Sec. 2. No pre-emption, location, or acquisition of any placer mine or claim, or of any interest therein, or possessory or other right thereto, made by any alien or by any one for his use or benefit, either directly or indirectly, and no gift, grant, bargain, sale, conveyance, transfer, assignment, mortgage, or lease of any placer mine or claim, or any interest therein, or possessory or other right thereto, or to the profits or proceeds thereof made to any alien, or to any one for the use or benefit of such alien, either directly or indirectly, and no agreement made with any alien or with any one for his use or benefit, either directly or indirectly, for any pre-emption, location, or acquisition by such alien, or for any gift, grant, bargain, sale, conveyance, transfer, assignment, lease, or mortgage to such alien, or to any one for his use or benefit, or for the possession, use, or enjoyment by such alien, or, any one for his use or benefit, of any placer mine or claim, or any interest therein, or possessory or other right thereto, or to the profits or proceeds thereof, shall vest in such alien or in any one for his use or benefit, any title, interest, or possessory or other right whatsoever, in or to such placer mine or claim, or to the profits or proceeds thereof; but whatever title, right, or interest would have vested in such alien if he had been a citizen and capable of taking the same, shall be forfeited to the territory of Montana, unless before judgment of forfeiture such alien shall comply with the provisions of section twelve of this act.

Sec. 3. Whenever it shall be made to appear to any district attorney, by the affidavit of some competent witness or otherwise, that any alien is in the possession, occupation, use, or enjoyment of any placer mine or claim within the district of such district attorney, or that any alien claims any right, title, or interest in or to any such mine or claim, or that any pre-emption, location, or acquisition of any such mine or claim has been made by any alien, or any gift, grant, bargain, sale, conveyance, transfer, assignment, lease, or mortgage has been made to any alien, or to any one for his use or benefit, either directly or indirectly, or any agreement has been made to or with any alien, or any one for his use or benefit, whereby such alien acquires or is to acquire any interest whatever in or right to any such mine or claim, it shall be, and is hereby made, the special duty of such district attorney forthwith to institute in the district court of the county in which such placer mine or claim is situated, an action in the name of the territory of Montana, against such placer mine, or claim, for the forfeiture thereof to the territory.

Sec. 4. The alien or aliens possessing, occupying, or claiming such placer mine or claim, and all other persons in possession of such mine or claim, or having or claiming any interest therein, may be made defendants in such action. In case the real names of such defendants are not known they may be sued by fictitious

names, and their real names substituted when ascertained. The complaint in such action shall set forth the alienage of the defendant, the possession, occupation, use, or enjoyment by such alien, or by some one for his use and benefit, in violation of the provisions of this act, of the placer mine or claim in question, describing it, or the pre-emption, location, or acquisition by such alien, or some one for his use or benefit, or the gift, grant, bargain, sale, conveyance, transfer, assignment, lease, or mortgage to such alien, or to some one for his use or benefit, of such mine or claim, or some interest or right therein, and the nature or extent of the interest therein sought to be held or claimed by such alien or other person for his use or benefit, as fully as may be practicable, and shall ask judgment of forfeiture of such mine or claim to the territory, and sale thereof as hereinafter provided.

Sec. 5. Service of summons shall be made upon the mine or claim, by posting a copy of the summons in a conspicuous place upon such mine or claim, at least thirty days before the first day of the term of court at which the action is for hearing, and upon the personal defendants in the manner provided by law for service of summons in civil actions. The practice, pleading, procedure, and trial, shall be the same provided for by law in civil actions, except where otherwise prescribed in this act.

Sec. 6. When it shall be made to appear upon the trial that the allegations of the complaint are true, and that the mine or claim in question is occupied, possessed, or claimed by any alien, or that any right or interest therein has been sought to be conveyed to, or vested, or created in such alien, or in any one for his use or benefit, by any pre-emption, location, or acquisition, purchase, gift, grant, bargain, sale, conveyance, transfer, assignment, mortgage, lease, or agreement, the court shall render judgment of forfeiture to the territory of such mine or claim, or of whatever right, title, or interest the alien would have acquired therein, had he been a citizen and capable of taking the same against such mine or claim, or the interest such alien might have acquired therein, and also against such alien and the other defendants in the action, and also judgment against such alien for costs as in other actions.

Sec. 7. Whenever judgment of forfeiture shall have been rendered as above provided, a special execution shall issue thereon to the sheriff of the county, commanding him to sell in the manner and upon the notice provided by law in cases of sales on execution, the mine or claim, or the right, title, and interest attempted to be acquired by the alien therein, so adjudged to be forfeited.

Sec. 8. Upon such sale the sheriff shall forthwith execute and deliver to the purchaser a deed, conveying to him such forfeited mine or claim, or the right, title, or interest therein adjudged to have been forfeited, and such purchaser shall thereupon acquire and have all the right, title, and interest which the alien would

have had in such mine or claim, had he been a citizen and capable of acquiring and holding the same.

Sec. 9. All proceeds of sale of such mine or claim shall be applied first to the payment of all costs and expenses of suit and sale, including twenty-five per cent. of the amount to the district attorney for his fees, and the balance shall be paid by the sheriff to the county treasurer, who shall give his receipt therefor, and at his annual settlement with the territorial auditor and treasurer, the county treasurer shall pay over to the territorial treasurer all moneys which have come into his hands under the provisions of this act, during the previous year, and all such moneys shall belong to, and be for the use of the said territory of Montana.

Sec. 10. Every gift, grant, bargain, sale, conveyance, assignment, transfer, lease, mortgage, or other incumbrance, or lien made by any alien of any placer mine or claim, or any interest or right therein subject to forfeiture under this act, shall be void. Sec. 11. All placer mines and claims shall be held and considered as real estate within the meaning and provisions of this act. Sec. 12. If at any time before judgment of forfeiture of any placer mine or claim under the provisions of this act, the alien holding or claiming such mine or claim, or right or interest therein, shall declare under and in accordance with the naturalization laws of the United States, his intention to become a citizen thereof, all his disabilities under this act shall be thereby removed, and he shall hold and enjoy the same right, title, and interest in or to any placer mine or claim he may previously have possessed or claimed, as if he had been a citizen at the time when he acquired or sought to acquire such right, title, or interest, and if action of forfeiture under this act shall have been commenced, it shall be discontinued upon proof of the declaration of intention of such alien to become a citizen, and upon payment by him of all costs of the action.

Sec. 13. Nothing in this act shall be taken or construed to apply to, or affect or enlarge or impair any rights or interest in or to any placer mines or claims which may have been acquired by any alien prior to the passage of this act.

Sec. 14. This act to take effect and be in force from and after its passage.

Approved January 12, 1872.

CHAPTER LXXXIII.

DEVELOPMENT OF MINES-RIGHTS OF WAY.

(See ante chapter 45.)

AN ACT concerning rights of way, easements, and other necessary means for the development of mines.

WHEREAS, The congress of the United States by an act approved July 26, 1866, and an act amendatory thereto, approved July 9, 1870, has provided that the local legislatures of the several states and territories may provide rules for working mines, involving easements, drainage, and other necessary means to complete development of mines upon which patents shall be granted by the United States, in the absence of necessary legislation by congress. And, whereas, there has been no legislation by congress upon this subject, therefore:

Be it enacted by the legislative assembly of the territory of Montana :

Section 1. The proprietor, owner, or owners of mining claims, whether patented under the laws of the United States or held under the local laws and customs of this territory, shall have a right of way for ingress and egress, for the necessary purposes, over and across the lands or mining claims (patented or otherwise) of others as hereinafter prescribed.

Sec. 2. Whenever any such mine or mining claim shall be so situated that it cannot be conveniently worked without a road thereto, or a ditch to convey the water thereto, or a ditch or a cut to convey the water therefrom, or without a flume to carry water and tailings therefrom, or without a shaft or a tunnel thereto, which road, ditch, cut, flume, shaft, or tunnel shall necessarily pass over, under, through, or across any lands or mining claim owned or occupied by others, either under a patent from the United States or otherwise, then shall such first mentioned owner or owners be entitled to a right of way for such road, ditch, cut, flume, shaft, or tunnel over, under, through, and across such other lands or mining claims, upon compliance with the provisions of this act.

Sec. 3. Whenever the owner or owners of any mine or mining claim shall desire to work the same, and it is necessary to enable him or them to do so successfully and conveniently, that he or they should have a right of way for any of the purposes mentioned in the foregoing sections; and, if such right of way shall not have been acquired by agreement between him or them, and the claimants or owners of the lands or claims, over, under, across, and upon which he or they seek to establish such right of way, it shall

be lawful for him or them to present to the judge of the district court of the territory of Montana, within and for the county in which such right of way, or some part thereof, sought to be enforced is situated, or to which such county is attached for judicial purposes, a petition, praying that such right of way be awarded to him or them. Such petition shall be verified and contain a particular description of the character and extent of the right sought, a description of the mine or claim of the petitioner, and the claim or claims and the lands to be affected by such right or privilege, with the names of the occupants or owners thereof. It may, also, set forth any tender or offer hereinafter mentioned, and shall demand the relief sought.

Sec. 4. Upon the receipt of such petition, and filing thereof with the clerk of such court, the judge shall direct a citation to issue under the seal of such court, to the owners named in the petition of mining claims and lands to be affected by the proceedings, requiring them, and each of them, to appear before the judge on a day therein named, which shall not be less than ten days from the service thereof, and show cause why such right of way should not be allowed as prayed for; such citation shall be served on each of the parties in the manner prescribed by law for serving summons in ordinary proceedings at law.

Sec. 5. Upon the return day of the citation, or upon any day to which the hearing shall be adjourned, the judge shall proceed to hear the allegations and proofs of the respective parties, and, if upon such hearing he is satisfied that the claims of the petitioner can only be conveniently worked by means of the privilege prayed for, he shall make an order, adjudging and awarding to the petitioner such right of way, and shall appoint three commissioners, who shall be disinterested parties and residents of the county, to assess the damages resulting to the lands or claims. affected by such order.

Sec. 6. The commissioners, so appointed, shall be sworn or affirmed to faithfully and impartially discharge their duties, and shall proceed, without unreasonable delay, to examine the premises, and shall assess the damages resulting from such right or privi lege prayed for, and report the amount of the same to the judge appointing them, and, if such right of way shall affect the property of more than one person or company, such report shall contain an assessment of damages to each company or person.

Sec. 7. For good cause shown the judge may set aside the report of such commissioners, and appoint three other commissioners, whose duties shall be the same as above mentioned.

Sec. 8. Upon the payment of the sum assessed as damages, as aforesaid, to the persons to whom it shall be awarded, or a tender thereof to them, then the person or persons petitioning, as aforesaid, shall be entitled to the right of way as prayed for in their