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work thereon, either sink new shafts and run new tunnels, or continue the work upon such shafts or tunnels as may have been constructed by parties who had abandoned the Very respectfully,

same.

U. J. BAXTER, Acting Commissioner.

No. 20. Manner in which certificate should issue on application of incorporated companies, and by associations of persons not incorporated.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., September 11, 1873.

Register and Receiver, Carson City, Nevada.

GENTLEMEN: In all cases where incorporated companies apply for patents for mining claims, you will require a copy of their certificate of incorporation, or charter, to be filed with the application for patent.

Where an association of persons unincorporated apply for a patent, the published notice, the Register's certificate of entry, and the Receiver's receipt should give the names of all the applicants.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

No. 21. 1. In case of discrepancy in name, identity may be proved. 2. Full copies of conveyances not necessary. Abstract thereof sufficient. 3. Claimant, who must make affidavit of posting of notice and plat upon claim, not necessarily one of the original locators. If assignment has been made, the assignee becomes the claimant.

4. Locators should possess the qualification of citizenship.

DEPARTMENT OF THE INTERIOR, WASHINGTON, D. C., January 2, 1875. SIR: I have examined the case of Warren Hussey et al., applicants for the Kempton Mine, situated in the West Mountain mining district, Salt Lake county, Utah, on appeal by the Galena Silver Mining Company, from your decisions of September 30 and November 10, 1874. 1. It is objected that it does not appear that B. F. Buck, one of the original locators of the Kempton Mine, has ever transferred his interest in the same.

Names are arbitrary.

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The original application for the Kempton patent, which is sworn to by five different persons, alleges that "Samuel

Buck, under the name of B. F. Buck," was one of the original locators, and that the said Samuel had transferred his interest in the mine to John Segus, who was one of the applicants for patent. There is, in the abstract of title furnished, a certificate of the Recorder, of the conveyance from Samuel Buck to the said Segus. I think this is sufficient. Names are arbitrary. Identity is the important matter, and the identity of Samuel Buck with the B. F. Buck, of the location, is satisfactorily shown.

Abstract of conveyances sufficient.

2. It is further objected, that full and complete copies of the respective conveyances, showing title in applicants, are not set forth in the records. It is conceded that brief abstracts of the contests are set forth. Under the rules and regulations, I think this is sufficient. If more should be required the rules should be changed.

Claimant referred to not necessarily one of the original locators.

3. It is also objected that there is no affidavit of the proper party that the plat and notice were posted in a conspicuous place on the claim during the period of publication. The sixth section provides that "at the expiration of the sixty days of publication, the claimant shall file his affidavit, showing that the plat and notice has been posted in a conspicuous place on the claim during said period of publication." It is argued that the claimant referred to is one of the original locators. I think that this is not necessarily so.

When the original locators make the application for patent, then one of them must make the affidavit, but when the original locators have assigned their interest, and the application is made by the assignees, then the assignees are the claimants, and one of them may make this affidavit. In this case, it was first made by R. T. Anderson, the superintendent of the mine, and afterwards by Colbath, who is one of the present applicants, and is, therefore, one of the claimants, within the purview of the sixth section.

4. It is also objected that there is no sufficient proof that the plat and notice were posted in a conspicuous place on the claim. The objection is not that there was not a plat and notice posted on the claim, but that there is no proof what plat and notice were thus posted.

The sixth section provides that the applicant for patent shall file in the proper land office, under oath, an application, together with a plat and field notes, of the claim made by the authority of the United States Surveyor-General, "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 patent, aud shall file an affidavit of at least two persons that such notice has been duly posted as aforesaid, and shall file a copy of said notice in such land office, and shall thereupon be entitled to a patent," etc.

The application for patent in this case alleges that the notice of intention to apply for a patent, together with a plat of the survey of said mine, was duly posted upon the same on the thirty-first day of October, A. D. 1873, in a conspicuous place, as will appear by the affidavit of W. A. Watson and Henry Curran, herewith submitted, marked Exhibit "E." When the papers reached this department, "Exhibit E" was found in its proper place in the application, but there was found detached from the application an affidavit of W. A. Watson and Henry Curran, marked in red ink “Exhibit E," in the same handwriting in which the other exhibits attached to the application were written. This affidavit stated that a plat and notice of which the attached are true copies, were posted conspicuously on the Kempton mining claim on the thirty-first day of October, a. D. 1873; that the affiants were present, and saw the same so posted."

There is also found among the papers a plat of the survey of said Kempton mine, certified to by the Surveyorgeneral of Utah, numbered 19, dated October 1, 1873, and a notice of application for patent, partly written and partly printed, dated October 11, 1873, and in due form. This plat and notice bear physical evidence that they have been attached to the affidavit of Watson and Curran. The evidence of the attachment of the plat and notice. amounts to absolute demonstration. * * *The evidence

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of the attachment of the notice and affidavit is not so complete, but it is quite satisfactory. *** I entertain no doubt of the fact that a plat and notice, of which those above referred to as a part of "Exhibit E" were either copies or duplicate originals, were duly posted on the claim,

and for the period of publication, and I therefore overrule the last named objection.

5. Finally, it is further objected that there is no allegation or proof that the original locators of the Kempton mine were citizens of the United States, or that they had declared their intention to become such at the time the location was made.

The application, after setting out the location and transfer of said claim, alleges "that all the above-named locators of said claim and their grantees are citizens of the United States."

This is the only allegation or proof on this point contained in the entire record.

The first section of the act of May 10, 1872, provides “that all 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."

The sixth section provides "that 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 act, having claimed," etc. These provisions, and those of the Mining Act of July 26, 1866, and of the pre-emption and homestead acts, indicate clearly, to my mind, the intention of Congress that no one but a citizen, or a person who had declared his intention to become such, should have the privilege of locating a mine, or acquiring a patent therefor. Locators should possess qualification of citizenship.

The language is too clear to admit of any other construction. I suppose the reason of the rule was to prevent foreigners who might be inimical to the well-being and prosperity of the government, from obtaining possession and control of the vast interests which grow out of the mineral lands of the United States.

I do not wish to be understood as deciding that a person

who is not a citizen, or has not declared his intention to become such, can not make a location of a mine or dispose of it, provided he afterward becomes a citizen before he disposes of the mine.

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'Naturalization has a retroactive effect, so as to be deemed a waiver of all liability to forfeiture. Osterman v. Baldwin, 6 Wall. 122.

Naturalization after sale.

An assignor can transfer no greater interest to his assignee than he himself possesses. While he is unnaturalized, he has no right to locate a mine. If he does so, and disposes of it before naturalization, a subsequent naturalization would not, in my opinion, save his location. If, therefore, it appeared in this case that the original locators were not citizens, or had not declared their intention to become such at the time their location was made, and that they had not become citizens when they transferred the mine, I should have no hesitation in holding that the transfer was invalid and the claim of the applicants was not good.

Presumption in favor of locator's qualification.

But there is no such allegation or proof in this case, and I should not be justified in presuming a state of fact which would work a forfeiture of the claim. The allegations or pleadings (if I may be allowed the expression) in proceedings of this kind, should be construed liberally, as I have heretofore held, and not, as at common law, most strongly against the pleader. Under this rule of construction, I find myself obliged to overrule the objection as to citizenship, which is accordingly done.*

I affirm your decision, and return herewith the papers transmitted with your letter of the twelfth day of November last. Very respectfully,

Commissioner General Land Office.

C. DELANO, Secretary.

* In the case of Golden Fleece Co. v. Cable Con. Co., 12 Nev. 313, it was held, there being no evidence to show that the alleged alien colocators were aware of his disability, or were colluding with him, that the law would be sufficiently vindicated by holding the alien's claim void.

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