compliance with local mining laws may be transferred from one to another, so long as it does not pass into the hands of one incapable of acquiring complete title, in which latter case the grant reverts to the government, and the land becomes subject to relocation.'

But the doctrine of this case was denied by the supreme court of the United States.2

In a case where alien Chinese were in possession of public mineral lands in Oregon, Judge Deady issued an injunction, at the suit of citizens who had located such lands while in the occupancy of the Chinese; but it does not appear from the report of the case that the Chinese claimed to be in possession under any location made by them or others through whom they entered. In addition, some stress was laid upon the inhibition of the constitution of that state, that "No Chinaman not a resident of the state at the adop"tion of this constitution shall ever hold any real estate or "mining claim, or work any mining claim therein."

In California, the question is incidentally discussed in several cases, brought under the provisions of section twenty-three hundred and twenty-six of the Revised Statutes, to determine a right to a patent. We quote from the opinion of that court:

66

66

"It would seem to follow that as the right to possession "and the right to a patent are made to depend upon citizenship, the complaint which forms the basis upon which "these rights are supported should show the plaintiffs to possess those qualifications without which the judgment "they seek and the consequences to flow from that judg"ment cannot be reached. Where a right is conferred upon "a particular class of persons, or by reason of possessing "some special qualification or status, he who claims such a "right must show himself to belong to the class designated "or to possess the qualification prescribed or the status "mentioned as the basis of the right.'

But the court was careful to add:

"We must not be understood as holding that in all actions. “in relation to mining claims it is necessary for plaintiffs

1 Tibbitts v. Ah Tong, 4 Mont. 536. 2 Manuel v. Wulff, 152 U. S. 505.

T

"to aver citizenship. We are discussing the requirements "of a complaint in the special case provided by the act "of congress to determine the right of possession of a mining claim under the laws of congress, in which the "successful party becomes entitled on the judgment-roll "to apply for patent- a case in which the parties must "connect themselves with the title of the government, and "show compliance with the acts of congress, and our con"clusions are limited to such action."

The action provided for by section twenty-three hundred and twenty-six of the Revised Statutes is undoubtedly equivalent in its legal effect to "inquest of office." Each party is called upon to establish his qualifications to receive patent, and the question of citizenship is a material

In this class of actions, the courts have generally insisted that citizenship of the litigating parties must be alleged, and, of course, proved."

In ordinary actions, some courts hold that this is not necessary. Others hold that in all classes of actions such citizenship must be averred. Still others dispense with the necessity of alleging, but insist upon its being proved."

The supreme court of the United States has decided that an objection to the alienage of a locator can not be taken for the first time in the appellate court. As this was a suit upon an adverse claim, citizenship should have been alleged in the pleadings.

Judge Sawyer has decided that the citizenship of a locator through whom a party litigant claimed must be

1 Lee Doon v. Tesh, on rehearing in bank, 68 Cal. 43. For opinion rendered by department, see 6 Pac. 97.

2 Jackson v. Dines, 13 Colo. 90; McFeters v. Pierson, 15 Colo. 201; Lee Doon v. Tesh, 68 Cal. 43; Keeler v. Trueman, 15 Colo. 143; Rosenthal v. Ives, 2 Idaho, 244.

3 McFeters v. Pierson, 15 Colo. 201; Lee Doon v. Tesh, 68 Cal. 43;

Thompson v. Spray, 72 Cal. 528; Moritz v. Lavelle, 77 Cal. 10.

4 Bohanon v. Howe, 2 Idaho, 417; Ducie v. Ford, 8 Mont. 233.

5 Altoona Q. M. Co. v. Integral Q. M. Co., 45 Pac. 1047 (Cal.).

O'Reilly v. Campbell, 116 U. S. 418. See, also, Jackson v. Dines, 13 Colo. 90.

shown in an action of trespass; and this rule was followed by the supreme court of the state of California."

2234.

Conclusions.- Out of the chorus of discordant sounds it is difficult to evolve harmony.

We think, however, that, considering the underlying principles which should govern the construction and administration of the law, the weight of authority, as well' as motives of public policy, we are justified in deducing the following conclusions on the subject of alienage as affecting titles to unpatented mining claims on the public domain:

(1) An alien may locate or purchase a mining claim, and until "inquest of office" may hold and dispose of the same in like manner as a citizen;

(2) Proceedings to obtain patents are in the nature of "inquest of office," and in such proceedings citizenship is a necessary and material fact to be alleged and proved;

(3) In all other classes of actions between individuals with which the government has no concern, citizenship is not a fact in issue; it need be neither alleged nor proved;

(4) Naturalization of an alien at any time subsequent to either location or purchase is retroactive and enables him to proceed to patent. The antecedent bar to patent by reason of his alienage is removed.

These conclusions are not altogether palatable, but we consider that they are forced upon us by the logic of the law.

There is only one limitation upon these conclusions which may be plausibly asserted, and that is this: A qualified locator may relocate a claim in the possession of an alien who has not declared his intention to become a citizen, if such relocation may be made without force or violence and prior to the naturalization of the alien, as the North Noonday M. Co. v. Orient M. Co., 6 Saw. 299.

2 Anthony v. Jillson, 83 Cal. 296; Altoona Q. M. Co. v. Integral Q. M. Co., 45 Pac. (Cal.) 1047.

alien might be deemed a mere occupant without color of title, and the rules announced in the article on "occupancy" might apply. The relocator is then in a position to contest the alien's right to a patent. He would have the status of an adverse claimant, without which he would have no standing in court. The alienage of the original locator would not avail the subsequent citizen locator so as to permit the court to award the claim to him for that reason; but the latter would be enabled through the patent proceedings, which are the equivalents of "inquests "of office," to have alienage established, and thus clear the records. But in other actions, such as trespass, ejectment, and the like, disconnected with patent proceedings, and to which the government is neither directly nor indirectly a party, the alien locator would be entitled to rest upon the presumption as to his citizenship, and the fact that only the government could complain. We are loath to believe that a location by an alien is, under all circumstances, such a segregation of the tract from the body of the public. domain as will inhibit a relocation by a qualified locator who enters peaceably and in good faith for that purpose.

ARTICLE III. GENERAL PROPERTY RIGHTS OF ALIENS IN THE STATES.

237. After patent, property becomes subject to rules prescribed by the state.

2238. Constitutional and statutory regulations of the preciousmetal-bearing states on the subject of alien proprietorship.

237. After patent, property becomes subject to rules prescribed by the state. The rights of aliens to acquire, hold, and transmit real property in the states, after the title to such property has passed out of the general government, are regulated exclusively by the constitution and laws of the several states.

1See, ante, art. x., 216-218.

The mining laws contain the express provision that nothing in them shall be construed to prevent the alienation of title conveyed by a patent to any person whatever.'

As we have heretofore observed," property in mines, once vested absolutely in the individual, becomes subject to the same rules of law as other real property within the state. The federal law remains a muniment of title, but beyond this it possesses no potential force. Its purpose has been accomplished, and, like a private vendor, the government loses all dominion over the thing granted. To determine, therefore, what disabilities, if any, are imposed upon aliens as to property in the states, held in absolute private ownership after the government has absolutely parted with its title, the constitution and laws of the several states must be consulted.

238. Constitutional and statutory regulations of the precious-metal-bearing states on the subject of alien proprietorship. The tendency in almost all the preciousmetal-bearing states, and those within the purview of this treatise, has been in the line of a liberal policy on the subject of alien ownership. For the purpose of convenient reference, we note the present status of aliens in the several states.

California. Aliens, either resident or non-resident, may take, hold, and dispose of property, real or personal. A non-resident foreigner may take by succession, but must claim the estate within five years from the death of the decedent to whom he claims succession.*

Colorado.-Resident aliens may acquire, inherit, possess, enjoy, and dispose of property, real and personal, as nativeborn citizens."

1 Rev. Stats., 2326.

See, ante, ? 22.

3 Civil Code, 2 671; Estate of Billings, 65 Cal. 593; Lyons v. State, 67 Cal. 380; Carrasco v. State, Id. 385; State v. Smith, 70 Cal. 153.

Civil Code, ? 1404.

5 Const., art. ii., 27; Mills' Annot. Stats. 1891, ch. iii., ? 99, p. 421.