pany, and acting in its behalf. It is quite clear, however, from the resolutions of the board of directors of the Atchison, Topeka & Santa Fe Railroad Company that the Wichita & Western Railroad was constructed by that company; that it was owned by that company; and that in January, 1884, the Atchison, Topeka & Santa Fe Railroad Company was resisting the claim of the St. Louis & San Francisco Railway Company to a joint interest therein. This is not a case showing that the Atchison, Topeka & Santa Fe Railroad Company is merely a stockholder in the Wichita & Western Railroad, but the evidence conduced to show that the Atchison, Topeka & Santa Fe Railroad Company, being a great railroad company, operating a long line of road in this state, projected and constructed the Wichita & Western Railroad, and controls and manages the same for the purpose of a local line. We think, therefore, that there was sufficient evidence to sustain the instructions of the court, and justify the verdict and judgment. The trial judge was careful in his instructions to conform to the ruling of this court in Railway Co. v. Ritz, 30 Kan. 31; S. C. 1 Pac. Rep. 27; and said to the jury that "the mere fact that the same men were officers of the Atchison, Topeka & Santa Fe Railroad Company and also of the Wichita & Western Railroad Company was not sufficient evidence to justify a finding that the two companies were one and the same.'

The special findings of the jury are criticised as evasive and untrue. We find that three or four of these were simply answered by the jury, “Don't know." Of course, answers to questions should be direct and positive, and therefore there was an irregularity in the answers. No application was made, however, to the court for the jury to correct their answers; and, in view of the resolutions of the board of directors of the Atchison, Topeka & Santa Fe Railroad Company concerning the construction of a road from Wichita to Kingman, with old iron, to serve the purpose of a local line to be owned by that company, we cannot say that the latter company was likely to be injured or prejudiced by any answer touching the purpose of the incorporation of the Wichita & Western Railroad. Neither do we consider the other defective answers sufficiently material to set aside the verdict, or reverse the judgment. A reading of the record does not convince us that any answer is wholly untrue. "This court will uphold the general verdict, unless the facts, as obviously disclosed by the answers to the special questions, are inconsistent therewith, and compel a different judgment, or unless the answers are so directly and plainly contradictory as to show that the jury gave no intelligent attention to either the testimony or questions, or unless some special facts appear to show that there has been a mistrial or a failure of justice." Railway Co. v. Holley, 30 Kan. 465, 474; S. C. 1 Pac. Rep. 130, 554. The judgment of the district court will be affirmed.

(All the justices concurring.)

SUPREME COURT OF MONTANA.

(6 Mont. 53)

GARFIELD M. & M. Co. v. HAMMER and others.

Filed August 15, 1885.

1. MINING CLAIM-WHAT CONSTITUTES LOCATION.

A valid location of a mining claim is not made by taking possession alone, but by marking on the ground, recording, and doing whatever else is required for the purpose by the acts of congress and the local laws and regulations. 2. SAME-LOCATION NOTICE-CITIZENSHIP PRESUMPTION.

Where the oath attached to the notice of location of a lode by one of the locators states that he and his co-locators are citizens of the United States over the age of 21 years, the presumption that the locators were citizens will protect the title of a party to whom they have transferred their claim, until it is affirmatively made to appear they were not citizens, or had not declared their intention to become such.

3. SAME-IDENTIFICATION OF LAND.

Where a location is described by metes and bounds in a notice otherwise sufficient, and is further described as being 1,500 feet south from a well-known quartz location, and there is nothing in the evidence to contradict such description, distance, and direction, the ground claimed is sufficiently identified. 4. NEW TRIAL-NEWLY-DISCOVERED EVIDENCE.

Newly-discovered evidence that can only affect the credibility of a witness, or that is merely cumulative, is not ground for a new trial.

5. EVIDENCE-CERTIFIED COPY OF LOCATION NOTICE - DEED-ARTICLES OF INCORPORATION-MONTANA STATUTE.

A certified copy of a location notice, or of a deed, or of a certificate of incorporation, is admissible in evidence without first accounting for the original. 6. MINING CLAIM-OPINION OF WITNESS.

A witness who is not a mining expert is not competent to say whether, from an inspection of a shaft, he would have known if any work had been done there.

7. FOREIGN CORPORATION-RIGHT TO DO BUSINESS IN MONTANA,

Under sections 46 and 47 of the Codified Statutes of Montana a foreign corporation is not prohibited from doing business in that territory.

Appeal from Third district, Lewis and Clarke county.

E. W. & J. K. Toole, for appellants, A. O. Hammer and others. Sanders & Cullen, for respondent, Garfield M. & M. Co.

GALBRAITH, J. This is an appeal from an order overruling a motion for a new trial. The action was to quiet title. A trial by a jury was had between the respondent and the appellant Hammer. The pleadings, so far as they were concerned, were in substance as follows: The complaint alleged that the respondent is a body politic and corporate, organized under the laws of the state of New York for the purpose of mining and milling ores, containing the precious metals, in Montana territory, and that it has complied with the laws of that territory in relation to foreign corporations; that it is the owner of a certain quartz-lode mining claim situate in Vaughn (unorganized) mining district, in the county of Lewis and Clarke, and territory of Montana, called the "Garfield Lode or Mining Claim;" that the respondent is now in the possession of the above claim, and that plain

tiff, and its predecessors in interest, have been, ever since the discovery and location of said claim, in the possession of the same, and entitled to be so in possession thereof; that the appellant Hammer, on or about the first day of January, 1883, assumed to enter upon said premises and to relocate the same, and had the relocation recorded in the county of Lewis and Clarke as the "Kinna Lode," and thereby now claims an interest therein, and the possession thereof, adversely to the respondent, and has made application for a patent to the premises under the name of the "Kinna Lode;" that the claim of the appellant is without any right whatever; that the respondent has filed its adverse claim in the land-office, whereby proceedings will be stayed till the final determination of the right to the premises.

The answer denies that the respondent "ever was or is a body politic and corporate, or that it has duly complied with the laws of Montana territory relative to foreign corporations; denies that the respondent is the owner of the premises, or that it is now, or ever was, in the possession thereof; or that it or its predecessors in interest have been, ever since the discovery or location thereof, in possession of the same, or are or were entitled to such possession, or that he assumed to relocate the said premises, or caused any location thereof to be recorded as the 'Kinna Lode,' or that his claim is without right, or that he has not any estate, title, interest, or right to the possession of said premises."

The appellant then founds his claim to the premises by virtue of a certain location made on the first day of January, 1883, by the name of the "Kinna Lode," the premises being then vacant mineral lands of the United States,-such location having been made in full compliance with the laws of congress and Montana territory by one Wolfe; that on the day of January, 1883, the appellant purchased the premises from Wolfe, and ever since the first day of January, 1883, the appellant and his predecessor in interest have been the owners of, held possession, and duly represented, said Kinna Lode, and ever since said time this defendant has been and now is entitled to the possession of the same; that whatever claim the respondent ever had (if any) to said premises was forfeited prior to first January, 1883.

The reply denied all the affirmative allegations set forth in the answer. Upon the trial the court instructed the jury as follows:

"If you believe, from the evidence in the case that prior to the thirty-first day of December, A. D. 1882, the plaintiff was in the quiet and undisputed possession of the premises designated in the complaint as the Garfield Lode,'-the validity of the original location of which is not questioned in the pleadings or testimony, claimed by the defendant as the Kinna Lode; that the boundaries of said claim were so marked upon the surface as to be readily traced; and that theretofore there had been discovered within said boundaries a vein or lode of quartz or other rock, in place, bearing gold, silver, or other precious metals, then this constitutes a prima facie case for the plaintiff, which can only be overcome by the defendant by proof of subsequent abandonment

or forfeiture, or other divestiture, and the acquisition of a better right or title by the defendant."

The above statement of the pleadings shows that the respondent claimed its right to a decree that the title and right to the possession of the premises be adjudged to be in it, upon the allegations of ownership, possession, and right of possession thereto, and that these allegations are denied by the answer.

The allegation of forfeiture in the answer is consistent with these denials. The respondent does not claim the premises by virtue of a patent from the United States, but by virtue of a location made by its predecessors in interest. Now, although the courts of this territory, in determining the title to mining claims where there is a dispute in relation thereto in the land-office, have adopted the forms of action by which title to land is tried, which may be either by the action of ejectment or to quiet title, yet the real question to be determined is, who is entitled to the patent from the United States government to the mining claim in controversy? Or, in other words, who has become the purchaser of the mining claim, and divested the title of the government thereto by complying with the requirements of the laws of congress relative to acquiring title to mineral lands? The right to the possession of a mining claim comes only from a valid location. Consequently, if there is no location there can be no possession under it. Location does not necessarily follow from possession, but possession from location. A location is not made by taking possession alone, but by marking on the ground, recording, and doing whatever else is required for that purpose by the acts of congress and the local laws and regulations. Belk v. Meagher, 104 U. S. 279. Therefore, when the respondent's claim of ownership and right to the possession were put in issue by the answer, it devolved upon the respondent to show affirmatively upon the trial that it had complied fully with all the requirements of the act of congress, and the local rules and regulations, relative to the location of mining claims; that is, that it had made a valid location.

The above instruction, and others of the same tenor, took away from the jury the question of the validity of the original location made by the predecessors in interest of the respondent, and so far as the pleadings were concerned were clearly erroneous. The answer did properly put in issue the validity of the respondent's location. Were these instructions prejudicial to the appellant? The record shows that the appellant did not introduce any evidence whatever tending to invalidate the respondent's location. The only evidence introduced by the appellant affecting the respondent's title was simply relative to the question of forfeiture. The uncontradicted evidence introduced by the respondent upon the trial relative to the location was as follows:

"That the boundaries of said claim were clearly marked upon the surface by stakes set at the corners thereof and elsewhere on said boundaries, and that said boundaries could be readily traced; that there was discovered thereon

a lode of quartz rock, in place, bearing gold and silver; such vein having at least one well-defined wall."

As to the question of citizenship, the oath attached to the certified copy of the location notice of the Garfield lode by one of the locators states that he and his co-locators are citizens of the United States over the age of 21 years. of 21 years. There is nothing in the record indicating that the locators and predecessors in interest of the respondent were not citizens of the United States, or had not declared their intention to become such; and being natural persons they will be presumed to be citizens of the United States until the contrary appears. In Coxe v. Gulick, 10 N. J. Law, 328, referred to in 1 Phil. Ev. 556, Ford, J., held in substance that every man is presumed to be a citizen till the contrary be shown. In People v. Pease, 27 N. Y. 45, which was an action in the nature of a quo warranto to try title to an office, DAVIS, J., says:

"So was that part of the charge correct in relation to the witness Rivinot, who testified that he was born in France and had voted, and there was no evidence tending to show that he had ever been naturalized. The judge in that case charged that the legal presumption was that he had been naturalized. No suggestion was made or evidence given, when the witness was on the stand, that he had not been naturalized. He had voted, and the presumption was that he had voted legally. It was not for the court to say as matter of law that the vote was illegal."

The citizenship of the respondent is established by the fact that it is a corporation formed under the laws of the state of New York. We think that the presumption that the locators and predecessors in interest of the respondent were citizens will protect its title to the property until it is affirmatively made to appear that they were not citizens, or had not declared their intention to become such. The recorded notice of location was, in our opinion, sufficient. The statutes of the United States require that this record should contain three things which are requisite to its validity, viz.: the name or names of the locators, the date of the location, and such a description of the claim or claims located, as by reference to some natural object or permanent monument, as will identify the claim. It is admitted by the appellant that this record does contain the first two requisites, and it is only claimed that it is defective in that it does not refer to some natural object or permanent monument which will identify the claim. It describes the location by metes and bounds as commencing at discovery stake; running 50 feet east to center stake; thence 300 feet north to stake A; thence 1,500 feet west to stake B; thence 600 feet south to stake C; and 1,500 feet east to stake D; and 300 feet north to place of commencement. It then states that "this lode is located about fifteen hundred feet south of Vaughn's Little Jennie Mine,' described and located on the fourth of July, 1880." There was no objection made that the notice of location of the Garfield lode was not filed within 20 days from the discovery thereof, as required by the local law. There is nothing in the evidence indicating that