and chiefly valuable therefor, under the provisions of the laws relating to placer mineral claims" (Act Feb. 11, 1897, c. 216, 29 Stat. 526 [U. S. Comp. St. 1901, p. 1434]); and counsel for the plaintiff contend that gilsonite and the other forms of asphaltum are mineral oils and may be purchased from the government under this statute by locating placer claims upon the land in which they are found. Asphaltum varies in its consistency from a liquid or semi-liquid to a hard or solid condition. The deposit here under consideration is gilsonite, and is neither a liquid nor a semiliquid, but a hard, solid substance. Conceding that this and other solid forms of asphaltum may fall within the scientific and true significance of the term mineral oils used in this act of 1897, they would not in our opinion fall within the meaning which that term would convey to the mind of a citizen of ordinary intelligence. To such a man the words convey a description of a fluid, and not of a solid substance. The act of 1897 was not enacted for scientists or for those specially learned in the composition and analysis of geological formations alone or chiefly, but for citizens of common intelligence and learning who might desire to buy valuable deposits upon the lands of the United States and to them the significance of these words "other mineral oils" in this law, following, as they do, the word "petroleum," which describes a liquid, is liquid or semiliquid mineral oils, and it does not include gilsonite or the hard forms of asphaltum. The sense in which the reader of ordinary knowledge and intelligence would take these words, the obvious common meaning of them, should be preferred to the recondite signification which would include the solid forms of asphaltum, and for this reason the act of 1897 did not authorize the entry of lands which contain these deposits by means of placer claims.

Again, a deposit of asphaltum in a lode or vein in rock in place was locatable, as we have seen, by means of a lode mining claim, and it was not subject to location by a placer claim under the acts of 1866 and 1872, when the act of February 11, 1897, was passed. Prior to August 27, 1896, the officers of the land department had held that lands valuable for petroleum might be entered and patented by means of placer claims (In re Rogers, 4 Land Dec. Dep. Int. 284; In re Piru Oil Company, 16 Land Dec. 117; Gird v. California Oil Company [C. C.] 60 Fed. 531), but on that day the Secretary of the Interior decided that they could not be thus located. Union Oil Company, 23 Land Dec. Dep. Int. 222. The nature of the act of 1897 and the fact that it was passed at the next session of Congress after this decision strongly indicate that it was not the intention of that body to change thereby the prescribed method for the entry of veins of asphaltum in rock in place, but that its only purpose and the only effect of the act were to restore the rule and practice regarding petroleum and other mineral oils which were not found in veins or lodes which had prevailed before the decision in the Union Oil Com

pany Case, so as to authorize the entry of lands which contain them by placer claims.

Our conclusion is that gilsonite and the harder forms of asphaltum in veins or lodes in rock in place may be entered and patented by means of the location of the lode mining claims thereon, and that they may not be secured by means of placer claims upon the land in which they are found.

This was the judgment of the court below; and it is affirmed.15

15 In Morrison's Mining Rights, 14 ed. 243, Messrs. Morrison and De Soto seemingly doubt the soundness of the decision in the principal case.

CHAPTER II.

WHO MAY AND WHO MAY NOT LOCATE MINING CLAIMS.

FEDERAL STATUTE.

SEC. 2319. 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. Rev. St. U. S. § 2319.

Section 1.-Aliens.

DUNCAN v. EAGLE ROCK GOLD MINING & REDUCTION

CO.

1910. SUPREME COURT OF COLORADO. 48 Colo. 569, III Pac. 588.

ACTION by the Eagle Rock Gold Mining & Reduction Company against John T. Duncan. From a judgment for plaintiff, defendant appeals. Reversed.

WHITE, J.1 John T. Duncan made application through the proper United States Land office for patent to certain lode mining claims designated as survey lot No. 17,375, situate in Sugar Loaf Mining district, Boulder county. The Eagle Rock Gold Mining & Reduction Company filed an adverse, and thereafter within the time limited by law this suit in support thereof, claiming of Duncan's lodes substantially all of the Black Prince, Black Prince No. 1, and Black Prince No. 2, located in 1904, as portions of its Ellmettie and Grace lodes, located in 1898, Oro and Anna G., located in 1899, Everett, Washington, and Monarch, located in 1900, and demanding damages, reasonable attorney's fees, and expenditures in support of the adverse. By the complaint the legal right to occupy and possess 'Parts of the opinion are omitted.

71

said premises and to the possession thereof was claimed "by virtue of full compliance with the local laws and rules of miners of said mining district, the laws of the United States and of the state of Colorado, by pre-emption and purchase, and by actual possession as lode mining claims located on the public domain of the United States." Duncan, defendant below, denied specifically the allegations of the complaint, and alleged title in himself to the territory in question. The replication traversed the allegations of the answer. Upon the issues so joined, trial was had, resulting in a verdict for plaintiff, the appellee here, for possession of the territory in dispute, $225 expenses and counsel fees, in support of the adverse, and $700 damages. Motion for new trial interposed and overruled, judgment in accordance with verdict entered, and writ of restitution ordered. From the judgment Duncan prosecutes this appeal, and assigns numerous errors, only a few of which we deem it necessary to consider. Appellee, to prove its corporate existence and its citizenship, introduced in evidence a certified copy of its articles of incorporation showing that it was duly organized and existing as a corporation under and by virtue of the laws of the state of Colorado. No other proof of the citizenship of its stockholders was made, and it is contended that citizenship in that respect was not established. It appears from Jackson v. White Cloud Gold Mining & Milling Co., 36 Colo. 122, 85 Pac. 639, that the proof upon the matter in question was sufficient. Appellee acquired some of its claims by purchase. and the others by location. Of the former were the Ellmettie and the Grace. The Ellmettie location certificate was filed by F. J. Rogers and William Capp, and an amended certificate thereof by William and M. L. Capp. The Grace location certificate was filed by William Capp. There was no evidence that Rogers or either of the Capps at the time of making the respective locations, or the conveyance of the claims to appellee, were citizens, or had declared their intention of becoming citizens, of the United States. Appellant contends that the appellee could not sustain its adverse as to these two claims because it failed to prove the citizenship of the original locators, and in support of his contention cites several authorities.

In Lee v. Justice Mining Co., 2 Colo. App. 112, 29 Pac. 1020, after announcing the statutory rule that none but citizens of the United States, and those who have declared their intention to become such, can acquire any right to public mineral lands, it is held that an alien cannot acquire such an interest in a mining claim upon the public domain by location as can be sold, and upon which a subsequent title. can be predicated. That case was carried to this court, however, and in 21 Colo. 260, 40 Pac. 444, 52 Am. St. Rep. 216, was overruled; it there being held that the Court of Appeals was in error in assuming that the record in the case presented a question as to the right of an alien to acquire by location a transferable interest in a mining claim,

as that question could not, under the facts there presented, be raised. In Thomas v. Chisholm, 13 Colo. 105, 21 Pac. 1019, the title to a mining claim, based upon a prior location made by one Joseph Hudson and the Kansas City Mining & Smelting Company, a corporation, and by them assigned or conveyed to Chisholm, the defendant, was under consideration in an adverse suit, and it was expressly held necessary to allege and prove the citizenship of the original locator or locators, as well as the citizenship of the successful party to the action.

Appellee contends, notwithstanding these decisions, that the citizenship of the original locator is material only where he continues to be the claimant to the time of the institution and determination, of an adverse suit. It must be conceded that many authorities so hold. Such is the doctrine announced in Morrison's Mining Rights (12th) Ed.) p. 286; Lindley on Mines, § 233, and other authorities. We are constrained, however, to adhere to the doctrine, heretofore announced by this court, until there is a specific holding to the contrary by the United States Supreme Court. Appellee insists that such pronouncement has already been made by that tribunal, and that the doctrine of Thomas v. Chisholm, supra, has been overturned in McKinley Creek M. Co. v. Alaska M. Co., 183 U. S. 563, 571, 22 Sup. Ct. 84, 46 L. Ed. 331, and Manuel v. Wulff, 152 U. S. 505, 14 Sup. Ct. 651, 38 L. Ed. 532. We are of the opinion that neither of the cases goes to the extent claimed by appellee. Manuel v. Wulff holds that a deed of a mining claim by a qualified locator to an alien operates as a transfer of the claim to the grantee, subject to question in regard to his citizenship by the government only, and if such alien becomes a citizen, or declares his intention to become such at any time before judgment in a contest concerning such mining claim, the alien's disability to take title is thereby removed. In that case, on page 511 of 152 U. S., on page 653 of 14 Sup. Ct. (38 L. Ed. 532), it is said: "We are of opinion on this record that as Alfred Manuel (the original locator) 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 by the government only. Inasmuch as this proceeding was based upon the adverse claim of Wulff to the application of Moses Manuel for a patent, the objection of alienage was properly made, but this was as in right and on behalf of the government, and naturalization removed the infirmity before judgment was rendered. * * * And as Moses Manuel was the grantee of a qualified locator, and became naturalized before the order, we conclude that there was error in the

* See Costigan, Mining Law, 167-169.