supreme court of the United States must be held to be authoritative and controlling in all matters of this kind, the decisions to the contrary must be held as no longer expressing the law.

§ 268. Logical conclusion - Inquest of office-Sovereign right. This conclusion of the courts, when considered in all its bearings, while not satisfactory to the practitioner in many respects, must be admitted to be the logical deduction to be drawn from the law, in view of the wellsettled rule that inquest of office is and always has been a right reserved to the sovereign power, and may not be exercised collaterally by an individual. As was said by the supreme court of the United States, speaking upon this point, and after quoting with approval the reasoning of the supreme court of Montana,2 but wherein the court reaches a different. conclusion, and in the course of its reasoning states the rule as follows: "That an alien can take by deed, and can hold until office found, must now be regarded as a positive rule of law so well established that the reason of the rule is little more than a subject for the antiquary. This being

so, we are of opinion on this record that, as Alfred Manuel 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 that the incapacity of the latter to take and hold by reason of alienage was, under the circumstances, open to question only by the government."

1 Manuel v. Wulff, 152 U. S. 505, and cases: Billings v. Aspen M. & S. Co., 2 C. C. A. 252; on rehearing, 3 C. C. A. 69, 52 Fed. Rep. 250: Craig v. Leslie, 3 Wheat. 563; Cross v. De Valle, 1 Wall. 1; Taylor v. Benham, 5 How. 232; Craig v. Bradford, 3 Wheat. 594; Lone Jack M. Co. v. Megginson, 82 Fed. Rep. 89, 27 C. C. A. 63; Racouillat v. Sansavain, 32 Cal. 376; Ferguson v. Neville, 61 Cal. 356; People v. Folsom, 5 Cal. 373; Ramires v. Kent, 2 Cal. 558;

Merle v. Matthews, 26 Cal. 477; Justice M. Co. v. Lee, 21 Colo. 260, 40 Pac. Rep. 444: Wulff v. Manuel, 9 Mont. 276, 23 Pac. Rep. 723 and cases cited; Gorman M. Co. v. Alexander, 2 S. Dak. 557, 51 N. W. Rep. 346; Wilson v. Triumph Cons M. Co., 19 Utah, 66, 56 Pac. Rep. 300; Bradstreet v. Supervisors of Oneida Co., 13 Wend. 546.

2 Wulff v. Manuel, supra. 3 Manuel v. Wulff, supra; Racouillat v. Sansavain, supra; De

In the case just cited by the supreme court, there appears this statement by Mr. Justice Johnson, which, inasmuch as it clearly gives the reason of the rule, we reproduce: "It no doubt owes its present authority, if not its origin, to a regard to the peace of society and a desire to protect the individual from arbitrary aggression. But there is one reason assigned by a very judicious compiler, which, for its good sense and applicability to the nature of our government, makes it proper to introduce it here. I copy it from Bacon: . . . 'Every person,' says he, 'is supposed a natural-born subject, that is resident in the kingdom, and that owes a local allegiance to the king, till the contrary be found by office.' This reason, it will be perceived, applies with double force to the resident who has acquired of the sovereign himself, whether by purchase or by favor, a grant of freehold." Thus the courts have met the dilemma squarely, and between that of not perpetrating a fraud upon an innocent holder of the legal and equitable title on the one hand, and of declaring the entire proceeding a fraud upon the statute and upon the government, the court chose the former course. It is immaterial that this discloses a defect in the statute; the remedy is with the legislative power.

$269. Application for patent is in the nature of inquest of office - Other actions not. Thus it is that in adverse suits only can the question of citizenship be raised by individuals. It is a material question there, as well as in the land office on application for patent. Such proceedings partake of the nature, pro hac vice, of inquest of office;' while in actions in ejectment and kindred suits, on the

Merle v. Matthews, supra; Taylor v. Benham, supra; Fairfax v. Hunter, 7 Cranch 603, 618; People v. Folsom, supra; Territory v. Lee, 2 Mont. 124.

1 Doe ex. dem. Governeur's Heirs v. Robertson, 11 Wheat. 332.

2 See post, § 717.

3 Id.; Lone Jack M. Co. v. Megginson, 27 C. C. A. 63, 82 Fed. Rep. 89: McFeters v. Pearson, 15 Colo. 201, 24 Pac. Rep. 1076.

other hand, the strength of reason and authority make the question of citizenship collateral and immaterial.1

The supreme court of Colorado aptly states this rule as follows: "It is further contended that the complaint is defective for want of necessary averments of citizenship. It is true, in a proceeding to settle adverse claims to mineral lands, the plaintiff must allege and prove that he is a citizen of the United States or that he has declared his intention to become such, in order to obtain the patent; and under the amendment of 1881 the defendant must make like averment and proof in order to succeed on his part. The supreme court of Idaho seems to have extended this doctrine to actions of trespass, though it was a case where the defendants not only denied the title of the plaintiff to the mining claim but also claimed to have located the same themselves. But it seems to us that there is reason for distinguishing in the matter of pleading between proceedings to settle adverse claims to mining property and a civil action for cutting and carrying away timber from such property. The former is a statutory proceeding prescribed by act of congress, the very purpose of which is to settle the title between contesting claimants and thus lay the foundation for the issuance of the government patent. Hence the pleadings must specially conform to that object. The latter, under our procedure, is an ordinary civil action to recover damages from a wrong-doer; injury to the possession is the gist of the

1 Billings v. Aspen M. & S. Co., 2 C. C. A. 252, 51 Fed. Rep. 338: s. c., 3 C. C. A. 59, 52 Fed. Rep. 250; O'Reily v. Campbell, 116 U. S. 418; Schultz v. Allyn (Ariz.), 48 Pac. Rep. 960; Lee Doon v. Tesh, 68 Cal. 43, 8 Pac. Rep. 621; Moritz v. Lavelle, 77 Cal. 10, 18 Pac. Rep. 803: Thompson v. Spray, 72 Cal. 528, 14 Pac. Rep. 182; Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100, 45 Pac. Rep. 1047; McFeters v. Pierson, 15 Colo. 201; Keeler v. Trueman, 15 Colo. 143, 25

Pac. Rep. 311; Jackson v. Dines, 13 Colo. 90, 21 Pac. Rep. 918; Thomas v. Chisholm, 13 Colo. 105, 21 Pac. Rep. 1019; Wilson Triumph Cons. M. Co., 19 Utah, 66, 56 Pac. Rep. 300; Strickly v. Hill (Utah), 62 Pac. Rep. 893; Rosenthal v. Ives, 2 Idaho, 244. 12 Pac. Rep. 904; Bohanan v. Howe, 2 Idaho, 417, 17 Pac. Rep. 583; Ducie v. Ford, 8 Mont. 233, 19 Pac. Rep. 414.

2 Citing Bohanan v. Howe, supra.

action and a money judgment is the only relief sought. In actions of the latter class it has always been allowable for the plaintiff to make general averment of his title or possession in the first instance. Besides, the capacity of the plaintiff to sue in an ordinary civil action is generally presumed, and the burden of controverting such authority, if attempted, rests upon the defendant. No such attempt was made in this case. The plaintiffs gave evidence that all and each of them were citizens of the United States, and no contradictory evidence was offered on the point. We see no reason to doubt that the evidence was sufficient to satisfy the jury that plaintiffs were citizens of the United States; that they have complied with the requirements essential to the location of a valid mining claim; and that their right thereto was a subsisting one at the time of the injuries complained of."1

1 McFeters v. Pierson, 15 Colo. 201, citing 1 Chit. Plead. 195; 2 Wat. Tresp., sec. 987; Strepey v. Stark, 7 Colo. 614, 5 Pac. Rep. 111; Gwillim v. Donnellan, 115 U. S. 49. See also cases cited in note 1, ante, p. 236. In McKinley Creek M. Co. v. Alaska Creek M. Co., 183 U. S. 563, which was an action for injunction, and the citizenship of plaintiff and its

predecessors in interest was attempted to be raised, following the rule in former cases, Manuel v. Wulff and Governeur's Heirs v. Robertson, it was decided that the question of location by an alien was open to attack only by the government. This was not an adverse suit, and of course goes no further than the matter before the court.

CHAPTER V.

LOCATION BY AGENTS AND MINORS.

§ 272. Preliminary observations-Application of the principles of agency in locating mines and of the controlling maxim.

273. Same subject - Authority unnecessary- Ratification — General discussion.

274. Authority of agents — Amending and completing locations.
275. Location by minors considered and held to be valid.
276. Summary of this part and general restatement of it.

se"

§ 272. Preliminary observations - Application of the principles of agency in locating mines and of the controlling maxim.-That principle of the law which has found expression in the maxim "qui facit per alium facit per se receives the highest recognition in mining law, and is carried to its fullest length in the location of mining claims. It is enforced in the same way and to the same extent as in its application to other real estate generally, with this distinction and difference, however, that it is seldom essential that the authority be given in writing. In fact it is often implied from other relations; as, for instance, in mining partnerships, or pursuant to implied authority arising from grub-stake or prospecting contracts. In such cases not only is the authority vested in the agent to make the location in his principal's name and as the act of his principal, but it is enforced in the most rigid manner in those contracts arising out of the principle, discussed in another branch of our work, that where one furnishes the supplies and tools, or other expenses, and the other furnishes the labor, upon the agreement that they shall share equally, even though it be verbal, it will be enforced. Nor is it necessary in any event

1 Post, Part XIV, ch. II.

2 Post, Part XIV, ch. III.