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the original locators or intermediate owners, but of the applicant for patent or adverse claimants only.1

It has been said that a presumption of citizenship arises from the fact of residence.

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The supreme court of Arizona has held that—

"It will be presumed that a man being a resident of "the United States, and who has made a mining location, was a citizen of the United States, . . . where "it appears that he recorded at or near the time a loca"tion notice reciting these facts. Such evidence will "make out a prima facie title."2

This was on the assumption that a location notice, when recorded, is, by reason of the law authorizing or requiring the record, prima facie evidence of the facts therein recited, following the rule approved in Colorado and elsewhere.1

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In the opinion of Judge Sawyer, in the class of proceedings provided for by the Revised Statutes, no presumptions of fact should be indulged, but each party must establish his right by evidence. These presumptions, if properly considered to any extent, are, of course, disputable.

After patent or certificate of purchase has once issued, however, the citizenship of the patentee is conclusively presumed. This presumption arises from the accepted rule that the qualifications of an applicant for patent are necessarily involved in the inquiry made by the land 1 Cash Lode, 1 Copp's L. O. 97; City Rock and Utah v. Pitts, Id. 146; Wandering Boy, 2 Copp's L. O. 2.

Jantzen v. Arizona C. Co. (Ariz.), 20 Pac. 93, 94.

Strepey v. Stark, 7 Colo. 614, 5 Pac. 111.

♦ Flick v. Gold Hill M. Co., 8 Mont. 298, 20 Pac. 807; Dillon v. Bayliss, 11 Mont. 171, 27 Pac. 725; Brady v. Husby, 21 Nev. 453, 33 Pac. 801; Garfield M. and M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153; Hammer v. Garfield M. and M. Co., 130 U. S. 291, 9 Sup. Ct. Rep. 548; Wood v. Aspen, 36 Fed. 25.

Rev. Stats., § 2326.

Bay State S. M. Co. v. Brown, 10 Saw. 243, 21 Fed. 167.

department, and the patent, when issued, is a conclusive adjudication that the patentee possessed the status of a citizen.1

As between individuals, the question of the alienage of a locator or claimant of a mining claim can only arise in the proceedings brought before the land department upon application for patent, or in actions brought under section twenty-three hundred and twenty-six of the Revised Statutes. In all other classes of cases it is not open to question. We have attempted to demonstrate this in a succeeding section."

ARTICLE II. ALIENS.

§ 231. Acquisition of title to un- § 233. What is the legal status of

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231. Acquisition of title to unpatented mining claims by aliens.-As we have already seen, aliens who have not declared their intention to become citizens can not lawfully locate mining claims upon the public mineral domain. But it frequently occurs that such aliens do so locate such claims and transmit the title so acquired apparently the same as if this disqualification did not exist; and there are innumerable examples of aliens purchasing from citizen locators, and in turn transmit

1 Justice M. Co. v. Lee, 21 Colo. 260, 52 Am. St. Rep. 216, 40 Pac. 444, (overruling the decision of the court of appeals in the same case); Lee v. Justice M. Co., 2 Colo. App. 112, 29 Pac. 1020.

*See, § 233. See, also, Buckley v. Fox (Idaho), 67 Pac. 659; Sherlock v. Leighton (Wyo.), 63 Pac. 580; McKinley Creek M. Co. v. Alaska United M. Co., 183 U. S. 563, 22 Sup. Ct. Rep. 84.

ting the title so acquired to others. These facts suggest the following inquiries:

(1) What is the status of the title to a mining claim located and held by an alien?

(2) What estate may such alien transmit to another?

(3) What is the effect of subsequent naturalization upon a location made at a time when the locator occupied the status of an alien?

(4) What is the status of the title to a mining claim located and held jointly by an alien and a citizen?

In discussing these questions and others incidentally arising out of them, we shall encounter but little difficulty in arriving at the true state of the law. Although in the decisions of the courts of last resort heretofore rendered in the several states we find differences of opinion, diversity of views, and inharmonious conclusions, the supreme court of the United States, the final arbiter of these problems, has comprehensively dealt with the situation and cleared the atmosphere.

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 the doctrine once definitely announced by the supreme court of the United States practically dispenses with the necessity of analyzing or attempting to harmonize the views theretofore an

nounced by the state courts. The attitude of the state courts in the past, however, as well as of some of the subordinate federal tribunals, touching these questions is of sufficient interest to justify comment, and in this light they will be discussed in the succeeding sections.

8232. 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 analogous 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 "confirmation 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." 2

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

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.*

An alien can acquire no right to public land before filing a declaration of intention to become a citizen, and

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

. Kempton Mine, Id., 178.

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

Ole Krogstad, 4 L. D. 564.

his subsequent qualification will not relate back so as to defeat an intervening right.1

A mining location made by an alien is not void but voidable, and a subsequent declaration to become a citizen made by the locator prior to the inception of any adverse right relates back to the date of the location and validates the same.2

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.*

1 Titamore v. S. P. R. R., 10 L. D. 463. This was the case of a preemption filing within railroad indemnity limits.

McEvoy v. Megginson, 29 L. D. 164.

9 Mont. 279, 23 Pac. 723.

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

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