direction of a nonsuit." McKinley Creek Mining Co. v. Alaska Mining Co., supra, does not appear to be an adverse, but rather a controversy in which the federal government was neither directly nor indirectly interested. ***

It appears by these decisions that the court went no further than to hold that whoever is occupying the public domain under an apparent valid claim has a right to so continue until ousted by the government itself; that is, the citizenship of the holder and the original locator of the mining claim is subject to question only by the sovereign. In support of the proposition that a location made by an alien can be conveyed to a citizen, and when vested in the latter is as complete as if originally acquired by him by location, and that the government itself cannot assail his title, Mr. Lindley in his work on Mines, § 233, argues that, if the government can, by direct conveyance to an alien, vest in him a title to the absolute fee, it follows that an alien can acquire a limited estate by location, subject to an inquiry as to his qualifications, when he seeks acquirement of the ultimate fee. Unquestionably the sovereign is a competent grantor in all cases in which an individual may grant, but in the case of mining claims it will not, and does not knowingly, grant to an alien. Inasmuch, however, as every person is supposed a natural born subject that is resident in the kingdom, the sovereign in effect says to all, a certificate of location of a mining lode, complete in itself, gives an apparent right which must be recognized until the sovereign inquires into its validity. When the inquiry is made, the apparent right becomes-what it really is-no right at all.

The mineral lands of the United States are open to exploration and purchase only by citizens of the United States, or by those who have declared their intention to become such. As citizenship goes to the very inception and initiative of the title or right to hold as against the government, a noncitizen can never make a valid location, though one so made is apparently valid. Proceedings to obtain title to mining property are in the nature of "inquest of office. "In such cases the sovereign is a party in fact to the proceeding, which is a direct one, for the procurement of title, and the objection of alienage, no matter by whom suggested, is based solely upon the right of the government to interpose the fact of alienage as a bar to procuring or holding an interest in realty. If, however, the grant of title, or the equivalent, is made to an alien, it cannot be attacked by any third party." Billings et al. v. Aspen M. & S. Co. et al., 52 Fed. 250, 3 C. C. A. 69.

3

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We will not prolong this opinion by discussion of other errors as

On the effect of Manuel v. Wulff, see McKinley Creek Min. Co. v. Alaska United M. Co., post p. 192.

signed, as it is clearly evident the judgment must be reversed, and it is so ordered.

Judgment reversed.*

Section 2.-Corporations.

DOE v. WATERLOO MIN. CO.

1895. CIRCUIT COURT OF APPEALS. 17 C. C. A. 190, 70 Fed. 455.

APPEAL from the Circuit Court of the United States for the Southern District of California.

This was a suit commenced by John S. Doe against the Waterloo Mining Company, pursuant to Rev. St. §§ 2325, 2326, to determine the right of possession of mining lands for which conflicting applications for patents had been filed. A demurrer to the complaint was overruled (43 Fed. 219) and a decree was rendered for the defendant (55 Fed. 11). Complainant appeals. Affirmed.

Before Gilbert, Circuit Judge and Knowles and Hawley, District Judges.

KNOWLES, District Judge. *

* The thirteenth assignment

of error is that the decree was erroneous because it does not appear in the pleadings, anywhere, that the stockholders of the Waterloo Mining Company, the defendant, were citizens of the United States. * *

Compare the case of Waskey v. Hammer, post, p. 82. In Holdt v. Hazard, 10 Cal. App. 440, 102 Pac. 540, an ejectment action for mining claims not brought in support of an adverse claim, Shaw, J., for the court, in affirming a judgment for the plaintiffs, said:

"The finding to the effect that each of said plaintiffs was a citizen of the United States is not supported by the evidence. That question, however, was not in issue, and, so far as it concerned the rights of the parties to this action, it was wholly immaterial whether plaintiffs were citizens or aliens. Their citizenship is a matter which concerns the government of the United States only. Notwithstanding the fact that the contrary has been held in some jurisdictions, it is now well settled by the decisions of the courts of the United States that the question of qualification of the locator of a mining claim, so far as the validity thereof is affected by his alienage, is one which cannot be raised or determined in actions between private individuals wherein the United States is not made a party. Billings v. Smelting Co., 51 Fed. 338, 2 C. C. A. 252; Manuel v. Wulff, 152 U. S. 507, 14 Sup. Ct. 651, 38 L. ed. 532; McKinley Creek Min. Co. v. Alaska Min. Co., 183 U. S. 563, 22 Sup. Ct. 84, 46 L. ed. 331; Snyder on Mines, $ 267; Costigan on Mining Law, § 47; Tornanses v. Melsing et al., 109 Fed. 710, 47 C. C. A. 596.”

The issue of citizenship is properly raised in an adverse suit, as the United States is a quasi or silent party to it, (Matlock v. Stone, 77 Ark. 195, 91 S. W. 553; Wilson v. Freeman, 29 Mont. 470, 75 Pac. 84, 68 L. R. A. 833,) though it is not a party for all purposes. Butte Land & Investment Co. v. Merriman, 32 Mont. 402, 80 Pac. 675.

Parts of the opinion are omitted. See post p. 177 for some of such parts.

The question presented in the thirteenth assignment of error affects the jurisdiction of the lower court and of this court. It does not appear in any of the pleadings or in the evidence that the stockholders of the Waterloo Mining Company were, all or any of them, citizens of the United States. The plaintiff would not be benefited by this omission if it were true that none of said stockholders were citizens. It is alleged in the answer that Newbill and his colocators were all citizens of the United States. This fact is stated in their location notice, and that is in evidence in this case. Newbill and Parks both testify to their citizenship. An affidavit of one Emil A. Sanger, in evidence, states that all of said locators were citizens of the United States. The grantees of these locators would be entitled to the possession of the premises located, as against plaintiff. Manuel v. Wulff, 152 U. S. 505, 14 Sup. Ct. 651. The question might be considered as affecting the duty of the court to find against the defendant. In the case of McKinley v. Wheeler, 130 U. S. 630, 9 Sup. Ct. 638, the supreme court holds that a corporation all of whose stockholders are citizens of the United States had the power to locate a mining claim. The inference is, although not stated, that only corporations whose stockholders are citizens of the United States can locate such claims." Section 2325 of the Revised Statutes

"The sole question presented for our determination is whether a corporation created under the laws of one of the states of the Union, all of whose members are citizens of the United States, is competent to locate or join in the location of a mining claim upon the public lands of the United States in like manner as individual citizens. The question must, of course, find its solution in the enactments of congress.

"Section 2319 of the Revised Statutes provides as follows: '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.' It will be observed that no prohibition is here made against citizens of the United States uniting together for the occupation and purchase of public lands containing 'valuable mineral deposits.' Nothing is said of partnerships or associations or corporations. It is to citizens that the privilege is granted, and that they may unite themselves in such modes in all other pursuits was, as a matter of course, well known to those who framed as well as to those who passed the statute. There was no occasion for special reference to the subject to give sanction to these modes of uniting means to explore for mineral deposits and to develop them when discovered. * * * At the present day nearly all enterprises, for the prosecution of which large expenditures are required, are conducted by corporations. * *They are little more than aggregations of individuals united for some legitimate business, acting as a single body, with the power of succession in its members without dissolution. We think, therefore, that it would be a forced construction of the language of the section in question, if, because no special reference is made to corporations, a resort to that mode of uniting interests by different citizens was to be deemed prohibited. There is nothing in the nature of the grant or privilege conferred which would impose

*

provides that persons who can locate mining claims may make an application to patent the same. The question would arise, how is this citizenship of stockholders to be established? It is alleged in the bill, and expressly admitted in the answer, that the appellee is a corporation organized and existing under the laws of Wisconsin. A certified copy of its articles of incorporation were introduced in evidence. Section 2321, Rev. St., provides:

"Proof of citizenship under this chapter may consist in the case of an individual of his own affidavit thereof, in the case of an association of persons unincorporated, of the affidavit of their authorized agent made of 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 certificate of incorporation."

The question might arise, why would the certificate of incorporation establish the citizenship of the stockholders? In considering the question of jurisdiction in the federal courts, it is an established rule that, when a corporation organized under state laws is a party, it is conclusively presumed that the stockholders thereof are all citizens of that state. Muller v. Dows, 94 U. S. 445. Congress was familiar with this rule, and it seems probable intended to establish a similar rule under the mineral land act of 1872. The practice. in the United States land office has been, I think, universal, not to require of a corporation seeking to patent mining ground proof of the citizenship of its stockholders, other than by the production of a certified copy of articles of incorporation. After the passage of the act of March 3, 1887 (24 Stat. 477), which provided that no corporation, more than 20 per cent. of the stock of which was owned by persons not citizens of the United States, should acquire real estate in the territories of the United States or the District of Columbia, cor

* * *

such a limitation. It is in that respect unlike grants of land for homesteads and settlement, indicating in such cases that the grant is intended only for individual citizens. The development of the mineral wealth of the country is promoted, instead of retarded, by allowing miners thus to unite their means. This is evident from the fact that so soon as individual miners find the necessity of obtaining powerful machinery to develop their mines, a corporation is formed by them, and it is well known that a very large portion of the patents for mining lands has been issued to corporations. * * * We are of opinion that section 2319 of the Revised Statutes must be held not to preclude a private corporation formed under the laws of a state, whose members are citizens of the United States, from locating a mining claim on the public lands of the United States. There may be some question raised as to the extent of a claim which a corporation may be permitted to locate as an original discoverer. It may, perhaps, be treated as one person, and entitled to locate only to the extent permitted to a single individual. That question, however, is not before us, and does not call for an expression of opinion." Field, J., in McKinley v. Wheeler, 130 U. S. 630, 32 L. ed. 1048, 9 Sup. Ct. 638. In Coalinga Hub Oil Co., 40 Land Dec. Dept. Int. 401, the land department holds that a corporation may not legally locate more than twenty acres in one placer location either in its own name or through individuals acting for it.

porations making application to patent mining claims in a territory were required to show that 80 per cent. of their stockholders were citizens of the United States. But this rule never prevailed under the mineral act of 1872 anywhere. It would have been a great hardship on a corporation to have had to prove that all of its stockholders were citizens of the United States. The practice in the land department of the United States under this statute should have great weight in construing it. Hahn v. U. S., 107 U. S. 402, 2 Sup. Ct. 494; U. S. v. Moore, 95 U. S. 760; Brown v. U S., 113 U. S. 568, 5 Sup. Ct. 648. Considering the statute and the practice thereunder, I think the citizenship of the stockholders of the Waterloo Mining Company was sufficiently established. It was not necessary to allege in the answer what was conclusively presumed from the facts alleged. Hence it was not necessary to have alleged in the answer that the stockholders of appellee were citizens of the United States.

With these views of the law in this case, I think the decree in this case should be affirmed, and it is so ordered. The decree is affirmed, with costs of appellee.

Section 3.-Infants and Agents.

THOMPSON AND OTHERS v. SPRAY.

1887. SUPREME COURT OF CALIFORNIA. 72 Cal. 528, 14 Pac. 182.

* *

*

SUIT to quiet title by appellants, Alex. Thompson, Matilda Thompson, Margaret Thompson, Bedelia Thompson, James Thompson, and Alex. Thompson, Jr., a minor, by his guardian ad litem. HAYNE, C." * * * Upon the close of the plaintiffs' evidence several motions for nonsuit were made and granted. * * * The defendant then moved for a nonsuit as to James, Matilda, and Alex. Thompson, Jr. This motion was denied as to Matilda, and granted. as to the others. It was upon four grounds, viz.: That they were not citizens of the United States; that they were minors at the time of the [placer mining] location; that the use of their names was unauthorized; and that the notice was recorded before it was posted. Were the plaintiffs citizens of the United States at the time the location was made? We think the evidence shows that they were.

* * *

Does the fact that these plaintiffs were minors at the time of the location invalidate the notice as to them? We have not been referred to any decision which holds that it does. The provision of the statute is that mineral deposits in public lands are open to "citizens of the United States, and those who have declared their intention," etc.

'The statement of the complaint and parts of the opinion are omitted.