One who has filed his declaration of intention is still an alien.

Only full

citizens can hold property if nonresidents.

If cestui que trust is an

alien, property is escheatable.

Non-residents' property liable to attachment.

Adverse claim, proceedings on.

10 May, 1872, c. 152, § 7,

themselves. Two questions arise upon this: (a) Whether one who has declared his intention to become a citizen is not, in spite of his declaration within the intent and purport of the State constitutions and statutes an alien? (b) Whether any greater security is offered an alien by reason of his property being held in trust? In answer to the first question it has been decided that one who has declared his intention to become a citizen is nevertheless an alien within the meaning both of the U. S. and the State Laws. He does not acquire the full rights of citizenship until he has taken the final oath (Orosco v. Gagliardo, 22 Cal. 83; Ludlam v. Ludlam, 26 N. Y. 356), so that although the U. S. statute allows inchoate citizens as well as full citizens to obtain a patent to its mineral lands, yet after the patent has issued the lex rei site governs; and it seems that by the State laws only full citizens, and not inchoate citizens, can hold real or personal property, if they are non-residents. So, therefore where any corporation conveys its property to trustees in trust for itself, it seems that if the trustees are aliens they must be bonâ fide residents, and, if non-resident, be full citizens of the U. S.; otherwise there is the risk (a slight one perhaps) of the Government escheating the property. As to the second question, it has been decided in New York State that property cannot be held in trust for an alien without being liable to escheat (Culverhouse v. Beach, 1 Johns. 399). Again, under the laws of all the States and Territories the property of aliens or citizens, if non-resident, is liable to attachment which, when made, can only be dissolved upon the owner giving a bond, with resident sureties, generally in twice the amount claimed. This is frequently the cause of great inconvenience and loss, as non-residents can seldom find parties resident in the State who are able or willing to become sureties for them, especially when the bond is of large amount. It seems that vesting the property in resident trustees, in trust for non-residents, would avoid the danger of attachment at any rate.

As to the conveyance, taxation, &c., of mining claims, see p. 39, infra.

SEC. 2326. Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall shew the nature,

boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a Court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a Court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment-roll with the register of the Land Office, together with the certificate of the Surveyor-General that the requisite amount of labour has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the Court, to rightly possess. If it appears from the decision of the Court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the Surveyor-General, whereupon the register shall

v. 17, p. 93. See § 2325. Cf. § 6 of Act of 26 July, 1866, c. 262.

Intention of

this section to protect rights of third

parties.

by referring the dispute to the Courts.

Identity of veins must be alleged.

certify the proceedings and judgment-roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining-claim to any person

whatever.

This section deals exclusively with adverse claims, and is intended to protect the rights of third parties (who are neither lien holders nor entitled to an easement) against the claim of the applicant (L. O. April, 1872). Its object is to require parties protesting against the issuance of a patent to go into the State Courts of competent jurisdiction, and institute such proceedings as they might, under the different forms of action therein allowed, elect, and there try “the right of possession" to such claim and have the question determined. The Acts of Congress do not attempt to confer any jurisdiction not already possessed by the State Courts, nor to prescribe a different form of action. . . . When the action is brought, whatever its character, it must be tried by the same rules, governed by the same principles, and controlled by the same statutes that apply to such actions in our State Courts, irrespective of the Acts of Congress (420 Mining Company v. Bullion Mining Company, 9 Nev. 240). After notice of the adverse claim is filed, all proceedings are stayed until the "right of possession" is determined by the Courts of competent jurisdiction, which are not necessarily federal Courts (Yale, 373), and what is reasonable diligence" is left to the Courts to determine." After a Court of competent jurisdiction has once decided that an adverse claimant has no title, its decision is final and conclusive as to his rights, and the adverse claimant is thereafter estopped from claiming the land as non-mineral (L. O. March, 1876). It is necessary in the notice of an adverse claim, that the identity of veins should be distinctly alleged (L. O. April, 1872), and where there are conflicting surveys, the one already patented is not allowed to delay application for the other patent, but the ground in conflict will be excluded from the subsequent patent (L. O. Oct. 1875). It seems that if a party omits to

Failure to adverse does not estop party from going into Courts subsequently.

"adverse" another's claim for a patent, according to this section, he may subsequently, after the patent has issued, go before the Courts with a view to upset the patent on the grounds of fraud, or mistake only, provided he does so within the time allowed by the State Statute of Limitations (Johnson v. Towsley, U. S. Sup. Ct.) and in the case of the Chollar Potosi Co. v. Julia Company (L. O. May, 1872), where a patent had issued for a lode, and the patentee attempted to adverse the claim to a patent for an adjoining lode, the identity of which with the adjoining patented lode had not at the time been shewn, the Land Office held that the objections of the Chollar Potosi Company were based “on a contingency which may possibly hereafter occur, and not on anything definite or tangible, and although the veins claimed by the Julia Mining Company may at some remote period in their downward course converge and unite, and below their point of junction form one main fissure, this will not justify the suspension of the U. S. Mining Laws until such hypothesis is demonstrated," and ordered patent to issue to the applicants, leaving their future rights inter se to be settled by § 2336, and the Courts of the State. An alien cannot adverse a Alien cannot claim, as we have already seen, because he is not competent to hold one until patent has been issued therefor.

In the absence of any adverse claim, and upon the requirements of this Act, and the state, or territorial laws, and miner's rules being complied with, a patent issues from the U. S. Government to the claimant. According to the Land Office practice patents issued under the law of 1866 conveyed to the patentee expressly "the surface ground embraced by the exterior boundaries of the survey of the claim, together with the right to follow such vein, with its dips, angles, and variations to any depth, although it may enter the land adjoining," and the grant was restricted to one vein or lode (L. O. Dec. 1872; see repealed sections of Act of 1866, p. 73). But since the Act of the 10th of May, 1872, all patents issued by the Land Office convey to the patentee, (a) the surface ground embraced within the lines of survey, and the exclusive right of possession thereof, (b) the right to follow the vein or lode to the number of feet patented, although it depart from the land embraced in the survey, and enter the adjoining land to any depth, (c) ALL other

D

adverse.

What is conveyed by a patent.

Clause in patents under

Act of 1866.

Under Act of the 10th of

May, 1872, or this Act.

Clause in patents on Comstock Lode.

Words of reservation; lode underlying a township.

Water rights reserved.

What interest passes by U. S. patent.

veins, lodes, or ledges, throughout their entire depth, the apex of which lies inside the boundary lines (L. O. Dec. 26th, 1872).

In all patents for lodes situate near the Comstock Lode in Nevada, the following clause is inserted:

"The claim hereby granted and conveyed shall be subject to the conditions specified in the Act of Congress of the 25th of July, 1866, s. 3 (for granting a right of way and other privileges to aid in the construction of the Sutro Tunnel), and the grantee shall contribute and pay to the owners of the tunnel for drainage and other benefits derived from said tunnel and its branches, the rate of charges agreed upon by the majority in value of the owners of the Comstock Lode, at the time of the passage of the Act." If the lode underlies a township the patent contains the following clause: "Excepting and excluding from these presents all town property rights upon the surface; and there are hereby expressly excepted and excluded from the same all houses, buildings, structures, lots, blocks, streets, alleys, or other improvements, on the surface of the above-described premises, not belonging to the grantees herein, and all rights necessary or proper to the occupation, possession, and enjoyment of the same" (L. O. July, 1873).

So also water rights, already vested, will be reserved and excepted from all patents issued in the mineral regions (L. O. March, 1872). There is also always now (i.e. since May 10th, 1872) a clause in every patent embracing the conditions of § 2338, infra, and if two surveys overlap (a frequent occurrence) there is inserted in each patent a reservation of the surface ground so in conflict. (L. O. Oct. 1875.)

As to the title conferred by a patent from the U. S., there appears to be a conflict of opinion, for it has been held that when a person acquires a U. S. patent to land, he acquires a new title, against which there is no prescription, in other words his patent sweeps away all former titles and pre-existing equities, and confers on him as complete a title as the U. S. Government had (U. S. v. Hughes, 11 Howard (U. S.) 568; Irvine v. Marshall, 20 Howard, 561; Vansickle v. Haines, 7 Nev. 283, Yale, 374); on the other hand there are numerous cases to be found in Kentucky and Virginia, where by proceedings in equity the junior patent has been held to be a better