The subsurface is as free and open to exploration as the surface, and a tunnel is only a means of exploration. A citizen is no more required to have a permit for exploration by tunnel beneath the surface than to explore on the surface for mineral. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 355. The claim of a tunnel mining company, or a tunnel location, is a mining claim within the meaning of the mining laws. Bodie Tunnel & Min. Co. v. Bechtel Consol. Min. Co., 1 L. D. 584, p. 587. A tunnel location is a mining claim, and the owner may present it as an adverse claim in a proper case. Bodie Tunnel & Min. Co. v. Bechtel Consol. Min. Co., 8 C. L. O. 173, p. 174. No patent can issue for a vein or lode without surface ground, and as the surface which overlies the apex of a vein or lode discovered in a tunnel can only be ascertained by sinking a shaft or by following a lode upon its dip from the point of discovery, the survey of such a lode can not be properly made until it has been definitely determined what portion of the public domain overlies the apex of such lode. Campbell, In re, 4 C. L. O. 102, p. 103. The question of whether this section authorizes the location of ground for dumping purposes, together with a tunnel location, must be decided by a proper court in the adverse proceedings and will not be decided by the Land Department. Burton, In re, 29 L. D. 235, p. 236. 5. LIMITATIONS ON RIGHTS OF TUNNEL OWNER. The locator of a surface mining claim is not required to adverse an application for patent for a lode claim made by a tunnel owner whose tunnel was located and constructed subsequent to such surface location, and such failure to adverse does not preclude the surface locator from asserting his rights as against the tunnel owner, and such tunnel owner is not entitled to the ore in a blind vein discovered in his tunnel at a point beneath the surface and is in the vertical side lines of such prior surface location. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 340. This section provides what rights may be acquired to blind veins discovered in a tunnel run for the development of the vein, or for the discovery of mines, and provides how inchoate rights to blind veins may be initiated and become absolute, but does not declare that a tunnel may be projected into or across prior valid locations, nor does it grant a tunnel owner the right to search for minerals in lands belonging to another, or that thereby a location for such purposes can be carved out of appropriated public domain; but it does provide that locations on the line of the tunnel as contemplated of veins not appearing on the surface made by others after the commencement of tunnel work, and while it is being diligently prosecuted, shall be invalid. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 27 Colo. 1, p. 23-25. While this section offers some inducements for running a tunnel, yet it places specific limitations on the rights which the tunnel owner can acquire. Thus his rights reach only to blind veins, such as are not known to exist and not discovered from the surface, but he can acquire no vein which has previously been discovered from the surface. It also limits the length of the tunnel to 3,000 feet, beyond which he can acquire no rights under his tunnel location, and the veins to which he can acquire any right are those which the tunnel itself crosses. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 167 U. S. 108, p. 113. This section, construed in connection with section 2320, R. S., gives a tunnel claimant no right to any claim except for such veins or lodes as may be discovered within 3,000 feet from the face of his tunnel and in the tunnel itself. Hope Min. Co. v. Brown, 7 Mont. 550, p. 555. 6. RIGHTS SECURED ACCORDING TO LOCAL LAWS AND CUSTOMS. When a tunnel right is secured according to local statutes or customs and regulations of miners, then this section permits a tunnel 3,000 feet in length and a right to appropriate the veins.discovered therein to the same extent as if discovered from the surface. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 355. This section makes no provision as to what is necessary in order to secure a tunnel right, but this is left to the customs and regulations of miners and the statutes of the several States. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc. Co., 196 U. S. 337, p. 355. 7. TUNNEL OWNER PROTECTED PENDING DILIGENT PROSECUTION. See sec. 2324, R. S. (amended section), p. 282. The owner of a tunnel in process of construction has a right not accorded to a surface discoverer in that he is protected pending the progress of the tunnel construction against all locations made on the surface on the line of the tunnel. Hope Min. Co. v. Brown, 7 Mont. 550, p. 555. See Hope Min. Co. v. Brown, 11 Mont. 370, p. 379. From the time of the location of a tunnel under this section the owner has the inchoate right to the possession of every vein or lode within 3,000 feet from the face of such tunnel on the line thereof that was not known to exist when the tunnel was located and its excavation commenced, depending only upon the diligent prosecution of the work and the subsequent discovery of the vein therein. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 66 Fed. 200, p. 207. A tunnel site located under this section may be utilized for development purposes, and while the owner may lose the right to the tunnel site by failure to prosecute the work with reasonable diligence, yet the work may be credited as assessment work on claims which are in fact benefited by it. Dawson, In re, 40 L. D. 17, p. 20. See Fissure Min. Co. v. Old Susan Min. Co., 22 Utah 438. 8. FAILURE TO PROSECUTE WORK DILIGENTLY. The owner of the tunnel is impliedly given an inchoate right in any veins or lodes which may be found within, or within a certain distance of his tunnel, and this right is kept alive by his diligent prosecution of the work, and a failure to work on his tunnel for six months is considered an abandonment of the right to all undiscovered veins on the line of the tunnel. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 167 U. S. 108, p. 114. Back v. Sierra Nevada Consol. Min. Co., 2 Idaho 420 (386). This section gives a tunnel owner the right of possession of all veins or lodes within 3,000 feet from the surface of his tunnel and on the line thereof, and makes void lode locations on the line of the tunnel while the same is being prosecuted with reasonable diligence, but a six months' failure to prosecute the work is considered as an abandonment. Hope Min. Co. v. Brown, 11 Mont. 370, p. 378. A failure to prosecute the work on a tunnel for six months is considered an abandonment of the right to all undiscovered veins on the line of such tunnel. Fissure Min. Co. v. Old Susan Min. Co., 22 Utah 438, p. 444. 9. TUNNEL RIGHTS NOT DEPENDENT ON DISCOVERY. A discovery of mineral is not essential to create a tunnel right or to maintain possession thereof. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 355. Uinta Tunnel Min., etc., Co. v. Ajax Gold Min. Co., 141 Fed. 563, p. 567. This section gives to the tunnel discoverer the right to possession of the veins and prescribes no condition to the discovery. Campbell v. Ellet, 167 U. S. 116, p. 119. This section provides that the owner of a tunnel by locating and diligently prosecuting it, without the discovery of any vein or lode, 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. p. 114. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 167 U. S. 108, This section seems to give the right to the possession of certain veins or lodes to the owner of a tunnel before his discovery or location to any lode or vein whatever, depending only upon his subsequent discovery of such veins in his tunnel. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 167 U. S. 108, p. 113. 10. LINE OF TUNNEL-MEANING. The line of a tunnel, within the meaning of this section, is a "width marked by the exterior lines or sides of the tunnel," and a lode outside of such exterior lines is not on the line of the tunnel. Bodie Tunnel & Min. Co. v. Bechtel Consol. Min. Co., 1 L. D. 584, p. 589. Hope Min. Co. v. Brown, 11 Mont. 370, p. 379. See Back v. Sierra Nevada Consol. Min. Co., 2 Idaho 420 (386). The line of the tunnel, as used in this section, is the width thereof and no more, and upon this line only is prospecting for blind lodes prohibited while the tunnel is in progress, and the words "not previously known to exist" refer to undiscovered veins or lodes. Hunter, In re, 5 C. L. O. 130. The line of a tunnel, within the meaning of this section, is the width thereof and no more, and upon this line only is prospecting for blind lodes prohibited while the working of the tunnel is in progress, but tunnel owners are granted a right to 1,500 feet of each blind lode not previously known to exist which may be discovered in such tunnel; but other parties are debarred from prospecting for blind lodes or running tunnels outside of the line of another tunnel, and the line of any such tunnel must be marked on the surface by stakes or monuments placed along the same from the point of commencement to the terminus of the tunnel line; and when a lode is first discovered by reason of such a tunnel, the tunnel owners have the option of recording their claim of 1,500 feet on one side of the point of discovery or partly upon one side and partly upon the other; but such a claim can not absorb the actual claim or possession of other parties on a lode which had been discovered and claimed outside the line of such tunnel before the discovery. Corning Tunnel, Min., etc., Co. v. Pell, 3 C. L. O. 130, p. 131. 56974°-Bull. 94-15--14 11. SIZE AND EXTENT OF TUNNEL LOCATION. A tunnel location 6 feet wide and 3,000 feet in width along the course of the tunnel may be recognized. Corning Tunnel Min., etc., Co. v. Pell, 3 C. L. O. 130, p. 131. There is no authority for the location by a tunnel owner of a mining claim describing a tract of land 3,000 by 1,500 feet and embracing more than 100 acres of land. Corning Tunnel, Min., etc., Co. v. Pell, 3 C. L. O. 130, p. 131. This section does not state what shall be the limits of a tunnel right, and there is no authority for extending it to 300 feet on each side of the tunnel, but the rights of the tunnel owner are limited to discoveries on the line of the tunnel and on the line of a vein or lode discovered in the tunnel. Hope Min. Co. v. Brown, 7 Mont. 550, p. 556. 12. DEVELOPMENT PROJECTS NOT REPRESENTATION WORK. The term "development" used in this section refers only to the work required to be done after the discovery and location and may apply to a tunnel run for the development of a vein or lode, but this language presupposes a discovery. Union Oil Co., In re, 23 L. D. 222, p. 223. Where a tunnel has been run for the discovery of a mine and the claims are predicated upon blind veins or lodes discovered in the tunnel, the department believes it neither consistent with the spirit of the statutory provision governing expenditures either for annual representation or patent purposes, nor permissible from the standpoint of administrative considerations, that a purely development project, though of the necessary aggregate value, if wholly preceding the location of a claim or any portion of a group, should be accepted in full satisfaction of the requirement as to a subsequent location or locations, where the statute requires that an expenditure of at least the value of $500 shall succeed the location of every claim having its development in view and contributing sufficiently to that end. Aldebaran Min. Co., In re, 36 L. D. 551, p. 557. See Chambers v. Harrington, 111 U. S. 350. Copper Glance Lode, In re, 29 L. D. 542, p. 548. 13. RIGHTS OF TUNNEL OWNER ON DISCOVERY OF VEIN. On the discovery of a vein or lode in a tunnel the rights of the tunnel claimant are exactly in extent what they would be if the discovery had been made from the surface. Hope Min. Co. v. Brown, 7 Mont. 550, p. 555. The owner of a tunnel mining claim, upon the discovery of a vein in his tunnel while prosecuting it with reasonable diligence, is entitled to the possession of such vein to the same extent along such vein as if discovered from the surface, and is entitled to the possession of any 1,500 feet in continuous length along such vein, which includes the point of discovery in his tunnel. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 66 Fed. 200, p. 211; reversing Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 53 Fed. 321, p. 323. Harris v. Equator Min., etc., Co., 8 Fed. 863, p. 865. Ellet v. Campbell, 18 Colo. 510. 14. TUNNEL RIGHTS SUBJECT TO THOSE OF PRIOR SURFACE LOCATIONS. There is no implication that the location of a tunnel is a displacement of any valid surface location made before the commencement of the tunnel; but on the contrary it is a necessary implication of the preservation of any such surface rights. There is no implication of any conflict with the rights given by this section and those given by the preceding section. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, pp. 357, 358. The right of way of tunnels given in this section are subject to the rights conferred upon surface locators of mining locations under the preceding section. Calhoun Min. Co. v. Ajax Gold Min. Co., 182 U. S. 499, p. 501. A claim under a right of possession may be asserted by virtue of a prior discovery to a vein or lode discovered in running a tunnel. Ellet v. Campbell, 18 Colo. 510, p. 517. A tunnel locator can take no rights which conflict with a prior valid location, and priority determines the rights between conflicting locations, and the rights of a locator to a valid existing location can not be affected by a subsequent tunnel location. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 27 Colo. 1, p. 24. See Enterprise Min. Co. v. Řico-Aspen, etc., Min. Co., 167 U. S. 108. Ellet v. Campbell, 18 Colo. 510. Campbell v. Ellet, 167 U. S. 116. The law gives a tunnel owner only such lodes as may be discovered on his tunnel, and only prevents the location by other parties of lodes upon the line of such tunnel, not appearing on the surface, and accordingly a tunnel discovery can not affect a lode location made by discovery on the surface. Corning Tunnel Min., etc., Co. v. Pell, 3 C. L. O. 130, p. 131. A tunnel owner has no right of way for his tunnel through the ground of a prior surface location so far as it is based on the statutes of the United States, and such right must attach if at all under local statutes. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 182 U. S. 499, p. 509. In a controversy over the ownership of minerals between the owner of a tunnel and the surface locator, the tunnel owner is not permitted to prove that at the time of the location of his tunnel no mineral had in fact been discovered on the surface location where a patent has been regularly issued to the surface locator. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 182 U. S. 499. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 355. There is no statutory warrant for placing in a patent to the owner of a lode claim any limitation of his title by a reservation of tunnel rights. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 358. Deffeback v. Hawke, 115 U. S. 392, p. 406. A tunnel site can only embrace unappropriated public domain, and under this section no rights are conferred to extend a tunnel through previous valid subsisting locations, and a tunnel locator has no right to invade an existing surface lode location and take therefrom any ore or mineral. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 27 Colo. 1, p. 28. A tunnel owner may have the right to continue his tunnel through a lode claim either before or after patent. Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 358. |