3. RELIEF AGAINST PATENT-DETERMINATION. A person can only have relief against a patent issued by the Government by showing a better right to the land than the patentee, and such as in law should have been respected by the officers of the Land Department, and would have given him the patent; and this rule applies to mining claims. Sparks v. Pierce, 115 U. S. 408, p. 412. Where a patent is issued upon application, any question subsequently arising as to the right of the patentee to follow the vein or lode, as given by this section, would be a matter for the courts to settle and can not be determined by the Land Department upon an adverse claim where there is no surface conflict alleged. New York Hill Co. v. Rocky Bar Co., 6 L. D. 318, p. 320. See United States Min. Co. v. Lawson, 134 Fed. 769, p. 776. Chollar, Potosi, etc., Co. v. Julia, etc., Co. The rights of a patentee to a mining claim can not be injuriously affected by an application based upon an old location, as the applicant has the exclusive right of possession of all veins and ledges throughout their entire depth, the top or apex of which lies inside of the surface lines of his claim extended downward vertically. New York Hill Co. v. Rocky Bar Co., 6 L. D. 318. Mere occupants of the public lands without title, and without any attempt having been made by them to secure the title, can not resist the enforcement of a patent issued by the United States on the ground of such occupation. Sparks v. Pierce, 115 U. S. 408, p. 412. Liens which have attached to a prior claim before patent are not impaired by the issue of the patent. Forbes v. Gracey, 9 Fed. Cas. 401, p. 404. Failure to comply with local mining regulations may be shown by protest or adverse claim, but affords no ground for proceeding against a patentee. Hawke, In re, 5 L. D. 131. K. RULES AND REGULATIONS OF MINERS. The first enactment by Congress simply recognized the obligatory force of local rules and regulations in each mining locality as to obtaining, transferring, and identifying the possession of the various locators. Chambers v. Harrington, 111 U. S. 350, p. 352. The local rules and regulations of the miners require every person who asserts an exclusive right of possession to his claim to expend something of labor or of value thereon as evidence of his good faith. Chambers v. Harrington, 111 U. S. 350, p. 353. L. STATE REGULATIONS EXTENT AND VALIDITY. The laws of a State constitute a part of the laws by which a mining right is determined. Four Hundred Twenty Min. Co. v. Bullion Min. Co., 3 Sawy. 634; 9 Fed. Cas. 592. p. 105. A State has authority to add to the general location requirements of this section, as well as of section 2324 R. S., where such provisions do not conflict with these sections. Saxton v. Perry, 47 Colo. 263, p. 267. See Belk v. Meagher, 104 U. S. 279. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., 171 U. S. 55, p. 67. This section expressly recognizes the validity of territorial laws and makes the enjoyment of the right by a locator to the exclusive possession of his claim depend on his compliance with such laws, if not in conflict with the United States statutes. O'Donnell v. Glenn, 8 Mont. 248, p. 258. The title held by the Government to real estate upon which a mining claim has been located can not be affected or incumbered in any way by State legislation. Black v. Elkhorn Min. Co., 52 Fed. 859, p. 861. The right of an alien to inherit a mining claim located upon Government land is as against all persons except the United States determined by the laws of the State in which the mining property is located. Lohman v. Helmer, 104 Fed. 178, p. 182. M. JURISDICTION OF COURTS-FEDERAL QUESTIONS. See sec. 2326, p. 453. The right of a person attempting to enter beneath the surface of the mining claim of another, and mine or take the ore, involves the question as to whether there is a vein or lode having its top or apex within the surface lines of his own location, and the question as to the right of entrance as affected by priority of location and the dip of the vein, and when these questions arise the case is within the jurisdiction of the United States court. Cheesman v. Shreeve, 37 Fed. 36, p. 37. See Frank Gold, etc., Min. Co. v. Larimer Min., etc., Co., 8 Fed. 724. A controversy as to the title to minerals, depending upon whether the mine was patented under the act of 1866 or under the act of 1872, depending also upon the parallelism or want of parallelism of the end lines of the location, presents a Federal question, and confers jurisdiction on the Federal courts. Kennedy Min., etc., Co. v. Argonaut Min. Co., 189 U. S. 1, p. 5. The rights of the parties where one mining claim is located within the limits of another valid mining claim involves the construction of the United States mining laws and gives jurisdiction to a Federal court where the identical question has not been proviously determined. Inez. Min. Co. v. Kinney, 39 Fed. 832, p. 834. As to whether a Federal question is presented when the right arises of the holder of a lode claim to follow a vein or lode whose apex lies within the boundaries of his claim into an adjoining claim held by another and under the surface of the same. Murray v. Mining Co., 45 Fed. 385. Bluebird Mining Co. v. Largey, 49 Fed. 289, p. 291. The question of the ownership or title to mineral at the point of intersection of two veins does not present a Federal question. Gillis v. Stinchfield, 159 U. S. 658. A controversy between different claimants concerning the dip and apex of lodes or veins does not necessarily confer jurisdiction on a Federal court, because it may involve a construction of this section of the statute. Blackburn v. Portland Gold Min. Co., 175 U. S. 571, p. 585. NOTE. The earlier cases on the question of Federal jurisdiction have been overruled either expressly or by implication, and the rule established to the effect that the questions of amount in controversy and adverse citizenship determine the jurisdiction of Federal courts. See Blackburn v. Portland Gold Min. Co., 175 U. S. 751. Shoshone Min. Co. v. Rutter, 177 U. S. 505. SECTION 2323, REVISED STATUTES. Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within 3,000 feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line of such tunnel of veins or lodes not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid, but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel. This section is the same as section 4, act of May 10, 1872 (17 Stat. 91), p. 678. A. RIGHTS GRANTED TUNNEL OWNERS. B. LOCATION OF VEIN AFTER DISCOVERY IN TUNNEL, p. 174. A. RIGHTS GRANTED TUNNEL OWNERS. 1. PURPOSE AND APPLICATION OF SECTION. 2. CONSTRUCTION OF PARTICULAR TERMS USED. 4. NATURE OF TUNNEL RIGHTS. 5. LIMITATIONS ON RIGHTS OF TUNNEL OWNER. 6. RIGHTS SECURED ACCORDING TO LOCAL LAWS AND CUSTOMS. 7. TUNNEL OWNER PROTECTED PENDING DILIGENT PROSECUTION. 8. FAILURE TO PROSECUTE WORK DILIGENTLY. 9. TUNNEL RIGHTS NOT DEPENDENT ON DISCOVERY. 10. LINE OF TUNNEL-MEANING. 11. SIZE AND EXTENT OF TUNNEL LOCATION. 12. DEVELOPMENT PROJECTS NOT REPRESENTATION WORK. 13. RIGHTS OF TUNNEL OWNER ON DISCOVERY OF VEIN. 14. TUNNEL RIGHTS SUBJECT TO THOSE OF PRIOR SURFACE LOCATIONS. 15. TUNNEL RIGHTS SUPERIOR TO THOSE OF SUBSEQUENT SUR FACE LOCATORS. 16. EXTRALATERAL RIGHTS OF TUNNEL OWNER. 17. EXCESSIVE LENGTH OF TUNNEL-EFFECT. 18. RIGHT TO SURVEY AND PLAT. 19. FAILURE OF TUNNEL OWNER TO ADVERSE PATENT APPLICA TION EFFECT. 20. PATENT FOR TUNNEL NOT AUTHORIZED. 1. PURPOSE AND APPLICATION OF SECTION. The purpose of this section is to give to the tunnel locator the possession and enjoyment of all veins and lodes in the line of the tunnel not appearing on the surface. Tioga Consol. Min. Co., In re, 8 C. L. O. 88, p. 89. Adams, In re, 42 L. D. 456, p. 457. This section commonly called the tunnel-site act is applicable to veins and lodes discovered in tunnel locations. Ellet v. Campbell, 18 Colo. 510, p. 517. This section was designed to encourage the running of tunnels for the discovery and development of veins or lodes of the precious metals not appearing on the surface and not previously known to exist. Ellet v. Campbell, 18 Colo. 510, p. 519. This section was enacted for the encouragement and protection of persons engaged in exploring for precious metals by means of tunnels. Hope Min. Co. v. Brown, 7 Mont. 550, p. 554. In the construction of this statute the courts will assume that Congress considered * the hazard and expense of constructing a tunnel, and gave to the tunnel owner the advantage of all veins or lodes discovered therein as against a person locating the vein on the surface after the commencement of the tunnel, and where neither hazard nor expense is involved. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 66 Fed. 200, p. 207. It was the intention of Congress, as shown by this section, to secure rights to all such as should run tunnels for the development of a vein or lode pursuant to its previsions, and to withdraw from exploration for lodes not appearing on the surface so much of the public domain as lay upon the line of the tunnel, and to reserve such for the benefit of the tunnel owner so long as he prosecuted the work with reasonable diligence. Back v. Sierra Nevada Consol. Min. Co., 2 Idaho 420 (386, p. 390). There is no distinction to be drawn by reason of this section or of the act of February 11, 1875 (18 Stat. 315), between a tunnel claim under which a tunnel is run for the development of veins or lodes already located, or one pursuant to which a tunnel is projected for the discovery of blind lodes or veins. Adams, In re, 42 L. D. 456, p. 457. 2. CONSTRUCTION OF PARTICULAR TERMS USED. See section 2320, pp. 64, 80. The clause to the same extent as if discovered from the surface" is used in its natural and customary sense, and it measures the extent, the distance along the vein or lode to which the right of possession given by the statute extends, and not the general benefits conferred by the discovery. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 66 Fed. 200, p. 204. Ellet v. Campbell, 18 Colo. 510, p. 526. The words "not previously known to exist" refer to the time of the location and commencement of the tunnel and not the respective times of the discoveries of the various veins in the tunnel. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 66 Fed. 200, p. 205. The word "mines" in this section, the phrase "lands valuable for minerals" in section 2319 R. S., the phrase "valuable mineral deposits" in section 2319 R. S., and the expression "valuable deposits" in section 2325 R. S., as well as the term "mines of gold" in section 2392, all refer to substantially the same thing and embrace both lodes and veins and placers. Hawke v. Deffeback, 4 Dak. 20, p. 33. The words "to the same extent" used in this section refer to the length along the line of the vein or lode, as this is the natural and ordinary meaning of the words, and there is nothing in the context or in the substance to justify a different meaning. Campbell v. Ellet, 167 U. S. 116, p. 119. The words "vein," "lode," and "ledge, occurring in this section are used as being synonymous. Synnott v. Shaughnessy, 2 Idaho 122 (111, p. 116). 3. RIGHTS GRANTED BY SECTION. This section grants tunnel rights. Baillie v. Larson, 138 Fed. 177, p. 178. It gives a right to locate a tunnel 3,000 feet from the face and includes the right to lodes discovered in such tunnel the same as if discovered from the surface; that is, 300 feet on each side of the tunnel. Glacier Mountain Silver Min. Co. v. Willis, 127 U. S. 471, p. 481. Ellet v. Campbell, 18 Colo. 510, p. 522. See Corning Tunnel Co. v. Pell, 4 Colo. 507. Back v. Sierra Nevada Min. Co., 2 Idaho (386), 420. Hope Min. Co. v. Brown, 7 Mont. 550. Hope Min. Co. v. Brown, 11 Mont. 370. The owner of a tunnel, by locating it and diligently prosecuting the work, has the right of possession of all veins or lodes within 3,000 feet from its face on the line thereof, not previously known to exist, discovered in such tunnel, the same as if discovered from the surface. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 66 Fed. 200, p. 204. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 340. Campbell, In re, 4 C. L. O. 102. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 27 Colo. 1, p. 8. The right to a vein discovered in a tunnel dates by relation back to the time of the location of the tunnel site. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 167 U. S. 108, p. 113. It is the measure of the right and title to a vein which the owner of a tunnel acquires by its discovery, and it gives him a greater and more valuable right than is granted to a prospector upon the surface. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 66 Fed. 200, p. 204. It is the right to the possession of veins not known to exist before the owner of a tunnel located and commenced to excavate it that is secured to him by this section, if he subsequently finds them in his tunnel, and not the right to those only that were not known to exist when he reached them in the tunnel. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 66 Fed. 200, p. 205. The privilege granted by this section applies to one who locates a tunnel for discovery purposes as well as for development purposes. Fissure Min. Co. v. Old Susan Min. Co., 22 Utah 438, pp. 444, 445. 4. NATURE OF TUNNEL RIGHTS. A tunnel is not a mining claim, though sometimes inaccurately called so; but it is only a means of exploration or discovery. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 357. Hunter, In re, 5 C. L. O. 130. |