Page:Federal Reporter, 1st Series, Volume 1.djvu/545

 NOKTH NOONDAT MINING 00. V. OBIBNT MINING 00. 637 �«r to relocate a claim, before properly located by another, however derelict in performing the required work the first loeator may have been, provided he bas returned and resumed ■work, and is actually engaged in developing bis claim at the time the sec.ond loeator enters and attempts to secure the claim. �It is urged by defendant that Smith was not a citizen, and, therefore, that he could acquire no right by location. In view of this claim, and in case you find from the evidence this to be the fact, I give you this ftirther instruction : �The testimony shows that Smith, at various tiinea, before defendant acquired any interest, conveyed portions of what- ever right he had to other parties next hereinafter named, and fmally, on September 28, 1878, conveyed ail bis remaining interest in ail of the claims, by specifie description, to said parties, Irwin, John and James Welch and Patrick Clancy, in whom, whatever interest had before been acquired by virtue of said several locations, at this time had become vested. �If Smith, even though not a citizen, performed ail the acts necessary to make a valid location, and did the work neces- sary to keep his claim good, had he been a citizen, until he conveyed to Irwin and others, and if Irwin and his co-grantees were citizens, and af ter the conveyanee to them took possession and control, and kept up the monuments and markings, and performed the necessary conditions to keep the claims good, then they acquired a good and valid àght to the claim, as against defendant, from the date of the conveyanee to them, provided that no other rights had attached in defend- ant's favor prior to such conveyanee to them, and auch subse- quent performance of said required conditions by them. �The East Noonday North claim was located by Welch, Smith and Irwin November 27, 1877, before any rights had been acquired by the Orient Company, defendant. The claim con- tains no more than one man was authorized to locate. So that, if one or moreof the locators were citizens, in that pardcular the location of the claim was good as to such citizen or citizens, even though one or more of the others were aliens and not entitled to locate. If, therefore, one or more of these loea- ��� �