proximity to known mines or wells producing oil. He must make his location in good faith, and use proper diligence to make discovery of oil. If he does not do so, he will lose his rights under his location as to parties who may afterwards in good faith acquire rights. But where the locator is in possession under his location, and is actively at work, through his lessees or otherwise, and expending money for the purpose of discovering oil, his rights cannot be forfeited to third parties, who attempt to make locations under such circumstances. The law must be given a liberal and equitable interpretation, with a view of protecting prior rights acquired in good faith." 71

But while very considerable labor and expense is necessarily expended in making an oil or gas discovery, and in consequence the oil or gas prospector should be dealt with liberally on the question of when a discovery has been made, and should be given as large as possible a pedis possessio, it still remains true that the first discoverer who can locate peaceably must be given priority over prior prospectors. 72 What we found to be true of lode claims in this regard must also be true of placers. Moreover, it is true in placer mining, as in lode mining, that a discovery to sustain a location may be made, although what is discovered will not pay to work at the start." The line must be drawn between indications disclosing merely a possibility of oil, where, of course, nothing has really been discovered, and the ascertained presence of oil in a situation to justify a prudent person in the expenditure of money. and labor in exploitation for petroleum. Whether a discovery has been made in a given case is, of course, a question of fact under all the circumstances of that case. It is not possible, however, to locate as placer any lands which are chiefly valuable for ores found in them in lodes."

73

74

71 WEED v. SNOOK, 144 Cal. 439, 77 Pac. 1023, 1026; Hanson v. Craig (C. C. A.) 161 Fed. 861. See New England & Coalinga Oil Co. v. Congdon (Cal.) 92 Pac. 180.

72 Whiting v. Straup (Wyo.) 95 Pac. 849; Redden v. Harlan, 2 Alaska, 402.. But see Hanson v. Craig (C. C. A.) 161 Fed. 861. Prior to a discovery by the locator, others may by legal means acquire title from the United States. Olive Land & Development Co. v. Olmstead (C. C.) 103 Fed. 568. But in Biglow v. Conradt (C. C. A.) 159 Fed. 868, an extension of boundaries not based on a discovery in the added ground was not allowed to cover land embraced in an attempted location in the possession of locators who about two months later made their discovery.

73 See NEVADA SIERRA OIL CO. v. HOME OIL CO. (C. C.) 98 Fed. 673, 676; Gregory v. Pershbaker, 73 Cal. 109, 14 Pac. 401.

74 CHRISMAN v. MILLER, 197 U. S. 313, 323, 25 Sup. Ct. 468, 49 L. Ed. 770; New England & Coalinga Oil Co. v. Congdon (Cal.) 92 Pac. 180.

75 Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525, 69 S. W. 572, 576, 91 Am. St. Rep. 87. See Bevis v. Markland (C. C.) 130 Fed. 226.

Number of Acres for One Discovery.

*

76

The question of discovery in the case of placers has been complicated by a question as to the necessity of separate discoveries on each 20 acres of a joint location of 160 acres. In placers the unit of a placer location is 20 acres, "and two or more persons, or association of persons, having contiguous claims of any size, may make joint entry thereof; but no location of a placer claim shall exceed one hundred and sixty acres for any one person or association of persons." The land department for a long time held that, where an association of eight persons located 160 acres as a placer, there must be a separate discovery for each 20 acres; " but that ruling has been reversed, and one discovery is now enough for one joint location.78 The land department still insists, however, that "while a single discovery is sufficient to authorize the location of a placer claim, and may, in the absence of any claim or evidence to the contrary, be treated as sufficiently establishing the mineral character of the entire claim to justify the patenting thereof, such single discovery does not conclusively establish the mineral character of all the land included in the claim, so as to preclude further inquiry in respect thereto.” 7o

Number of Locations for Each Discoverer.

Except where special provision, such as exists in the case of coal lands, is made by Congress, as many placer claims may be located by one individual as separate discoveries will warrant.

76 Rev. St. U. S. § 2330 (U. S. Comp. St. 1901, p. 1432).

77 Ferrell v. Hoge, 18 Land Dec. Dep. Int. 81; Union Oil Co., 23 Land Dec. Dep. Int. 222.

78 Union Oil Co. (on review) 25 Land Dec. Dep. Int. 351; Terrell v. Hoge, 27 Land Dec. Dep. Int. 129; Miller v. Chrisman, 140 Cal. 440, 73 Pac. 1083, 74 Pac. 444, 98 Am St. Rep. 63; Whiting v. Straup (Wyo.) 95 Pac. 849.

79 Ferrell v. Hoge (on review) 29 Land Dec. Dep. Int. 12, 15. A discovery and location on 80 acres will not justify taking in another and adjoining 80 acres as a consolidated claim of 160 acres. Weed v. Snook, 144 Cal. 439, 77 Pac. 1023.

CHAPTER XI.

WHO MAY AND WHO MAY NOT LOCATE MINING CLAIMS.

"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." Rev. St. U. S. § 2319 (U. S. Comp. St. 1901, p. 1424).

Before we take up the acts of location, it is desirable to inquire who may perform those acts. Anybody may make a discovery, but only citizens of the United States and those who have declared their intention to be such are expressly authorized to locate mining claims.1 We shall therefore take up first the question of location by an alien, and then discuss a location by a land office employé, by a corporation, by a minor, and by an agent.

ALIENS.

47. While aliens are not authorized to locate mining claims, an alien's location may be questioned only in an adverse suit where an alien is applying for patent, or in direct proceedings brought by the United States while the alien still owns the claim. The question of citizenship is an issue in an adverse suit only because the United States is a silent party to the suit, and the alien may make his location valid ab initio by taking out his first naturalization papers after suit is commenced.

Effect of Location by an Alien.

Whatever may have been the intention of the framers of the act of 1872 (Act May 10, 1872, c. 152, § 3, 17 Stat. 91 [U. S. Comp.

1 Rev. St. U. S. § 2319 (U. S. Comp. St. 1901, p. 1424). That certain Filipinos may now be naturalized, see opinion, 37 Land Dec. Dep. Int. (advance sheets) 86. Married women who are citizens may, of course, locate mining claims.

St. 1901, p. 1425]), with reference to the point, it is now well settled that a location by an alien or the transfer of an existing location to him is valid except against direct attack by the government while the alien still owns the land, or except when questioned in an adverse suit where the alien is applying for patent or is adversing.2 Moreover, if pending the trial of the adverse suit the alien takes out his first naturalization papers, his location becomes valid ab initio. Except in adverse suits, and except in direct proceedings brought by the United States government, the citizenship of the parties need neither be alleged nor proved, unless, as in the case of the federal courts, such allegation and proof are needed to give the court jurisdiction. It seems fair to say that even in adverse suits a presump-. tion exists that a resident locator is a citizen. In any event, the citi

2 MCKINLEY CREEK MINING CO. v. ALASKA UNITED MIN. CO., 183 U. S. 563, 22 Sup. Ct. 84, 46 L. Ed. 331; TORNANSES v. MELSING, 109 Fed. 710, 47 C. C. A. 596; Stewart v. Gold & Copper Co., 29 Utah, 443, 82 Pac. 475, 110 Am. St. Rep. 719; BILLINGS v. ASPEN MINING & SMELTING CO., 51 Fed. 338, 2 C. C. A. 252; Id., 52 Fed. 250, 3 C. C. A. 69; LONE JACK MINING CO. v. MEGGINSON, 82 Fed. 89, 27 C. C. A. 63; Providence Gold Mining Co. v. Burke, 6 Ariz. 323, 57 Pac. 641; Gorman Mining Co. v. Alexander, 2 S. D. 557, 51 N. W. 346. See Territory v. Lee, 2 Mont. 124. The doctrine announced in Wilson v. Triumph Consol. Min. Co., 19 Utah, 66, 56 Pac. 300, 75 Am. St. Rep. 718, and in Golden Fleece Gold & Silver Min. Co. v. Cable Consol. Gold & Silver Min. Co., 12 Nev. 312, that a citizen may relocate land located by an alien and still held by the latter, if only the relocation is peaceable, cannot be supported. TORNANSES v. MELSING, 109 Fed. 710, 47 C. C. A. 596. Compare a similar ruling in regard to a state statute requiring foreigners to pay a license fee for the privilege of mining. People v. Naglee, 1 Cal. 232, 52 Am. Dec. 312; Mitchell v. Hagood, 6 Cal. 148.

3 LONE JACK MINING CO. v. MEGGINSON, 82 Fed. 89, 27 C. C. A. 63; Ferguson v. Neville, 61 Cal. 356; Gorman Mining Co. v. Alexander, 2 S. D. 557, 51 N. W. 346; Id., 3 S. D. 3, 51 N. W. 349; MANUEL v. WULFF, 152 U. S. 507, 14 Sup. Ct. 651, 38 L. Ed. 532; Shea v. Nilima, 133 Fed. 209, 66 C. C. A. 263. See Croesus Mining, M. & S. Co. v. Colorado Land & M. Co. (C. C.) 19 Fed. 78; Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419.

4 Harris v. Kellogg, 117 Cal. 484, 49 Pac. 708; Buckley v. Fox, 8 Idaho, 248, 67 Pac. 659; Gruwell v. Rocca, 141 Cal. 417, 74 Pac. 1028. In Buckley v. Fox, supra, the state statute authorized locations by aliens not of Mongolian descent. Such a statute would seem ineffective to prevent direct proceedings by the United States.

5 JANTZON v. ARIZONA COPPER CO., 3 Ariz. 6, 20 Pac. 93; Garfield Min. & Mill. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153. The issue of citizenship is properly raised in an adverse suit, as it is in effect made on behalf of the government. MATLOCK v. STONE, 77 Ark. 195, 91 S. W. 553. See McFeters v. Pierson, 15 Colo. 201, 206, 207, 24 Pac. 1076, 22 Am. St. Rep. 388; Tonopah Fraction Mining Co. v. Douglass (C. C.) 123 Fed. 936, 941; Wilson v. Triumph Consol. Min. Co., 19 Utah, 66, 56 Pac. 300, 75 Am. St. Rep. 718.

For a case showing on how slight evidence a court will find citizenship, see Strickley v. Hill, 22 Utah, 257, 62 Pac. 893, 83 Am. St. Rep. 786.

zenship of a locator is immaterial, except where he has not parted with title prior to the raising of the question in an adverse suit, where the question of citizenship is involved, or prior to direct proceedings brought by the United States government."

Special Acts about Aliens.

What is said above applies only to the requirement of Rev. St. U. S. § 2319 (U. S. Comp St. 1901, p. 1424). Under the federal alien act of March 3, 1887,7 as amended by the act of March 2, 1897,8 aliens may acquire and hold by purchase in the United States territories possessory as well as patented claims. Whether that permits an alien to locate in the United States territories a mining claim that will be valid against the government on direct attack or in adverse suits is as yet undetermined. So by the act of May 14, 1898. native-born citizens of the Dominion of Canada are accorded the same mining rights and privileges in Alaska as Canada accords in British Columbia and the Northwest Territory to citizens of the United States. 10

Effect of Patent on Rights of Aliens.

After a claim has been patented to a citizen, the question of whether it may be acquired by an alien depends on the state laws. A patent issued to a citizen who took in trust for an alien is doubtless subject to direct attack by the United States government, except where prior to the attack title is conveyed to innocent purchasers.11

• If a citizen and an alien jointly locate a claim and convey it to a citizen, the latter gets a valid title. North Noonday Min. Co. v. Orient Min. Co. (C. C.) 1 Fed. 522, 6 Sawy. 299; Wilson v. Triumph Consol. Min. Co., 19 Utah, 66, 56 Pac. 300, 75 Am. St. Rep. 718; Providence Gold Mining Co. v. Burke, 6 Ariz. 323, 57 Pac. 647; Strickley v. Hill, 22 Utah, 257, 62 Pac. 893, 83 Am. St. Rep. 786. See Stewart v. Gold & Copper Co., 29 Utah, 443, 82 Pac. 475, 110 Am. St. Rep. 719.

The interest of the citizen co-locator is, of course, valid, even against the government, unless he colludes with the alien. Golden Fleece Gold & Silver Min. Co. v. Cable Consol. Gold & Silver Min. Co., 12 Nev. 312. the effect of knowledge that one's co-locator is an alien?

Query as to

7 24 Stat. 476, c. 340, § 1 (U. S. Comp. St. Supp. 1907, p. 776). 29 Stat. 618, c. 363, § 2 (U. S. Comp. St. Supp. 1907, p. 778). The land department thinks that an alien in the territories is given by the act of March 2, 1897, no right to occupy or purchase from the government any mining claims. See opinion, 28 Land Dec. Dep. Int. 178.

10 30 Stat. 415, c. 299, § 13 (U. S. Comp. St. 1901, p. 1424). According to the land department this act "never has been operative for the reason that the only mining rights and privileges granted to any person by the laws of the Dominion of Canada are those of leasing mineral lands upon the payment of a stated royalty, and the mining laws of the United States make no provision for such leases." Instructions, 32 Land Dec. Dep. Int. 424, 445.

11 Justice Min. Co. v. Lee, 21 Colo. 260, 40 Pac. 444, 52 Am. St. Rep. 216.