tion, and arises from the acts of the parties themselves, and whether there is or is not abandonment is a question for the jury (King v Edwards, 1 Mont. 245; Weill v. Lucerne Mining Company, 11 Nev. 210; Roberts v. Unger, 30 Cal. 676; Mallett v. Uncle Sam Mining Company, 1 Nev. 215; St. John v. Kidd, 20 Cal. 263; Richardson v. McNulty, 23 Cal. 339). In this last case the judge said, "There can be no abandonment except where the right abates and ceases to exist. If it be continued in another by transfer there is no abandonment. But the occupant cannot continue his right in another by mere volition." The re-location of an abandoned mine does not, however, relieve the re-locator from the necessity of doing the same amount of work on his claim as if it were an original location. This work may be done in the old workings, or be commenced de novo (L. O. June, 1876).

claims not

abandoned.

A re-location is frequently made where, owing to the greater Re-location of quantity of surface ground and the larger number of feet allowed to locators under the Act of 1872 than were allowed under the Act of 1866, the parties so locating are desirous of taking the benefits offered them by the former Act, and it also affords to those who have been careless in making their original location and record the opportunity of amending the errors therein, and also allows them to alter the boundaries of their surface ground. The re-location of claims is provided for either by the State or Territorial Laws, or the District Rules.

In every case of a re-location, the record should shew that it is a re-location, and the lode should be so referred to in the certificate as to fully identify it with the one originally located. In fact the Land Office, in cases of applications for a patent for a re-located lode, requires an abstract of the title under the original as well as the second location (L. O. June, 1876).

"The discovery shaft, location stake, and boundary posts, must be found on the ground before any record is made, and if the relocation changes the boundaries, or is made on account of any previous mistake or irregularity, the same should be rectified before recording, and if any substantial change is made in the description it should be set forth" (Morrison, p. 40). And in every case of a re-location the same particularity is required as in making an original location, together with full, positive, and complete evidence in regard to the abandonment (L. O. April, 1876).

Record mus state it is a re-location.

Patents for mineral lands,

how obtained.

10 May, 1872,

c. 152, s. 6, v. 7, p. 92. Cf. Acts of

26 July, 1866,

c. 262, s. 2; and see

§§ 2325, 2327, 2328, 2333.

SEC. 2325. A patent for any land claimed and located for valuable deposits may be obtained in the following manner: Any person, association, or corporation authorized to locate a claim under this chapter, having claimed and located a piece of land for such purposes, who has, or have, complied with the terms of this chapter, may file in the proper Land Office an application for a patent, under oath, showing such compliance, together with a plat and field-notes of the claim or claims in common, made by or under the direction of the United States Surveyor-General, shewing accurately the boundaries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted, and shall file a copy of the notice in such Land Office, and shall thereupon be entitled to a patent for the land, in the manner following: The register of the Land Office, upon the filing of such application, plat, field-notes, notices, and affidavits, shall publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim; and he shall also post such notice in his office for the same period. The claimant at the time of filing this application, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United States Surveyor-General that five hundred dollars' worth of labour

has been expended or improvements made upon the claim by himself or grantors; that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description, to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidavit, shewing that the plat and notice have been posted in a conspicuous place on the claim during such period of publication. If no adverse claim shall have been filed with the register and the receiver of the proper Land Office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shewn that the applicant has failed to comply with the terms of this chapter.

This section shews the manner of procedure to obtain a patent under this Act. The Land Office instructions must also be followed, as they are most material (as to the weight of these instructions in Court, see p. 5). Upon being satisfied that the conditions precedent have been performed in strict accordance with the requirements of the Act, and that no adverse claim has been filed, a patent issues to the applicant for the lode and surface ground embraced in the application.

authorized.

Person, association, or corporation authorized, i.e., must be either Who are citizens, or those who have declared their intention to become citizens (§ 2319). Hence an alien, whether an individual or a cor- Disabilities of aliens. poration, cannot apply for or receive a patent, although after patent has issued they may acquire and hold the same by alienation from the patentee (§ 2326). But where a party files his declaration of intention to become a citizen after the date of location and prior to

Citizens and inchoate citizens only can take the benefit of the Act,

application for patent, he is qualified to make entry, apply for, and receive a patent (L. O. Sept. 1874), but in such a case the affidavit required by § 2321 must shew the date, place, and Court in which he files his declaration (L. O. Aug. 1876).

The mining laws as well as the general land laws of the U. S. are intended to benefit two classes of persons only, viz., citizens of the U. S. and those aliens who have declared their intention to become citizens, whom we may call "inchoate" citizens. Aliens but not aliens. therefore who have not so declared their intention are excluded from the benefits of the Act. And this is also shewn by the fact that a bill was introduced in 1875 into Congress, which proposed to confer the same privileges on aliens that citizens had under this Act, but it failed to become law. Nevertheless aliens may hold mining claims by possession only, but in such a case they are mere trespassers.

Alien cannot patent

nor "adverse" claim.

Alien purchasing patent.

If an alien acquire by purchase the whole or a portion of a mining-claim he cannot obtain a patent for it so long as he is an alien, but upon filing his declaration to become a citizen, his right dates back to his purchase, and he may thereupon obtain a patent (L. O. July, 1876); for his naturalization has a retroactive effect, and removes his disability (Osterman v. Baldwin, 6 Wallace, 116; Jackson v. Beach, Johnson (N. Y.) 401). Nor can an alien transfer his title to a citizen of the U. S., as an assignor can give no better title to his assignee than he himself possesses, but the assignee may, if qualified, re-locate for himself, and upon complying with the law he will be entitled to a patent (L. O. April, 1876)

And just as an alien cannot obtain a patent from the U. S., so he cannot "adverse" or oppose a citizen, or inchoate citizen, who is seeking a patent, it may be, for a part of the very lode which the alien holds by possession (Colorado Terrible Case, L. O. June, 1871) or purchase.

But after a patent has issued from the U. S. an alien may acquire the same by purchase or otherwise from the patentee (§ 2326), nor is there any limit to the number of patented claims that he may so purchase; and it has been decided that a foreign corporation purchasing a patent takes all the rights and is entitled to all the privileges which would have accrued to the original patentees if they had retained their interest in the mine (L. O. Oct. 1875).

After the issuance of the patent (and even before, on all points

except where the title is concerned) the claim is in all respects re- Real estate. garded as real estate, and is governed by the laws of the locus rei sitœ (L. O. Jan. 1869). Hence it becomes necessary to consider what those laws of the State where the mine is situated are in regard to aliens.

In Colorado bonâ fide resident aliens only can hold real and personal property.

In Colorado it is provided by the constitution that "aliens who are, or may hereafter become, bonâ fide residents of the State may acquire, inherit, possess, enjoy, and dispose of property, real and personal, as native-born citizens" (Constitution of Colorado, Act II. s. 27); and in the constitution of Nevada (Act I. s. 16) there is a clause to the same effect, and in nearly the same words. So, also, in California only aliens who are bonâ fide residents are In California. treated as to the holding and disposing of land like native-born

In Nevada.

hold land till office found

citizens (Act I. s. 17). But in the absence of legislation on the The territories subject, aliens can hold and convey property in all the territories (The People v. Folsom, 5 Cal. 373). Hence in the States abovenamed only those aliens who are bonâ fide residents can hold real or personal property, and now resident aliens are excluded (Siemssen v. Bofer, 6 Cal. 250), so that it seems that a foreign corporation, inasmuch as it resides in the place of its incorporation, cannot claim the privileges of a native-born citizen. But by the Common An alien can and Civil Law the right of an alien to hold property is a matter between the alien and the Government, and cannot be called in question in a collateral action between individuals (Racouillat v. Sansevain, 32 Cal. 376). An alien may, in fact, hold by deed until office found, i.e., until an official determination of the matter by the Government upon inquisition had for that purpose (Norris v. Hoyt, 18 Cal. 217; Fairfax v. Hunter, 7 Cranch (U. S. Sup. Ct.) 603). So that it appears that every foreign company which has acquired patented mines in either of the three states above-named, or in a territory where aliens, whether resident or non-resident, cannot hold land as native-born citizens, does so at the risk of inquisition being found against it at the suit of the State Government and of its property being escheated.

aliens.

It sometimes happens in order to avoid the disabilities under Where cestuis which non-resident aliens labour, that foreign corporations have que trust are their property conveyed to trustees who are citizens, or have declared their intention to become citizens, to hold in trust for