1 3 which miners describe as strike or course are "along the vein or lode." The strike or course of a vein, which is described in the statute as along the vein, are the simplest words which could have been selected to describe the course, and may be said to be that portion of the vein, or rather that extent of it, which more nearly agrees with the surface of the earth; it is its longitudinal section as distinguished from the dip or course downward, which will be fully considered in the future chapters of this work. It is the axis of the vein on its longitudinal section. Among the earliest cases, if not the very earliest case on this question, which came before the courts for decision, and in which the interpretation of the law was carefully gone into, was the case commonly called the Flagstaff case. In the course of the decision in that case Mr. Justice Bradley used these words to define strike of the vein: "We do not mean to say that a vein must necessarily crop out upon the surface, in order that locations may be properly laid upon it. If it lies entirely beneath the surface, and the course of its apex can be ascertained by sinking shafts at different points, such shafts may be adopted as indicating the position and course of the vein; and the locations may be properly made on the surface above it, so as to secure a right to the vein beneath. But where the vein does crop out along the surface, or is so slightly covered by foreign matter that the course of its apex can be ascertained by ordinary surface explorations, we think that the act of congress requires that this course should be substantially followed in laying claims and locations upon it. Perhaps the law is not so perfect in this regard as it might be; perhaps the true course of the vein should correspond IR. S. U. S., § 2320. 2 Post, Part XI, ch. V. See also Iron Silver M. Co. v. Elgin M. Co., 118 U. S. 196, 204; Flagstaff S. M. Co. v. Tarbet, 98 U. S. 463, 469; Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. Rep. 597; s. c. (C. C. A.), 83 Fed. Rep. 658, 28 C. C. A. 333; Patterson v. Hitchcock, 3 Colo. 523; Duggan v. Davey, 4 Dak. 110, 26 N. W. Rep. 887: Gilpin v. Sierra Nevada Cons. M. Co., 2 Idaho, 662, 23 Pac. Rep. 310. 3 Flagstaff S. M. Co. v. Tarbet, supra. with its strike, or the line of the level run through it; but this can rarely be ascertained until considerable work has been done, and after claims and locations have become fixed. The most practicable rule is to regard the course of the vein as that which is indicated by the surface outcrop, or surface explorations and workings. It is on this line that claims will naturally be laid, whatever be the character of the surface, whether a level or inclined." 2 The entire ground seems to be carefully covered by the foregoing extract from that opinion, and leaves nothing necessary to be added, except that in common practice the outcrop of a vein, as indicated by the learned judge, will not always demonstrate its true strike; this owing to the surface being eroded away, and a consequent dip exposure, as was said to be true in a Dakota case; or it may be a partial dip and strike exposure, as was the case of the Tyler vein in the Last Chance cases. This matter will be more elaborately considered when we come to deal with the apex. It is sufficient for the purpose of the present occasion to say that the law evidently contemplates that the claim shall be laid along the course or strike of the vein, and that the end lines thereof should be made parallel to each other and laid across the dip of the vein; and while parallelism is indispensable, the other feature is not, namely, that they be laid to the true dip, as that is often impossible of exact determination in the early developments of the claim. § 289. Same subject - Strike or course of the vein as understood by the miners and as defined by the judges in the mining states. The strike or course of the vein or lode is defined to be that portion of the lode in its longitudinal course, as distinguished from the portion extending downward into the earth, or dipping into the mountain side or the earth's crust. It is the extension of a lode or deposit 1 Duggan v. Davey, supra. 2 Last Chance M. Co. v. Tyler M. Co., 61 Fed. Rep. 557; Tyler v. Last Chance M. Co., 71 Fed. Rep. 848; Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683. on its horizontal line, synonymous with trend or course. It may be said to be the course of a vein on its horizontal line into the earth's surface.1 Judge Beatty, now chief justice of the state of California, in his testimony given before the Public Land Commission. said: "The strike, or course, of a vein is determined by a horizontal line drawn between its extremities and that depth at which it attains its greatest longitudinal extent. The dip of a vein, 'its course downward,' is at right angles to its strike; or, in other words, if a vein is cut by a vertical plane at right angles to its course the line of section will be the line of its dip. . . The strike, or course, of a vein can never be exactly determined until it has been explored to its greatest extent; but a comparatively slight development near the surface will generally show its course with sufficient accuracy for the purpose of a location. The dip having an exact mathematical relation to the course of the vein is, of course, undetermined until the strike is determined; but, practically, the line of dip is closely approximated by taking the steepest line by which a vein can be followed downward.”2 Mr. Lindley in his work on Mines reproduces this testimony and gives it his approval.3 In the United States supreme court it has been defined as the course of a vein on its horizontal line under the earth's surface. 1 Mr. Morrison defines it as "The extension of a lode or deposit on a horizontal line. Synonymous with trend and course." Morr. M. R. (10th ed.), p. 475, citing Von Cotta, 19. 2 Report of Public Land Commission, p. 399. 3 Lindl. Mines, sec. 318. 4 Flagstaff S. M. Co. v. Tarbet, 98 U. S. 453. CHAPTER II. STATUTORY TUNNEL CLAIMS. § 293. Tunnel claims under the statute. 294. The intention of congress as defined by the supreme court of Montana. 295. Manner of locating a statutory tunnel claim. 296. State statutes regulating tunnels - Power of the legislature considered. 297. Same subject-State statutes regulating manner of locating and marking the lode in the tunnel. 298. "Line of the tunnel" defined. 299. "Line of the tunnel" as defined by the courts. 300. Same-Extent of claim discovered in tunnel -The correct rule as enunciated by the circuit court of appeals. 301. "Face of the tunnel" defined. 302. General tunnel rights. 303. Reasonable diligence defined - Utmost good faith required. 304. Miscellaneous - Excessive tunnel claims-Protecting line of tun nel. 305. May protect tunnel by injunction. 306. Summary - Construing the statute. - § 293. Tunnel claims under the statute. The necessity of protecting the running of a tunnel for the discovery of "blind lodes or veins" was clearly recognized and is amply provided for in the statute.1 The legislation itself is wise. The principal difficulty experienced in practice is the failure of the law-makers to define "reasonable diligence." The statute manifests an apparent intention on the part of its framers to protect the tunnel claimant, throughout the entire length of three thousand feet, in the enjoyment of his rights, and to preserve those rights from encroachment so long as he operates his tunnel with reasonable diligence. Therefore, during the time he so operates his tunnel, there 1 R. S. U. S., § 2323. is a reservation in his favor, extending three thousand feet from the "face" of his tunnel, with fifteen hundred feet in the opposite direction on the strike of the vein, from either wall of his tunnel, or he may lay his claim fifteen hundred feet on the vein laid across his tunnel in any direction, provided his discovery is wholly within his claim as he thus measures and claims it. This statute reads: "Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owner of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from face of such tunnel, on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered upon 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."? § 294. The intention of congress as defined by the supreme court of Montana.- The supreme court of Montana carefully considered the circumstances surrounding a tunnel claim, and the law and policy of the law controlling the right, and we feel justified in reproducing the following extract from the opinion: "It seems to us that the intent of the statute is to provide for this condition in which the parties are placed, and reserves to the tunnel claimant the 1 See Enterprise M. Co. v. RicoAspen M. Co., 13 C. C. A. 390; affirmed, 167 U. S. 108; Campbell v. Ellet, 167 U. S. 116; Glacier Mtn. Silver M. Co. v. Willis, 127 U. S. 471; Bodie Tunnel Co. v. Bechtel M. Co., 8 C. L. O. 173; Table Mt. Tunnel Co. v. Stranahan, 21 Cal. 548; Corning Tunnel Co. v. Pell, 4 Colo. 507; Ellet v. Campbell, 18 |