(after stating the facts.) Appellant urges for reversal, that it was not shown that each of the locators under whom appellee claims was a citizen of' the United States when the location was made. Mr. Lindley, in his work on Mines, after a review of cases, says: “The following conclusions are clearly deducible from the current of judicial authority:
“1. An alien may locate or purchase a mining claim, and until ‘inquest of office’ may hold and dispose of same in like manner as a citizen.
“2. Proceedings to obtain patents are in the nature of ‘inquest of office,’ and in such proceedings citizenship is a necessary and material fact to be alleged and proved.” Lindley on Mines, p. 407, § 234. He also states at p. 402, § 233, that “the following principles have been established by the weight of authority: 1. That a location made by an alien, if otherwise valid, creates in him an estate which can be divested only at the instigation of the Government in a proceeding to which it is either directly or indirectly a party,” etc.
In a late case in the United States Supreme Court it is held that grantees of public land take by purchase, and that a location by an alien is voidable only, not void, and free from attack by any one except the Government. McKinley Creek Mining Co. v. Alaska United Mining Co., 183 U. S. 563. But, inasmuch as the proceeding in the case at bar was based upon the adverse claim of appellee to the application by appellant for a patent (under section 2326, Rev. Stat. U. S.), the objection that the locators through whom appellee claims were aliens was properly made, for this was in right and on behalf of the Government. Manuel v. Wulff, 152 U. S. 505; Barringer & Adams, Laws of Mines, etc., 205. The objection, however, cannot avail appellants, for the reason that the court below found “that each of said locators was a citizen of the United States,” and the decree recites “that the depositions in the cause were those of Luke Mat-lock, J. F. Dudley, Henry Shepherd, and Z. Shepherd,” but the transcript which appellant has caused to be filed in this court fails to set forth the depositions of the witnesses Henry Shepherd and Z. Shepherd. This being true, every question of fact that was essential, under the pleadings, to sustain the decree, we must assume, was established by the absent evidence. Simpson v. Talbot, 72 Ark. 185; Hershy v. Baer, 45 Ark. 240.
2. This court held in Worthen v. Sidway, 72 Ark. 215, that under the Revised Statutes of the United States, § 2331, the location of a mining claim “must be distinctly marked on the ground so that its boundaries can be readily traced.” Appellant contends that appellee has failed to comply with the requirements of the law in this respect, but the chancellor found that the location “was in manner and form required by law,” and we must assume, for the reason heretofore stated, that there was evidence to support his finding as to the manner of the location.
3. Likewise, as to the contention that appellee and his grantors had not done the assessment work which the law requires, in order to give him the possessory right to the land in controversy, all the foregoing are questions of fact which the missing depositions we must assume established.
4. On the question of the statute of limitations, which appellant urges here, it is sufficient to say that no such issue was raised in the court below, and it cannot be raised here for the first time. O’Reilly v. Campbell, 116 U. S. 418. Indeed, the only question presented by the pleadings and proof, so far as this record discloses, was the validity and priority of the alleged locations. The question of whether the necessary assessment work had been done, or possession held so as to give title by limitations did not arise and could not arise until it was first determined thaft some one was in possession under a valid location. And the court only passed upon the question of whether or not the location under which appellee claims was valid, and prior in time to that under which appellant claimed.
Finding no error, the decree is affirmed.