North Noonday Mining Co. v. Orient Mining Co.

• Decision Date: 06 October 1880
• Citation: 11 F. 125
• Parties: NORTH NOONDAY MINING CO. v. ORIENT MINING CO.
• Court: United States Circuit Court, District of California

11 F. 125

NORTH NOONDAY MINING CO. v. ORIENT MINING CO.

United States Circuit Court, D. California.

October 6, 1880

Stewart Van Clief & Herrin, for plaintiff.

R. M Clark and George B. Merrill, for defendant.

SAWYER C.J.

All the points made by defendant on motion for new trial were fully argued and considered at the trial, and I see no good reason for changing the rulings then made. The point most confidently relied on by defendant seems to be the admission of the affidavit of Smith to prove his citizenship. I am not entirely certain that any other evidence was necessary to raise the presumption of citizenship than the fact that he had resided in the United States from his infancy,-- during all the period of his remembrance,-- he having no personal knowledge of having been alien born, and no recollection of ever living elsewhere; and there being no evidence from any one having knowledge that he was foreign born. If this be so then there is no evidence to overthrow the presumption, other than his statement that he was informed that he was born in Ireland, and brought to this country by his parents when two years old; and this is but hearsay; and his counter-statement that he was informed in the same manner and had always understood that his father became naturalized while he was a boy, is, at least, as good. If the hearsay evidence was inadmissible and proves nothing upon the one point, it was equally so on the other. It must all be taken or all be rejected together. But if it was necessary to make this additional proof, the affidavit was, undoubtedly, inadmissible upon the general principles of evidence unaffected by statutory provisions.

The statute, however, has made especial provisions for such cases in section 2321, which says: 'Proof of citizenship under this chapter may consist, in the case of an individual, of his own affidavit thereof; in the case of an association of persons unincorporated, of the affidavit of their authorized agent, made on his own knowledge, or upon information and belief. ' This provision must of necessity contemplate an affidavit to some extent based on information and belief, for no man can, of his own personal knowledge, state where he was born. It is an event occurring before he has acquired a capacity to remember. It also substitutes an affidavit for the record in this case of one having been naturalized. It also contemplates an affidavit on information and belief where the naturalization of persons other than the party making the affidavit are concerned, for the affidavit of the 'authorized agent' of associations not incorporated may be 'upon information and belief.' It might be utterly impracticable for a person whose father had been naturalized and moved to some distant territory, and died during his infancy, as is supposed to be the case in this instance, to ascertain in which one of the hundreds of courts in the United States, having jurisdiction, the father was naturalized. At all events, in view of the practical difficulties in making the proofs, or for some other reason, the statute has modified the rule of evidence in this instance, and made such affidavits not only competent, but sufficient proof of citizenship; for it requires no other. It is insisted, however, that this is admissible only in the land-office for the purpose of entitling the locator to a patent, but does not extend to suits between private parties respecting the right to the claim. But the statute say 'under this chapter,' and the chapter provides for sending the parties to the courts to try their rights when there are conflicting claims; and in my judgment the provisions apply to all the purposes of the act-- to the litigation of all claims arising under the act, whether in the department, or in the ordinary courts of the country. Evidence which is competent and sufficient to establish a right to a patent to a mining claim as against the government-- the actual owner of the land and mine-- ought to be competent and sufficient to maintain the party complying with the statute in his possession and claim against a stranger trespassing upon his...