[561]

the question of whether he was a freeholder
within the meaning of the statute of Kansas on
that subject was ruled out entirely by the ex-
clusion of all his testimony on the trial; and this
constitutes the principal assignment of error in
the case.

Article 9 of chapter 23 of the Compiled Laws
of Kansas, page 224, entitled "Appropriation of
Lands for the Use of Railway and Other Cor-
porations," provides two modes of doing this.
The first of these modes is by an application
to the board of county commissioners, which is
the governing body of the county, to lay off
along the line of the proposed road as located
by the company a route for such railroad. Up-
on this application being made in writing, the
board of county commissioners shall forthwith
proceed to lay off such route, and have the same
carefully surveyed, and appraise the value and
assess the damages to the interest of each of the
of the owners of the land so taken; all of which
they shall embody in a written report and file it
in the office of the county clerk in such county.
The county clerk shall immediately file a copy
of this report in the office of the treasurer of
the county; and, if the company shall pay the
amount of this appraisement into the treasurer's
office, this shall be certified upon the copy of
the report under his hand and seal of office,
and he shall pay over the amounts to the per-
sons, respectively, entitled to them. Upon the
filing of a copy of this report, and a certificate
of the payment of the money, in the office of
the register of deeds for the proper county, the
company shall have the right to occupy the
lands so embraced within such route for the pur-
poses necessary for the construction and use of
its road. These proceedings, it is declared, shall
vest in the company, its successors and assigns,
the perpetual use of the lands as soon as the
railroad has been constructed.

persons, and the application for and certificate
of appointment shall be recorded in the office
of the register of deeds of the proper county.
Such commissioners, being duly sworn, shall
perform all their duties in the manner and un.
der the same regulations and restrictions as are
provided in the case where they are performed
by the county commissioners, and the subse-
quent proceedings, including the right of ap-
peal, shall be the same.

In the case now before us the proceeding
was had under the latter provision of the stat-
ute. The transcript on its face seems to be
regular in every particular, showing a full com-
pliance with all the requirements of the statute
on the subject. There was the proper publica-
tion made in the newspaper; and, indeed, so
far as the face of the record is concerned, no
objection seems to be made to it, except that it
is very urgently argued that the notice pub-
lished was not sufficient because it did not ap-
prise the party of what land was to be taken;
and, if in that respect it was a sufficient com-
pliance with the statute, it is then insisted that
the statute itself was void as authorizing the
taking of private property without due process
of law.

In regard to this objection, we do not see
how the notice is deficient, if any notice short
of one actually served upon the party can be
sufficient. With regard to the description of
the property, the notice gives all that could be
known at the time it was published. As the
commissioners had the power to determine the
precise location of the road, that location
could not be described with more precision than
it is in the newspaper publication set out in
the proceedings. It is directed to all persons
owning lands on the line of the railroad as
the same is now or may be located through
section 23, township 11, range 25, in the Coun-
Section 86 of this article provides that before ty of Wyandotte and State of Kansas; and it
the county commissioners shall proceed to lay notified persons owning land in that section
off any railroad route, notice of the time when that the commissioners duly appointed would
the same shall be commenced shall be given by on Monday, the 22d of May, 1882, proceed to
publication, thirty days before the time fixed, lay off the route for said road through said sec-
in some newspaper published in the county. tion and appraise the value and assess the dam-
It also provides that an appeal may be had ages to each quarter section through and over
from the determination of the board of county which the railroad might be located. To the
commissioners as to the value of the lands, and plaintiffs in this case, who are the owners of a
other damages to the district court of the coun-quarter section of land in section 23 of that
ty, which appeal shall only affect the amount
of compensation to be allowed, but shall not
delay the prosecution of the work, if the com-
pany shall pay the amount as aforesaid and ex-
ecute a bond with sufficient security to pay all
damages which may be adjudged to be paid by
the said court.

Another mode of appropriating this land, by the exercise of the right of eminent domain, for the use of railroads, is provided by section 87 of the same article. In this case, the railroad company, instead of applying to the board of county commissioners, may apply to the [562] judge of the district court of the county through which the railroad is to be built, who shall appoint three commissioners, who shall be freeholders and residents of the county, to make the location, appraisement and assessment of damages, instead of the county commissioners. This appointment shall be made in writing under the hand of the district judge, upon the written application of the corporation or other

township, this was a sufficient warning that the
road might run through their land at that point,
and suflicient notice of the time and place where
this matter would be determined, as also the
amount to which they would be entitled for
the appropriation of their land. If this notice
had been read by the plaintiffs, it was a clear
and distinct notification to them that it would be
determined at that time whether any, and how
much, of their land in section 23 would be
taken for the railroad, and the value to be set
upon it by the commissioners; and we think
that this was all the notice they had a right to
require. Of course, the statute goes upon the
presumption that, since all the parties cannot
be served personally with such notice, the pub-
lication which is designed to meet the eyes of
everybody, is to stand for such notice. The
publication itself is sufficient if it had been in
the form of a personal service upon the party
himself within the county. Nor have we any
doubt that this form of warning owners of prop-

[563]

erty to appear and defend their interest, where | have been sustained, or it could have been taken it is subject to demands for public use when au- by way of appeal from the proceedings of the thorized by statute, is sufficient to subject the commissioners; but to permit such an objection property to the action of the tribunals appointed as this to prevail at this time, and thus defeat by proper authority to determine those matters. the whole of the proceedings upon this narrow The owner of real estate who is a nonresi- ground, is a proposition unsupported by sound dent of the State within which the property lies, principle or by authority. It is a collateral atcannot evade the duties and obligations which tack upon a proceeding which has been comthe law imposes upon him in regard to such pleted according to the forms of law. There property, by his absence from the State. Be- is no more reason why this want of qualificacause he cannot be reached by some process of tion should, when shown at this stage of the the courts of the State, which, of course, have proceeding, invalidate it all, than there is why no efficacy beyond their own borders, he can- the discovery, after a judgment and after that not therefore hold his property exempt from the judgment has passed beyond the control of the liabilities, duties, and obligations which the court, that one of the jurors was disqualified, State has a right to impose upon such property; should make absolutely void the verdict and and in such cases some substituted form of no- judgment. It is only one of those cases fretice has always been held to be a sufficient warn- quently occurring in the administration of the [564] ing to the owner, of the proceedings which are law, in which it is better that errors not pointed being taken under the authority of the State to out at the proper time should be disregarded, subject his property to those demands and than that, by attempts to correct them, evils obligations. Otherwise the burdens of taxa- much worse should follow than those incident tion, and the liability of such property to be to the error. Comrs. of Leavenworth Co. taken under the power of eminent domain, v. Espen, 12 Kan. 531; Venard v. Cross, 8 Kan. would be useless in regard to a very large amount 248; Cooper v. Reynolds, 77 U. S. 10 Wall. 308 of property in every State of the Union. [19:931]; Voorhees v. Bank of U. S. 35 U. S. 10 Pet. 449 [9:490].

[565]

It is, therefore, the duty of the owner of real estate who is a nonresident, to take measures that in some way he shall be represented when his property is called into requisition; and if he fails to do this, and fails to get notice by the

The judgment of the Circuit Court is affirmed.

JEROME B. WHEELER ET AL.

(See 8. C. Reporter's ed. 630-637.) Corporation may locate mining claim.

ordinary publications which have usually been ALEXANDER B. MCKINLEY, Plff. in Err., [630]
required in such cases, it is his misfortune, and
he must abide the consequences. Such pub-
lication is "due process of law" as applied to
this class of cases. Harvey v. Tyler, 69 U. S.
2 Wall. 328 [17:871]; Secombe v. Milwaukee &
St. P. R. Co. 90 U. S. 23 Wall. 108 [23:67];
Pennoyer v. Neff, 95 U. S. 722, 743, 744 [24:568,
576]; Hagar v. Reclamation District, 111 U. S.
701 [28:569]; McMillen v. Anderson, 95 U. S. 37
[24:335]; Davidson v. New Orleans, 96 U. S.
105 [24:620]; Boom Co. v. Patterson, 98 U. S.
403, 406 [25:206, 207].

Conceding that these proceedings subjected the land in controversy to the jurisdiction of the commissioners appointed by the District Judge of Wyandotte County, the question as to whether one of those commissioners was a free holder or not is not open to consideration in this suit. The commissioners were regularly appointed by the proper officer, and took the proper oath, and have discharged their duties in the manner required by law. The railroad company has paid the money and taken possession of the land which was condemned by those commissioners. The plaintiffs cannot recover in the present action without a holding in this collateral proceeding that all that was done by those commissioners is void by reason of this want of qualification in one of their number. The proper time for these plaintiffs to have taken this objection to Mr. Wood as a commissioner was either at the time of his appointment, or at the time he proceeded to act as commissioner. If it be objected that they could not be supposed to have any notice of the application for the appointment of these commissioners, and of the time and place when the judge would act on that application, the law presumes that they had notice, and might have attended at the time the commissioners entered upon their duties. If this objection had been then taken, it might

A corporation created under the laws of one of the States of the Union, all of whose members are citizens of the United States, is competent to locate public lands of the United States, in like manner or join in the location of a mining claim upon the as individual citizens.

[No. 233.]

Argued April 2, 1889. Decided May 13, 1889.

IN ERROR to the Circuit Court of the United
States for the District of Colorado, to review
a judgment sustaining a demurrer to the com-
plaint in an action for the possession of an un-
divided half interest in a mining claim. Re-
versed.

The facts are stated in the opinion.

Messrs. Hugh Butler and Wm. A. Maury for plaintiff in error.

Messrs. C. S. Thomas and T. M. Patterson for defendants in error.

Mr. Justice Field delivered the opinion of the court:

This is an action for the possession of an undivided half interest in a mining claim known as the Vallejo lode, in the mining district of Roaring Forks, in the County of Pitkin, Colorado.

The plaintiff derives whatever interest he possesses by purchase and conveyance from the Josephine Mining and Prospecting Company, a corporation organized and existing under the laws of Colorado, for the purpose of pros pecting for valuable mineral deposits in the public domain of the United States in that State.

The Vallejo lode was discovered and located ing together for the occupation and purchase [631] by that company and two persons named of public lands containing "valuable mineral Charles Miller and James W. McGee, the loca- deposits." Nothing is said of partnerships or tion being in their joint name, one half interest associations or corporations; it is to citizens for the benefit of Miller and McGee and the other that the privilege is granted, and that they may half for the benefit of the members of the corpo- unite themselves in such modes in all other ration. At the time of the discovery and loca- pursuits was, as a matter of course, well known tion all the members of the corporation were to those who framed as well as to those who citizens of the United States, and were sever- passed the statute. There was no occasion for ally and individually qualified and competent special reference to the subject to give sanction to enter upon the public domain and acquire to these modes of uniting means to explore for title to mineral lands upon it by discovery and mineral deposits and to develop them when dislocation. covered. Many branches of mining, and those The complaint, in addition to these facts, which yield the largest returns, can be carried alleges that on the 11th of March, 1884, the on only by deep excavations in the earth and plaintiff was and has since been the owner of the use of powerful machinery, requiring exan undivided half interest in the mining claim penditures generally far beyond the means of mentioned, which is described by metes and single individuals. In lode mining especially bounds as set forth in the original location cer- such excavations extend in most cases buntificate, and was then and has ever since been dreds of feet, in many cases thousands of feet, entitled to its possession; that on the 20th of into the earth, where, for successful working, October, 1884, the defendants entered upon the steam engine of great power is as essential the premises and wrongfully and unlawfully an instrument as the pick and the shovel. It excluded the plaintiff therefrom, and have ever was expected, of course, that mining would consince thus excluded him, to his damage of one tinue after the passage of the Act as before. No thousand dollars. He therefore prays judg-change in that respect is needed or asked for. ment for the possession of an undivided half The object of the Act of May 10, 1872, from interest in the mining claim and for the dam- which the provisions of section 2319 were carried age alleged. into the Revised Statutes, was "to promote the [633] development of the mining resources of the United States." It is so expressed in its title, and such development is sought to be promoted by indicating the manner in which claims to mines can be established, and their extent, and by offering a title to the original discoverer or locator who should develop the mine discovered and located, or to his assigns.

To this complaint, the material facts of which are set forth in two counts, the defendants demurred on several grounds, some of which are mere formal objections, but one of which is as follows: "Because the plaintiff bases his title or claim of ownership to an undivided one half of the said Vallejo lode mining claim upon a purchase and conveyance from the Josephine Mining Company, a locator of said claim; and that said company, whether a corporation or partnership, was and is incapable of originally locating a mining claim, in whole or in part, under the statutes of the United States or of the State of Colorado."

At the present day, nearly all enterprises for the prosecution of which large expenditures are required, are conducted by corporations. They occupy in such cases almost all branches of industry, and prosecute them by means of the united capital of their members with increased success. In many States they are formed under general laws, by a very simple proceeding;-by an instrument signed by the proposed members agreeing to thus unite themselves, stating their number, the object of their incorporation, the proposed capital, the number of shares, the period of duration, and the officers under whose direction their business is to be conducted. Such a document being acknowledged by the parties and filed in certain designated offices, a corporation is created. The facility with which they may be thus formed, and the convenience of thus associating a number of persons for business, have led to an encrmous increase of their number. They are little more than aggregations of individuals united for some legitimate business, acting as a single body, with the power of succession in its members without dissolution. We think, therefore, that it would be a forced construction of the language of the section in question, if, because no special reference is made to corporations, a resort to that mode of uniting interests by different citizens was to be deemed prohibited. There is nothing in the nature of the grant or privilege conferred which would impose such à limitation. It is in that respect unlike grants of land for homesteads and settlement, indiIt will be observed that no probibition is here cating in such cases that the grant is intended made against citizens of the United States unit-only for individual citizens.

After argument the court sustained the demurrer, and entered judgment dismissing the action, with costs against the plaintiff, who has brought the case here on a writ of error.

As thus appears, the sole question presented for our determination is whether a corporation created under the laws of one of the States of the Union, all of whose members are citizens [632] of the United States, is competent to locate or join in the location of a mining claim upon the public lands of the United States, in like manner as individual citizens. The question must, of course, find its solution in the enactments of Congress.

Section 2319 of the Revised Statutes provides as follows:

"All valuable 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."