Where a claim has been located by a citizen, and he dies leaving an alien heir, the latter is in the situation of an alien locator. His claim is good against all the world except the United States.12

LAND OFFICE EMPLOYES.

48. General land officers, clerks, and employés are prohibited by statute from purchasing or becoming interested in the purchase of public lands. While one state decision intimates that a location by such an employé is absolutely void, and hence can pass no title to an innocent purchaser, it is believed that such a location is only voidable, and that innocent purchasers will be protected. Whether deputy United States mineral surveyors are covered by the above-mentioned statute is a matter on which there are conflicting decisions. The better view seems to be that they are covered by it.

It has been held in a Utah case that under Rev. St. U. S. § 452 (U. S. Comp. St. 1901, p. 257), prohibiting officers, clerks, and employés of the General Land Office from purchasing or becoming interested in the purchase of public lands, the locating of a mining claim by a deputy mining surveyor of the government is void, and he can convey no rights in the claim to another.13 This is but a state decision, for the United States Supreme Court, when the case came before it, avoided the point by basing its decision on the ground that the land was not open to location.14 The whole tenor of the Utah decision is that the location by the deputy mineral surveyor is absolutely void, whereas the protection of innocent purchasers requires that a rule like that applicable to locations by aliens be applied. It is upon this ground only that a recent Nevada decision15 upholding a location by a deputy mineral surveyor can be supported. While the court seems to have been in error in the last-mentioned case in saying that deputy United States mineral surveyors are not covered by the above-mentioned statute, nobody but the government could possibly object to a location by a deputy mineral surveyor, and the court was therefore right in its decision, but erred in the reason given for it. The dissenting judge in the case being discussed seems right in adhering "to the broader construction that clerks, officers, and employés in the General Land Office include officers, clerks and employés in the offices.

12 BILLINGS v. ASPEN MINING & SMELTING CO., 51 Fed. 338, 2 C. C. A. 252, 52 Fed. 250, 3 C. C. A. 69; LOHMANN v. HELMER (C. C). 104 Fed. 178.

13 LAVAGNINO v. UHLIG, 26 Utah, 1, 71 Pac. 1046, 99 Am. St. Rep. 808. 14 Lavagnino v. Uhlig, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119. 15 Hand v. Cook (Nev.) 92 Pac. 3.

of the surveyors general and the local land offices, which are merely arms or branches of the General Land Office," 16 but he also erred in regarding the location as absolutely void.

The land department properly refused to allow a mineral entry by a deputy United States mineral surveyor who was interested in the mining claim at the time of survey or of application for patent,17 and doubtless will continue to do so until the matter is regulated by further federal legislation, or settled by a decision of the United States Supreme Court.18

CORPORATIONS.

49. Mining locations may legally be made by corporations created under the laws of the United States or of a state or territory of the United States. Other corporations are aliens, and governed by those rules in regard to locations by aliens which can apply to corporations.

It would seem that a corporation is only one person, and not “an association of persons," so far as the placer mining laws are concerned.

A corporation created under the laws of the United States, or of a state or territory of the United States, and having corporate powers which, as such, permit it to make a mining location, is competent to make such a location by itself or to join with others in making one.19 Even if a location is ultra vires, that fact still leaves the location like an ultra vires purchase of land, and therefore it is valid until assailed in a direct proceeding brought by the state creating the corporation.20 A corporation organized under the laws of a state or territory of the United States is a citizen of the United States within the meaning of the mining statutes, and therefore may locate, pur

16 Hand v. Cook (Nev.) 92 Pac. 12. Compare Prosser v. Finn, 208 U. S. 67. 28 Sup. Ct. 225, 227, 52 L. Ed. 392, where special agents of the General Land Office were held to be within the statute because "they have official connection with the General Land Office and are under its supervision and control with respect to the administration of the public lands."

17 Floyd v. Montgomery, 26 Land Dec. Dep. Int. 122; Frank A. Maxwell, 29 Land Dec. Dep. Int. 76; W. H. Leffingwell, 30 Land Dec. Dep. Int. 139. The deputy mineral surveyor's appointment was revoked for that reason in Seymour K. Bradford, 36 Land Dec. Dep. Int. 61.

18 As the matter has been brought to the attention of Congress, it will probably be settled by legislation.

19 MCKINLEY v. WHEELER, 130 U. S. 630, 9 Sup. Ct. 638, 32 L. Ed. 1048; Thomas v. Chisholm, 13 Colo. 105, 21 Pac. 1019.

20 Rose No. 1 and Rose No. 2 Lode Claims, 22 Land Dec. Dep. Int. 83. See Union Nat. Bank of St. Louis v. Matthews, 98 U. S. 621, 628, 25 L. Ed. 188.

chase, and hold a mining claim.21 The only question in regard to such a corporation has been whether all of the incorporators had to be citizens of the United States for the corporation to be a citizen. That question has arisen because in McKinley v. Wheeler 22 the Supreme Court of the United States said that a state corporation, “all of whose members are citizens of the United States," could hold a mining claim. That dictum, however, does not say that all must be citizens, and seems satisfactorily met in Doe v. Waterloo Min. Co., where it was held that under the mining laws, as in the case of the statutes and constitutional provisions governing the jurisdiction of the federal courts, it will conclusively be presumed that all the stockholders of a corporation are citizens of the state chartering the corporation. 23

Strictly foreign corporations are aliens, of course, and subject to the rules affecting aliens, except so far as their inability to be naturalized necessarily makes a difference.

Corporations and Placer Locations.

With reference to placer mining locations a special corporation question arises. Doubt exists there because the placer mining statutes allow one person to embrace only 20 acres in one location, while an association of persons not less than eight in number may include 160 acres in one location. The query has arisen whether under the placer laws a corporation is merely "one person," entitled to locate only 20 acres, or whether, if it has eight or more incorporators, it is "an association of persons" entitled to locate 160 acres of placer ground. The query is based on the language of the United States Supreme Court in McKinley v. Wheeler, where the court held that a private corporation formed under the laws of a state could locate a mining claim, but added: "There may be some question raised as to the extent of a claim which a corporation may be permitted to locate as an original discoverer. It may perhaps be treated as one person, and entitled to locate only to the extent permitted to a

21 North Noonday Min. Co. v. Orient Min. Co. (C. C.) 1 Fed. 522, 6 Sawy. 299, 316. Where the complaint in an adverse suit alleges and the answer admits that plaintiff is a domestic corporation, the citizenship of plaintiff's stockholders need not be proved. Jackson v. White Cloud Gold Min. & Mill. Co., 36 Colo. 122, 85 Pac. 639; Doe v. Waterloo Min. Co., 70 Fed. 455, 17 C. C. A. 190.

22 130 U. S. 630, 9 Sup. Ct. 638, 32 L. Ed. 1048.

23 DOE v. WATERLOO MIN. CO., 70 Fed. 455, 17 C. C. A. 190. To the same effect is Jackson v. White Cloud Gold Min. & Mill. Co., 36 Colo. 122, 85 Pac. 639. Compare opinion, 28 Land Dec. Dep. Int. 178. See Princeton Min. Co. v. First Nat. Bank of Butte, 7 Mont. 530, 19 Pac. 210.

single individual. That question, however, is not before us and does not call for an expression of opinion." 24

Considering that it requires at least eight bona fide locators to make a valid placer location of 160 acres, locators who lend their names under an agreement to convey without consideration being regarded as engaging in such a fraud against the government that the location is void, 25 and considering that a corporation is really in the eyes of the law for most purposes one person, it certainly seems to be clear that a corporation is only one person, entitled to include only 20 acres in one placer location, rather than an association of persons. The placer law must have meant by an "association of persons" a number of individual locators, whether natural or corporate, or both, joining together to make a common location. At any rate, until the United States Supreme Court shall determine that a corporation is an association of persons within the meaning of the placer act, it would be very risky for any intending locators to act as if it were such. 27

MINORS.

50. Minors may locate mining claims.

Minors may locate mining claims, as well as adults; the statute saying nothing as to age. 28 They may, of course, take mining claims by descent.

AGENTS.

51. Mining locations may be made for principals by agents.

The matter is

One may locate a mining claim by his agent." governed by general agency principles, and, as the authority need

24 MCKINLEY v. WHEELER, 130 U. S. 630, 636, 9 Sup. Ct. 638, 32 L. Ed. 1048.

25 Mitchell v. Cline, 84 Cal. 409, 24 Pac. 164; Gird v. California Oil Co. (C. C.) 60 Fed. 531. See Durant v. Corbin (C. C.) 94 Fed. 382.

26 But see 1 Lindley on Mines (2d Ed.) § 449. Compare United States v. Trinidad Coal & Coking Co., 137 U. S. 160, 11 Sup. Ct. 57, 34 L. Ed. 640.

27 See GIRD v. CALIFORNIA OIL CO. (C. C.) 60 Fed. 531, 545, where the court found that an attempted placer location of a little over 48 acres made by three natural persons was in fact made by them for a private corporation, and therefore must be limited to 20 acres of land.

28 THOMPSON v. SPRAY, 72 Cal. 531, 14 Pac. 182. This does not apply to coal lands. Compare Davis v. Dennis, 43 Wash. 54, 85 Pac. 1079.

29 DUNLAP v. PATTISON, 4 Idaho, 473, 42 Pac. 504, 95 Am. St. Rep. 140; Schultz v. Keeler, 2 Idaho, 333, 13 Pac. 481; Whiting v. Straup (Wyo.) 95 Pac.

not be in writing, an oral authorization or ratification is enough. Moreover, as a locator is presumed to assent to a location when his assent to a deed of realty would be presumed,31 ratification may often be proved by the absence of dissent after notice. 32 While the legal title inures to the principal by the location, the authority to locate may also be accompanied by the authority to abandon, and, if it is, then the principal will be bound by the abandonment. 33 An agent who locates a mining claim for and in the name of his principal, without any contract to acquire an interest therein, does not acquire any interest in the claim. 34

In making the location, the correct form is for the agent to act in the principal's name, signing all notices "A., by B., Agent." Yet, if he simply signs the principal's name, that should be enough. Since the authority to act may be oral, the proof that the name was signed by such authority may well be oral. A careful miner, however, will take no chances.

If an agent locates for himself claims which he was employed to locate for his principal, he will be held a trustee for the latter. 35 On relocations by agents, see chapter XVII, infra.

849; Moore v. Steelsmith, 1 Alaska, 121; McCulloch v. Murphy (C. C.) 125 Fed. 147; Murley v. Ennis, 2 Colo. 300; Rush v. French, 1 Ariz. 99, 25 Pac. 816; MOORE v. HAMERSTAG, 109 Cal. 122, 41 Pac. 805. See Book v. Justice Min. Co. (C. C.) 58 Fed. 106.

30 Murley v. Ennis, 2 Colo. 300; MOORE v. HAMERSTAG, 109 Cal. 122, 41 Pac. 805.

31 Gore v. McBrayer, 18 Cal. 582, 588; Kramer v. Settle, 1 Idaho, 485; Van Valkenburg v. Huff, 1 Nev. 142, 149. But see Thompson v. Spray, 72 Cal. 531, 14 Pac. 182.

32 That ratification will defeat a location subsequent to that ratified, though prior to ratification, see RUSH v. FRENCH, 1 Ariz. 99, 25 Pac. 816. Bringing a suit to quiet title is sufficient ratification. Thompson v. Spray, 72 Cal. 528,.14 Pac. 182.

33 KINNEY v. FLEMING, 6 Ariz. 263, 56 Pac. 723. See, also, Sharkey v. Candiani, 48 Or. 112, 85 Pac. 219, 7 L. R. A. (N. S.) 791.

34 McMahon v. Meehan & Larson, 2 Alaska, 278.

35 Copper River Mining Co. v. McClellan, 2 Alaska, 134.