judges, instead of making them court orders, and of permitting them to continue to exercise such powers. One important one may have been that a judge is frequently called upon to issue an injuuction order, order of arrest, etc., to preserve the rights of parties, in the hurry of court business, when he has not the time to give the matter proper consideration. By making the order a judge's order, he reserves the right to review it on motion to vacate, dissolve, or modify it, when he can examine the facts and the law more at his leisure. It would be manifestly unjust to the circuit judge to permit an appeal from such an order without giving him an opportunity of reviewing it. While there might be less reason for such a review in cases where the order is made upon motion, and a full hearing had, yet, the legislature having imposed no limitation upon the power of the judges to make such orders, this court cannot impose any.

We have discussed the question thus far upon the theory that the constitution of the state was silent upon this subject, but there are two provisions of the constitution bearing directly upon this question. The latter clause of Section 14. Art. 5, of the constitution, provides that "they [circuit courts] and the judges thereof shall also have jurisdiction and power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same;" and Section 18 of the same article provides that "writs of error and appeals may be allowed from the decision of the circuit courts to the supreme court under such regulations as may be prescribed by law." It will thus be seen that the legislature could not take from the circuit judges the power to issue injunctions as judges had it attempted to do so. That power, being conferred upon them by the constitution, cannot be taken away by any legislative action; and, as Section 18 provides only for appeals from decisions of the circuit court, it may be a question whether it is competent for the legislature to provide for appeals from the order of a judge, if it desired to do so. When, then, the state constitution and the statute have specifically conferred upon the

court or judge the power to make an order, and the judge deems it proper to exercise the power vested in him by making the order a chambers order, and not a court order, such an exercise of his discretion cannot be controlled by this court.

* *

*

In this case the judge was specifically clothed with the power to grant the injunction order appealed from as a judge's order, both by the constitution and law of the state, as the section, as we have seen provides: "The order may be made by the court or a judge thereof." That the order in controversy is the order of the judge, and not a court order, is clearly apparent from the record. The order to show cause, on which the order appealed from was made, was made returnable before the judge,-the order being, "let the defendant show cause before me at Custer City," etc,-and was declared to be done at chambers at Custer City," and the order now being considered recites "that the judge of said court, having considered the return," etc., and concludes with the words, "done at chambers at Custer City," etc. The court cannot presume that the learned judge of the seventh circuit did not understand the full import and force of these terms, as making the order the order of the judge and not of the court; and we must therefore hold that the judge intended to make this order a judge's or chambers order, and not a court order.

66

Our attention has been called to the cases of Insurance Co. v. Weber, 50 N. W. Rep. 703, and Same v. Mayer, Id. 706, recently decided by the supreme court of the state of North Dakota, in which that learned court seems to have taken a different view as to the effect of the act of 1887 upon orders made by a judge since the passage of that act. Whether or not that court intended to hold that the act repealed the provisions of the former statutes conferring upon judges specifically the power to make judges' orders is not clear from the opinion. But this court in Bank v. Smith, 44 N. W. Rep. 1024, and Holden v. Haserodt, 49 N. W. Rep. 97, (now before us on rehearing, 51 N. W. Rep. 340,) has followed the rule laid down by the late supreme court of the territory in Bostwick v. Knight, 40 N. W. Rep. 344, and the decisions of the supreme court of Wis

consin, from which state our statute relating to appeals from orders was taken. While that part of the opinion of the learned court in Bostwick v. Knight, holding that an order of the judge could not be reviewed without first moving the court to vacate or set it aside, was not, perhaps, necessary to the decision of that case, yet it nevertheless expresses the views of that court upon that question. We deem it our duty to adhere to the rule laid down in these cases. The judge, therefore, being authorized to make the order in this case as a judge, and having so made the order, no appeal from it lies, under Section 5236, Comp. Laws, which provides only for appeals from court or ders. That section not only confers upon this court its power to review orders, but limits its jurisdiction to review to court orders only, and this legislation is in accord with the state constitution. It is a well settled doctrine that there is no common law right of appeal, and that appellate courts have only such jurisdiction over appeals as may be specially conferred by law. constitutional or statutory. Constitution v. Woodworth, 1 Ill. 511; Edwards v. Vandemack, 13 Ill. 633; Street v. Francis. 3 Ohio, 277; Hayne, New Trials, § 181. As neither the constitution of the state nor the statute has conferred jurisdiction upon this court to hear and determine appeals from judges' orders, and as the constitution and the statute have expressly limited the jurisdiction of this court to appeals from judgments and court orders, we are without jurisdiction to hear this appeal, and must therefore dismiss the same. Bostwick v. Knight, 40 N. W. 344, 5 Dak. 305; Bank v. Smith, (S. D.) 44 N. W. Rep. 1024; Holden v. Haserodt, (S. D.) 49 N. W. Rep. 97; Whereatt v. Ellis, 30 N. W. Rep. 520, 31 N. W. Rep. 762, and 68 Wis. 70; State v. Brownell, (Wis.) 50 N. W. Rep. 413.

We deem it proper to take this occasion to say that we think it is the duty of the circuit judge, when making an order in his own circuit, after a full hearing, that can be made by him. as a court or judge, and especially such which, if made by the court, would be appealable, to make the same a court order, and not a judge's order. This, we think, will carry out the spirit and intent of the legislature in the adoption of Section

4828. To make an order, that can be made a court order, a judge's order, in the absence of some controling reason therefor, imposes unnecessary labor and expense upon attorneys and litigants. The case at bar fully illustrates the hardship. It appears a full hearing was had upon the order to show cause within the judges own circuit. What necessity was there, then, for making a judge's order, which, before an appeal could be taken, must be again heard by the court? We are unable to discover any, and we think it was clearly the duty of the judge to have heard and decided the order to show cause as a court, and to have made the order a court order. The appeal is dismissed, without prejudice. All the judges concurring.

GORMAN MINING COMPANY V. ALEXANDER et al.

One of the locators of an unpatented mining claim duly and legally located by citizens of the United States in 1887 conveyed his interest in said claim, in 1883, to an alien, who in 1887-prior to the relocation of such claim by the defendants-conveyed the same to the plaintiff, a corporation qualified to locate, hold, and purchase the mineral lands of the United States. Held, that such alien, under the laws of Dakota Territory, then in force, which provided that "any person, whether citizen or alien, may take, hold, and dispose of property; real or personal," within said territory, could and did, as against everybody but the holder of the paramount title, by such conveyance acquire and hold the title of such locator, acquired by him by such location, under the laws of the United States, and had the right to convey the same, as against all persons except the holder of the paramount title. Held, further, that a conclusion of law by the trial court that such conveyence from said locator to such alien was in effect an abandonment of the claim, and that claim therefore became a part of the public domain of the United States, and was subject to relocation by any qualified person, was erroneous.

(Syllabus by the Court. Opinion filed March 2, 1892.)

Appeal from circuit court, Pennington county. HON. JOHN W. NOWLIN, Judge.

Action to quiet title. Judgment for defendants. Plaintiff appeals. Reversed.

The facts are fully stated in the opinion.

Day, Bangs & Haynie, and Clarke & Boyd, for appellant.

A title to mineral land, duly diverted from the United States government, becomes property in the fullest sense of the word. Forbes v. Gracey, 94 U. S. 762; Belk v. Meagher, 104 U. S. 279; Gwillen v. Donellan, 115 U. S. 45; Noyes v. Mantle, 127 U. S. 348; Mercer v. Fremont, 7 Cal. 317; Crandall v. Woods. 8 Cal. 143; Bird v. Lisboes, 9 Cal. 1; Mc Keon v. Bisbee, 9 Cal. 137; State v. Moore, 12 Cal. 56; Watts v. White, 13 Cal. 321; Merritt v. Judd, 14 Cal. 59; Hughes v. Devlin, 23 Cal. 501; Spencer v. Winselman, 42 Cal. 479. It becomes subject to the laws of the state where situated. The mayor v. Geo. Miln, 11 Peters, 102.

In 1883, an alien could take, hold and dispose of real or personal property. § 2686, Comp. Laws. § 870 Rev. Code 1877; Ferguson v. Neville, 61 Cal. 356; Le Doon v. Tesh, 63 Cal. 50; In re Ole O. Krogstadt, 4 Dec. Int. Dept. 564; Jackson v. Beach, 1 Johnson's Cases, 399; Governeur's Heirs v. Robertson, 11 Wheaton, 332; Osterman v. Baldwin, 6 Wallace, 116; Croesus v. Colorado, 19 Fed. 78; State v. Smith, 12 Pac. 121; Sec 1, Act of Cong. Mch. 3d, 1887; § 97, Organic Law, Comp. Laws.

The title acquired by an alien by purchase is not divested until office-found. Fairfax v. Hunter, 7 Cranch, 603; Orr v. Hodgson, 4 Wheat. 453; White v. Bumley, 20 Howard, 235; Cross v. Del Valle, 1 Wallace, 5; Rust v. Rock Island, 97 U. S. 69; Diablo v. Allison, 11 Mining, 633; Craig v. Redford, 3 Wheat. 594; Van Wyck v. Knevals, 106 U. S. 693; Hammekin v. Clayton, 2 Cent. L. J. 188; Hepburn v. Dunlap, 1 Wheat. 179; Ramires v. Kent, 2 Cal. 558; People v. Folsom, 5 Cal. 373; Mitchell v. Hagood, 6 Cal. 148; Norris v. Hoyt, 18 Cal, 217; Merle v. Matthews, 26 Cal. 148; Racouillat v. Sansevain, 32 Cal. 376; Haurick v. Patrick, 119 U. S. 169; Phillips v. Moore, 100 U. S. 208; Settegast v. Schrimpf, 33 Tex. 341; Barrett v. Kelly, 31 Tex. 476.

A sale of a mining claim to an alien is not an abandonment or forfeiture. North v. Orient, 9 Mining, R. 526; 1 Fed. 522. Until abandoned or forfeited no adverse entry could be made on the premises. Belk v. Meagher, 104 U. S. 279.