien's right to a patent in a suit upon an adverse claim) could not retroact in favor of such alien. We shall have occasion to refer particularly to this case and the reasoning of the distinguished judge when dealing with the nature of the title acquired and held by an alien locator. Undoubtedly, entertaining these views in the case of a purchase by an alien from a citizen locator, the supreme court of Montana would have announced in the hypothetical case under consideration that naturalization could not retroact in favor of an alien locator.

The supreme court of New York has held that naturalization gives the alien all the rights of a natural-born citizen; he thereby becomes capable of receiving property by descent, and of transmitting it in the same way. It also has a retroactive operation, and lands purchased by an alien who is afterwards naturalized may be held by him and transmitted by him in the same manner as lands acquired after naturalization."

The same rule is recognized in Alabama.3

Judge Hallett announced his views that, in the absence of any intervening rights, upon declaring his intention to become a citizen of the United States, an alien locator may have the advantage of work previously done and of a record previously made by him in locating a mining claim on the public mineral lands.1

And the late Judge Sawyer held that if a locator, even though not a citizen, performed all the acts necessary to make a valid location, and did the work necessary to keep his claim good had he been a citizen, until he conveys to a

19 Mont. 279.

2 Jackson ex dem. Doran v. Green, 7 Wend. 333.

3 Harvey v. State, 40 Ala. 689.

Croesus M. &. M. Co. v. Colo. L. & M. Co., 19 Fed. 78.

citizen, such citizen grantee, taking possession and control, keeping up the monuments and markings, and performing the necessary conditions to keep the claim good, acquires a good and valid right to the claim as against those asserting rights subsequent to such conveyance.1

The supreme court of the United States has frequently held that if an alien holding under a purchase becomes a citizen before "office found," that the act of naturalization retroacts to the original acquirement of title, and perfects the title in the alien.2

In accordance with this doctrine, that tribunal has held, reversing the supreme court of Montana, that in the case of a purchase by an alien from a qualified locator, the subsequent naturalization retroacted in his favor, removed the infirmity, and entitled him to a patent. The case in which this rule was established involved the right to a patent, the action being instituted under section twentythree hundred and twenty-six of the Revised Statutes, in which form of action citizenship of the applicant for patent was necessarily involved.

As to the effect of subsequent naturalization upon the title of an original alien locator, while the interest acquired by such location remains in the alien, the supreme court has as yet not determined.

We will reserve the conclusions to be deduced from the foregoing review of authorities until we shall have discussed other important questions arising out of the alienage of locators or purchasers from citizens. Almost all these problems are intimately blended, and it is difficult to isolate them or treat them independently. Our conclusions will be found grouped in section two hundred and thirtyfour.

1 North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 315.

Wulff v. Manuel, 9 Mont. 279, (citing Osterman v. Baldwin, 6 Wall. 122; Craig v. Radford, 3 Wheat. 594; Fairfax v. Hunter, 7 Cranch, 607; Governeur v. Robertson, 11 Wheat. 322).

3 Manuel v. Wulff, 152 U. S. 505.

§ 233. What is the legal status of a title to a mining claim located and held by an alien who has not declared his intention to become a citizen?-In the hands of a citizen locator, the estate acquired by a perfected valid location is property in the highest sense of the term; it may be conveyed, mortgaged, taxed, sold on execution, is descendible to heirs, and may be the subject of devise. It is an estate acquired by purchase. Washburn, in his treatise on real property, says:

46

"In one thing all writers agree, and that is, in consid"ering that there are two modes only, regarded as classes, of acquiring title to land—namely, descent and purchase,"purchase including every mode of acquisition known to "the law, except that by which an heir on the death of an ancestor becomes substituted in his place as owner by the "" 1 act of the law."

66

66

"Purchase [said Lord Coke] includes every other method "of coming to an estate but merely that by an inheritance, "wherein the title is vested in a person, not by his own act "or agreement, but by single operation of law.""

Purchase denotes any means of acquiring an estate out of the common course of inheritance.3

'Certainly, [said the supreme court of Montana,] no one "would contend that when a person locates mining ground "he acquires a right to the same by descent. He must acquire it, then, by purchase."4

But the same court held in a case where an alien purchaser from a citizen locator was endeavoring to obtain a patent (having been naturalized during the trial and prior to judgment), that the parallel of the alien heir claiming by descent and the alien miner claiming under the mining laws was complete as to the principle under consideration, and that such alien was not entitled to hold the estate purchased. In fact, he took nothing. This 13 Washburn on Real Property, 4.

5

2 Co. Litt. 18, cited in 2 Black. Com. 241; 2 Bouvier's Law Dict. 403. 32 Black. Com. 242.

'Meyendorf v. Frohner, 3 Mont. 282, 320.

5 Wulff v. Manuel, 9 Mont. 279.