such citizenship must be averred. Still others dispense with the necessity of alleging, but insist upon its being proved.2

The supreme court of the United States has decided that an objection to the alienage of a locator cannot be taken for the first time in the appellate court. As this was a suit upon an adverse claim, citizenship should have been alleged in the pleadings.

Judge Sawyer decided that the citizenship of a locator through whom a party litigant claimed must be shown in an action of trespass; and this rule was followed by the supreme court of the state of California."

4

The rule, however, as established by the supreme court of the United States, destroys the value of these state and federal decisions as precedents, and removes the question from the domain of academic discussion."

8 234. Conclusions.-The following conclusions are clearly deducible from the current of judicial authority:

(1) An alien may locate or purchase a mining claim, and until "inquest of office" may hold and dispose of the same in like manner as a citizen;"

67 Pac. 659; Sherlock v. Leighton (Wyo.), 63 Pac. 580; McKinley M. Co. v. Alaska United M. Co., 183 U. S. 563, 22 Sup. Ct. Rep. 84; McCarthy v. Speed, 11 S. Dak. 362, 77 N. W. 590.

1

1 Bohanon v. Howe, 2 Idaho, 417, 17 Pac. 583, (but see Buckley v. Fox (Idaho), 67 Pac. 659); Ducie v. Ford, 8 Mont. 233, 19 Pac. 414.

Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100, 45 Pac. 1047. O'Reilly v. Campbell, 116 U. S. 418, 6 Sup. Ct. Rep. 421. See, also, Sherlock v. Leighton (Wyo.), 63 Pac. 934; Jackson v. Dines, 13 Colo. 90, 21 Pac. 918.

4 North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 1 Fed. 522.

Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419; Altoona Q. M. Co. v.. Integral Q. M. Co., 114 Cal. 100, 45 Pac. 1047.

183 U. S. 563, 572, 22 Sup. Ct. Rep. 84.

McKinley M. Co. v. Alaska United M. Co., 183 U. S. 563, 22 Sup. Ct. Rep. 84; Wilson v. Triumph Cons. M. Co., 19 Utah, 66, 75 Am. St. Rep. 718, 56 Pac. 300.

(2) Proceedings to obtain patents are in the nature of inquest of office," and in such proceedings citizenship is a necessary and material fact to be alleged and proved;

(3) In all other classes of actions between individuals with which the government has no concern citizenship is not a fact in issue; it need be neither alleged nor proved;

(4) Naturalization of an alien at any time subsequent to either location or purchase is retroactive and enables him to proceed to patent. The antecedent bar to patent by reason of his alienage is removed.

(5) An alien may take title by descent to an unpatented mining claim in the absence of a state law inhibiting it. He may hold such title until "office found."'1

These conclusions are not altogether palatable, but we consider that they are forced upon us by the logic of the law.

2

There is one limitation upon these conclusions which was tentatively suggested by the author and has been discussed by the courts, and that is this: A qualified locator may relocate a claim in the possession of an alien who has not declared his intention to become a citizen, if such relocation may be made without force or violence and prior to the naturalization of the alien, as the alien might be deemed a mere occupant without color of title, and the rules announced in the article on "occupancy" might apply.

The theory advanced in support of the speculative suggestion was, that the relocator would then be in a

1 Lohmann v. Helmer, 104 Fed. 178.

Wilson v. Triumph Cons. M. Co., 19 Utah, 66, 75 Am. St. Rep. 718, 56 Pac. 300; Golden Fleece G. and S. M. Co. v. Cable Cons. Co., 12 Nev. 313; Sherlock v. Leighton (Wyo.), 63 Pac. 580, 934.

8 See, ante, §§ 216-218.

position to contest the alien's right to a patent; that he would have the status of an adverse claimant, without which he would have no standing in court; and the alienage of the original locator would not avail the subsequent citizen locator so as to permit the court to award the claim to him for that reason; but the latter would be enabled through the patent proceedings, which are the equivalents of "inquests of office," to have alienage established, and thus clear the records. This same result could be accomplished by filing a protest in the land office. We have reached the conclusion, however, that this "suggestion" cannot be logically supported or plausibly maintained.

We think that the decision by the supreme court of the United States in McKinley M. Co. v. Alaska United M. Co.,1 to the effect that a location by an alien is free from attack except by the government, establishes the law that no rights may be initiated by a citizen through a relocation of the ground appropriated by an alien, until the latter's title has been determined by the government. Prior to that time the ground would not be open to location or relocation. One attempting to relocate the ground could not connect himself with the government title, and would acquire no rights whatever. If he should institute an adverse suit based upon such pretended relocation he might assist the government in preventing the alien from securing a patent, but such a result would not validate his pretended location.2

1 183 U. S. 563, 22 Sup. Ct. Rep. 84.

See Billings v. Smelting Co., 52 Fed. 250; Sherlock v. Leighton (Wyo.), 63 Pac. 580, 934.

ARTICLE III. GENERAL PROPERTY RIGHTS OF ALIENS IN THE STATES.

$237. After patent, property be- § 238. Constitutional and statu

comes subject to rules
prescribed by the state.

tory regulations of the precious metal - bearing states on the subject of alien proprietorship.

8 237. After patent, property becomes subject to rules prescribed by the state.-The rights of aliens to acquire, hold, and transmit real property in the states, after the title to such property has passed out of the general government, are regulated exclusively, in the absence of treaty stipulations, by the constitution and laws of the several states.1

The mining laws contain the express provision that nothing in them shall be construed to prevent the alienation of title conveyed by a patent to any person whatever.2

As we have heretofore observed, property in mines, once vested absolutely in the individual, becomes subject to the same rules of law as other real property within the state. The federal law remains a muniment of title, but beyond this it possesses no potential force. Its purpose has been accomplished, and, like a private vendor, the government loses all dominion over the thing granted. To determine, therefore, what disabilities, if any, are imposed upon aliens as to property in the states, held in absolute private ownership after the government has absolutely parted with its title, the constitution and laws of the several states must be consulted.

1 Blythe v. Hinckley, 172 U. S. 501, 19 Sup. Ct. Rep. 497; Wilcox v. McConnell, 13 Pet. 498; Bahaud v. Bize, 105 Fed. 485.

Rev. Stats., § 2326.

3 See, ante, § 22.

238. Constitutional and statutory regulations of the precious-metal-bearing states on the subject of alien proprietorship.-The tendency in almost all the precious-metal-bearing states, and those within the purview of this treatise, has been in the line of a liberal policy on the subject of alien ownership. A treaty made by the United States is the supreme law of the land,1 and where a treaty has been made removing the disability of aliens to hold property any state legislation would be inoperative. But, in the absence of a treaty, the subject is within the exclusive power of a state. For the purpose of convenient reference, we note the present status of aliens in the several states.

California. - Aliens, either resident or non-resident, may take, hold, and dispose of property, real or personal. A non-resident foreigner may take by succession, but must claim the estate within five years from the death of the decedent to whom he claims succession."

Colorado.-All aliens may acquire, inherit, possess, enjoy, and dispose of real property as native-born citizens. But similar rights over personal property seem to be limited to resident aliens.

6

Idaho.-The civil code of this state has the following provision:

Any person, whether citizen or alien (except as "hereinafter provided), natural or artificial, may take; Const. of U. S., art. vi.

'Bahaud v. Bize, 105 Fed. 485.

Blythe v. Hinckley, 178 U. S. 501, 19 Sup. Ct. Rep. 497.

4 Civ. Code, § 671; Const. (1879), art. i, § 17; Estate of Billings, 65 Cal. 593, 4 Pac. 639; Lyons v. State, 67 Cal. 380, 7 Pac. 763; Carrasco v. State, Id. 385, 7 Pac. 766; State v. Smith, 70 Cal. 153, 12 Pac. 121.

Civ. Code, §§ 672, 1404.

•Const., art. ii, § 27; Mills' Annot. Stats. 1891, ch. iii, § 99, p 421. See, also, as to descent, Id., § 1529, p. 1021.