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rights of an owner. It was jus in re aliena, which in its extent and effects nearly resembled ownership. He had the full right of enjoyment, consequently the right of possessing the thing and of reaping all the fruits thereof. He might dispose of the substance of the thing, transfer the exercise of his right to another, and alienate it, inter vivos or causa mortis. He might mortgage it and burden it with servitudes, without requiring the consent of the dominus thereto.

His right to absolutely dispose of his estate was subject only to a preferred right of purchase in the dominus at the price offered. At the death of the emphyteuta, the emphyteusis descended to his heirs. The emphyteutical right was usually acquired by grant, although it might be acquired by prescription.1

"Dominium utile is a right which the vassal hath in "the land, or some immovable thing of his lord, to use "the same and take the profit thereof, hereditarily or in perpetuum." 2

3

2 542. Nature of the estate compared with inchoate pre-emption and homestead claims.-Judge Ross, in the case of Black v. Elkhorn, makes a comparison between the estate held by a mining locator and a pre-emption claimant prior to final entry and payment. While for the purposes of the case then under consideration, where dower was asserted in an unpatented mining claim, the comparison was not wholly inapt, yet we think the inference which may be drawn, that the estate of a mining locator is of no greater dignity than that of an inchoate pre-emption right, should not pass unchallenged. What are the essential differences between the two estates?

'Kaufman's Mackeldey, vol. i, §§ 324-325.

1 Spence Eq. Jur., 31, 33; Bowers v. Keesecker, 14 Iowa, 301. 352 Fed. 859.

Lindley on M.-57

(1) By their pre-emption laws, the United States did not enter into any contract with the settler, nor incur any obligation that the land occupied by him shall ever be offered for sale. They simply declared that in case any of their lands are thrown open for sale the privilege to purchase should be first given to parties who had settled upon and improved them.1

No estate in the land was acquired or right thereto vested in the claimant of an inchoate pre-emption right, unless and until the amount of purchase money was paid. The same doctrine applies to homestead claims.3

With reference to its mineral lands, the government has declared that they are free and open to exploration and purchase, and a positive compact is made between the government and the discoverer and locator, whereby the latter, upon compliance with the law, is clothed with the exclusive right of possession and enjoyment.5

If the government, after a valid mining location has been made, could deprive the locator of his rights, his right of possession certainly would not be exclusive.

(2) The pre-emptor is required to apply for patent within a fixed period of time. There is nothing in the mining law requiring a locator to proceed to patent at all. He may never do so, yet his estate is fully maintained in its integrity so long as the law which is a muniment of his title is complied with. An application for a patent is not essential to the acquisition or mainte

Hutchings v. Low, 15 Wall. 77; Campbell v. Wade, 132 U. S. 34, 10 Sup. Ct. Rep. 9; Black v. Elkhorn M. Co., 49 Fed. 549.

Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St. Rep. 32, 60 Pac. 664, and cases cited.

3 Wagstaff v. Collins, 97 Fed. 3, and cases cited.

Rev. Stats., § 2319.

5 Rev. Stats., § 2322; Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560; Black v. Elkhorn M. Co., 59 Fed. 549.

nance of a mining claim. The patent adds but little to the security of the locator.2

That the general government itself cannot deprive the locator of rights accrued under the mining laws has, we think, been fully demonstrated.

(3) Prior to entry and payment, the pre-emptor cannot convey or assign his interest to others.3

Such a conveyance or assignment would extinguish the pre-emption right.1

The right to transfer a mining claim has never been questioned.5

(4) It is not until entry and payment under a preemption claim that the land becomes subject to taxation by the state."

As we have heretofore shown,7 mining claims are so subject.

(5) Inchoate pre-emption claims are not subject to execution so as to enable the purchaser at the sale to obtain title from the government.8

The contrary has always been the rule as to mining claims.

Coleman v. McKenzie, 29 L. D. 359.

'Chambers v. Harrington, 111 U. S. 350, 4 Sup. Ct. Rep. 428; Gold Hill Q. M. Co. v. Ish, 5 Or. 104; Chapman v. Toy Long, 4 Saw. 28, Fed. Cas. No. 2610; Shafer v. Constans, 3 Mont. 369.

'Dillingham v. Fisher, 5 Wis. 475; McLane v. Bovee, 35 Wis. 27; Trulock v. Taylor, 26 Ark. 54; Busch v. Donohue, 31 Mich. 482; Frisbie v. Whitney, 9 Wall. 187; Aiken v. Ferry, 6 Saw. 79; Fed. Cas. No. 112; Lamb v. Davenport, 18 Wall. 307; Schoolfield v. Houle, 13 Colo. 394, 22 Pac. 781.

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St. Louis M. and M. Co. v. Montana M. Co., 171 U. S. 650, 655, 19 Sup. Ct. Rep. 61.

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Carroll v. Safford, 3 How. 441; Witherspoon v. Duncan, 4 Wall. 210. Ante, § 539.

Moore v. Besse, 43 Cal. 511; Bray v. Ragsdale, 53 Mo. 170; Cravens v. Moore, 61 Mo. 178; 1 Freeman on Ex., § 176; Dougherty v. Marcuse, 3 Head, 323; Crutsinger v. Catron, 10 Humph. 24; Rhea v. Hughes, 1 Ala. 219, 34 Am. Dec. 772; Hatfield v. Wallace, 7 Mo. 112; Brown v. Massey, 3 Humph. 470.

(6) An inchoate pre-emption could not be disposed of by will.1 Heirs alone would have the right to complete the entry. In such cases the heirs do not take title by descent from their ancestor, but the land is conveyed to them directly from the United States by virtue of the privilege of purchase given to them expressly by the provisions of section twenty-two hundred and sixty-nine of the Revised Statutes.2

In the case of the death of a homestead claimant who has earned title to the land the right to submit final proof and obtain patent is in the widow under the terms of the statute.3

Heirs would only be entitled (under the statute), in the event there was no widow.*

In the absence of any statute upon the subject, the privilege given by the government would lapse with the death of the pre-emptor."

Devisees, as such, would not be recognized by the government."

Even an administrator could not perfect the right, unless it was established that there was in existence some person for whose benefit the right might be perfected."

Unpatented mining claims descend to the heir, or may be devised the same as patented claims or other classes of real property.

1 Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St. Rep. 32, 60 Pac. 664, citing Rogers v. Clemans, 26 Kan. 522.

Id.

Rev. Stats., § 2291; Boyle v. Wolfe, 27 L. D. 572.

Currans v. Williams' Heirs, 20 L. D. 109; Runey v. Bourke's Heirs, 27 L. D. 596.

'Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St. Rep. 32, 60 Pac.

664.

Rev. Stats., § 2269.

'Elliott v. Figg, 59 Cal. 117.

We have heretofore shown1 the analogy between the mine locator's estate and the dominium utile of the civil law. No such analogy exists with reference to preemption claims.2

What has heretofore been said in reference to inchoate pre-emption claims applies with equal force to federal homestead claims prior to final entry. It seems to us that the distinction between the character of the estate held by a pre-emptioner or homestead claimant, prior to final entry, and the owner of a perfected mining location is decidedly marked.

It has been said that the mining laws provide for three classes of titles:

(1) Possessory: a location prior to entry and payment;

(2) Complete equitable: a location after entry and payment and before patent;

(3) Fee simple: after patent.3

While this may be true in one sense, yet a patent cannot confer any greater rights than those flowing from a valid perfected mining location. Pre-emption and homestead claims pass through the same gradations of title, but the nature and extent of the possessory right conferred are essentially different.

543. Dower within the states.-Each state regulates for itself the laws of descent, the domestic relation, and property rights between husband and wife. The subject of dower is one upon which congress may legislate so far as the territories are concerned, but within the states it is powerless to grant the right, or deny its

1 Ante, § 541.

Bowers v. Keesecker, 14 Iowa, 301.

3 America Hill Quartz Mine, 3 Sickle's Min. Dec. 377, 385; Benson M. etc. Co. v. Alta M. etc. Co., 144 U. S. 428, 12 Sup. Ct. Rep. 877.

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