be invoked for the purpose of preserving the estate from invasion, "upon base surmises without the intervention "of a jury."

It has been authoritatively determined by the supreme court of the United States, that the estate created by a perfected mining location and transferred to an alien is not analogous to an estate created by descent; in other words, that it is not an estate created by operation of law.1

It has been definitely determined that a mining locator takes his estate in the claim located by purchase.2

We think we are justified in asserting that the following principles have been established by the weight of authority:

(1) That a location made by an alien, if otherwise valid, creates in him an estate which can be divested only at the instigation of the government in a proceeding to which it is either directly or indirectly a party; 3

(2) That such estate when vested in a citizen is as complete as if originally acquired by him by location, and no one, not even the government, can assail his title.

While the supreme court of the United States was extremely guarded in its decision in Manuel v. Wulff (supra), and avoided any intimation that a transfer from an alien locator to an alien would be considered as vesting any estate, yet its use of the term "qualified "locator" was simply a statement of the fact in that particular case, as there was no controversy over the qualification of the locator. He was an admitted citizen. It was not necessary, nor did the court propose, inferentially or otherwise, to rule upon a state of facts not

Manuel v. Wulff, 152 U. S. 505, 14 Sup. Ct. Rep. 651.

'McKinley M. Co. v. Alaska United M. Co., 183 U. S. 563, 571, 22 Sup. Ct. Rep. 84.

before it. In a later case, however, the supreme court distinctly held that "the meaning of the case of Manuel "v. Wulff is, that the location by an alien and all the “rights following from such location are voidable, not “void, and are free from attack by any one except the "government."1

The circuit court of appeals of the eighth circuit had previously held, in a case where an alien was one of the locators, that mining rights acquired by such alien by his location constitute no exception to the general rule that the right to defeat a title on the ground of alienage is reserved to the government alone.2

3

This rule has been adhered to by several courts, and, as heretofore observed, has been finally settled by the supreme court of the United States.

A contrary rule was at one time asserted by the supreme court of Montana, that court holding that a possessory title of mineral land, founded on a valid location, and held by 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.*

In a case where alien Chinese were in possession of public mineral lands in Oregon," Judge Deady issued an

1 McKinley M. Co. v. Alaska United M. Co., 183 U. S. 563, 572, 22 Sup. Ct. Rep. 84.

'Billings v. Aspen M. Co., 51 Fed. 338, 341; S. C. on rehearing, 52 Fed. 250.

Wilson v. Triumph Cons. M. Co., 19 Utah, 66, 75 Am. St. Rep. 718, 56 Pac. 300; Lone Jack M. Co. v. Megginson, 82 Fed. 89 (C. C. A., 9th Ct.); Tornanses v. Melsing, 109 Fed. 710 (C. C. A., 9th Ct.); Kjellman v. Rogers, 109 Fed. 1061; Little Emily M. Co. v. Couch (U. S. C. C., Idaho, unreported). See, also, Croesus Min., M. and S. Co. v. Colorado Land and M. Co., 19 Fed. 78.

• Tibbitts v. Ah Tong, 4 Mont. 536.

Chapman v. Toy Long, 4 Saw. 28, Fed. Cas., No. 2610. But see Lohman v. Helmer, 104 Fed. 178.

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 adoption of this constitution shall ever "hold any real estate or mining claim, or work any min66 ing 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:

"It would seem to follow that as the right to posses"sion 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 judgment 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."

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When we come to analyze the decisions of other tribunals in the quest of apt analogies, we find much conflict of opinion. As a matter of historical interest we will review them.

Judge Sawyer, in the ninth circuit court, held that if a citizen and an alien jointly locate a claim, not exceeding the amount of ground allowed by law to one locator, such location is valid as to the citizen, and a conveyance

from both of such locators to a citizen gives a valid title.1

The same rule has been announced in Arizona and Utah.2

The supreme court of Nevada has intimated that a mining claim located by an alien might be relocated and held by a citizen.3

The same court also announced that an alien should be protected in the possession of the public lands the same as a citizen; but, in the light of its other rulings, there is but little doubt that it entertained the view that a location made by an alien was not protected from a peaceful entry by a citizen for the purpose of relocating, and that such relocation would connect the relocator with the government title. The same rule was announced by the supreme court of Utah, though that court admitted the rule that the government alone could raise the question of non-citizenship."

That an alien may purchase an unpatented mining claim, and has full and complete right to convey the same, his estate being valid against every person but the government, has been determined in several of the states.

It has also been determined that in the absence of an inhibition in the state laws, an alien may succeed to the title to a mining claim by descent and may maintain any

1 North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 1 Fed. 522. Providence G. M. Co. v. Burke (Ariz.), 57 Pac. 641; Strickley v. Hill, 22 Utah, 257, 83 Am. St. Rep. 786, 62 Pac. 893.

'Golden Fleece G. and S. M. Co. v. Cable Cons., 12 Nev. 313. See, also, McEvoy v. Megginson, 29 L. D. 164.

Courtnay v. Turner, 12 Nev. 345.

Wilson v. Triumph Cons. M. Co., 19 Utah, 66, 75 Am. St. Rep. 718, 56 Pac. 300, citing Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. Rep. 102; Brandt v. Wheaton, 52 Cal. 430.

Ferguson v. Neville, 61 Cal. 356; Gorman Mining Co. v. Alexander,

2 S. Dak. 557, 51 N. W. 346; Territory v. Lee, 2 Mont. 124; Strickley v. Hill, 22 Utah, 257, 83 Am. St. Rep. 786, 62 Pac. 893.

action to protect it which is not connected with the patent proceeding.1

The court in the Nevada case (supra) was careful to add:

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"We must not be understood as holding that in all "actions in relation to mining claims it is necessary for "plaintiffs to aver citizenship. We are discussing the requirements of a complaint in the special case pro"vided 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 conclusions are limited to "such action." 2

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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 one. In this class of actions, the courts have generally insisted that citizenship of the litigating parties must be alleged, and, of course, proved.3

In ordinary actions, some courts have held that this is not necessary. Others hold that in all classes of actions

1 Lohmann v. Helmer, 104 Fed. 178.

Lee Doon v. Tesh, on rehearing in bank, 68 Cal. 43, 8 Pac. 621. For opinion rendered by department, see 6 Pac. 97.

3 Jackson v. Dines, 13 Colo. 90, 21 Pac. 918; McFeters v. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 Pac. 1076; Lee Doon v. Tesh, 68 Cal. 43, 8 Pac. 621; Keeler v. Trueman, 15 Colo. 143, 25 Pac. 311; Rosenthal v. Ives, 2 Idaho, 244, 12 Pac. 904; Strickley v. Hill, 22 Utah, 257, 83 Am. St. Rep. 786, 62 Pac. 893; Lohman v. Helmer, 104 Fed. 179. But see Sherlock v. Leighton (Wyo.), 63 Pac. 580, 934; and McKinley Min. Co. v. Alaska United M. Co., 183 U. S. 563, 22 Sup. Ct. Rep. 84.

McFeters v. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 Pac. 1076; Lee Doon v. Tesh, 68 Cal. 43, 8 Pac. 621; Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Moritz v. Lavelle, 77 Cal. 10, 11 Am. St. Rep. 229, 18 Pac. 803; Lohmann v. Helmer, 104 Fed. 179; Buckley v. Fox (Idaho),