*

*

all but the government, so long as he does the annual labor. When such party comes to apply for patent, his occupancy must be proven under certain regulations of the department (2 Lindley, 1714), and, when so proved, if there be no adverse claimant, they are sufficient, as the statute says, 'to establish a right to a patent.' But in this he stands on the same basis as the holder of a location whose application is uncontested. The holder of such a possession, no less than the holder of a location, must possess the necessary qualifications as to citizenship. Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419. He must prove, as well as the locator, the possession of $500 worth of labor or improvements before he can secure patent. Capital No. 5 Placer Min. Claim, 34 Land Dec. Dep. Int. 462, supra."

It will be seen that the New Mexico court and the authorities there cited hold in substance that continuous, open, adverse possession of mining ground for the full period required by the local statute of limitations, accompanied by an annual performance of the work or improvement on the claim required by the statute, obviates the necessity of making proof of the posting and the recording of a location notice, and supplies the place of record title. Mr. Snyder in his work on Mines (volume 1, § 672), in discussing the application of section 2332 of the Revised Statutes of the United States to the statute of limitations and the method of acquiring title thereby, says: "The effect of this statute is to relieve the applicant from the necessity of proving his location of the claim, the location by his predecessors, or the furnishing of an abstract of title, as in other cases, but he is required to furnish a duly certified copy of the statute of limitations of the state or territory, together with his own sworn statement showing the facts as to the origin of his title and continuation of his possession of the ground applied for, the area thereof, the nature and extent of the work done, whether there has been any opposition to or litigation regarding his possession of the ground, and, if so, when the same ceased, whether such cessation was the result of compromise or judicial decree, and any other facts bearing upon the question. This provision relates solely to the procedure relative to proving title. All other steps in the matter of application are the same as heretofore outlined. And, where an adverse claim is filed in the land office, the applicant is obliged to defend his rights in a court of competent jurisdiction, the same as though his application were based upon a valid location; but upon the trial, as in the land office, proof of possession and work for a period equal to the statute of limitations would be equivalent to a location. It would seem that he ought also to furnish proof that the claim was actually marked upon the ground by him or his predecessors, and that such markings correspond substantially with the description of the claim as surveyed and applied for. His status, however, if an adverse claim is filed, is not so clear. If the owner's boundaries are plainly marked and an actual

adverse possession maintained, it would seem to be equally conclusive against the adverse claimant. But that is an independent fact, and the adverse claim must rest upon its own merits. The statute simply undertakes to dispense with many of the formalities in the way of proof in the absense of an adverse claim." Mr. Lindley in volume 2 of his work on Mines, at section 688, takes substantially the same view, and in support thereof places special reliance on the opinion of Judge Sawyer in 420 Mining Co. v. Bullion Mining Co., 3 Sawy. 634, Fed. Cas. No. 4,989, 11 Morr. Min. Rep. 608, 9 Nev. 240. To the same effect, see Harris v. Mining Co. (C. C.) 8 Fed. 863, 37 Land. Dec. Dept. Int. 772, and Snyder on Mines, §§ 155 and 357. It seems to us that the provisions of section 2332 of the Revised Statutes of the United States are intended to obviate the necessity for proof of posting and recording a notice of location in cases where the claimant to mineral ground has been in the actual, open, and exclusive possession of the ground for a period equal to that required. by the local statute of limitations governing adverse possession of real estate. The adverse possession referred to in the statute is intended to supply the place of an abstract of title and such proofs as are furnished by the county recorder.

[5] It still remains, however, for the person who asserts claim by adverse possession to have made a mineral discovery, and to have performed the annual assessment work, and to have had the boundaries of his claim so marked and indicated as to afford actual notice of the extent and boundaries of his claim and possession, and to have maintained an actual possession and excluded all adverse claimants for the full period prescribed by the statute, and to have likewise maintained his possession and occupancy during the subsequent period of time in which the adverse locator attempted to initiate his right by locating the claim.

We conclude that the order vacating the judgment and setting aside the default should be affirmed, and it is so ordered. Costs awarded to respondent.56

"Appellees contend that the original locations of the Bell and White Eagle claims were void, because the land covered thereby was not subject to location at the time they were made; E. C. Bartlett and S. E. Williams having previously, on the 12th of March, 1885, made mining locations, known as the Bon Ton and Small Hope claims, on the same land. The evidence indicates that Bartlett and Williams had abandoned their claims when the Bell and White Eagle claims were located. After locating the Bon Ton and Small Hope claims, they never undertook to develop and maintain them. The Bell and White Eagle claimants took possession, and held and developed them by work and labor performed, and held adverse possession of the same for a longer time than the period of limitation prescribed by statute. This was sufficient to render their claim valid against every one except the United States. Mining Co. v. Willis, 127 U. S. 471, 8 Sup. Ct. 1214, 32 L. Ed. 172; Francoeur v. Newhouse (C. C.) 43 Fed. 236; Four Hundred and Twenty Min. Co. v. Bullion Min. Co., 3 Sawy. 634, Fed. Cas. No. 4,989; Harris v. Mining Co. (C. C.) 3 McCrary, 14, 8 Fed. 863." Battle, J., in Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525, 69 S. W. 572, 576, 91 Am. St. 87.

CHAPTER V.

THE LOCATION OF TUNNEL SITES AND OF BLIND VEINS IN TUNNELS.

FEDERAL STATUTE.

SEC. 2323. 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 three thousand 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. Rev. St. U. S. § 2323.

COLORADO STATUTE.

If any person or persons shall locate a tunnel claim for the purpose of discovery, he shall record the same, specifying the place of commencement and termination thereof, with the names of the parties interested therein.-Rev. St. Colo., 1908, § 4207.

GENERAL LAND OFFICE RULES AND REGULATIONS.

16. The effect of section 2323, Revised Statutes, is to give the proprietors of a mining tunnel run in good faith the possessory right to fifteen hundred feet of any blind lodes cut, discovered, or intersected by such tunnel, which were not previously known to exist, within three thousand feet from the face or point of commencement of such tunnel, and to prohibit other parties, after the commencement of the tunnel, from prospecting for and making locations of lodes on the line thereof and within said distance of three thousand feet, unless such lodes appear upon the surface or were previously known to exist. The term "face," as used in said section, is construed and held to mean the first working face formed in the tunnel, and to signify the point at which the tunnel actually enters cover; it being from this point that the three thousand feet are to be counted upon which prospecting is prohibited as aforesaid. 17. To avail themselves of the benefits of this provision of law, the proprietors of a mining tunnel will be required, at the time they enter cover as aforesaid, to give proper notice of their tunnel location by erecting a substantial post, board, or monument at the face or point of commencement thereof, upon which should be posted a good and sufficient notice, giving the names of the parties or company claiming the tunnel right; the actual or proposed course or direction of the tunnel, the height and width thereof, and the course and distance from such face or point of commencement to some permanent well-known objects in the vicinity by which to fix and determine the locus

in manner heretofore set forth applicable to locations of veins or lodes, and at the time of posting such notice they shall, in order that miners or prospectors may be enabled to determine whether or not they are within the lines of the tunnel, establish the boundary lines thereof, by stakes or monuments placed along such lines at proper intervals, to the terminus of the three thousand feet from the face or point of commencement of the tunnel, and the lines so marked will define and govern as to specific boundaries within which prospecting for lodes not previously known to exist is prohibited while work on the tunnel is being prosecuted with reasonable diligence.

18. A full and correct copy of such notice of location defining the tunnel claim must be filed for record with the mining recorder of the district, to which notice must be attached the sworn statement or declaration of the owners, claimants, or projectors of such tunnel, setting forth the facts in the case; stating the amount expended by themselves and their predecessors in interest in prosecuting work thereon; the extent of the work performed, and that it is bona fide their intention to prosecute work on the tunnel so located and described with reasonable diligence for the development of a vein or lode, or for the discovery of mines, or both, as the case may be. This notice of location must be duly recorded, and, with the said sworn statement attached, kept on the recorder's files for future reference. Land Office Mining Regulations, rules 16-18.

ENTERPRISE MIN. CO. v. RICO-ASPEN CONSOL.
MIN. CO. ET AL.

1897. SUPREME COURT OF THE UNITED STATES.
167 U. S. 108, 42 L. ed. 97, 17 Sup. Ct. 762.

ON Writ of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit.

The facts are these:

The Group tunnel site under which the Enterprise Mining Company, the defendant and appellant, claims the right to the ores in controversy, was located on July 25, 1887, and the certificate of location was filed in the office of the county clerk and recorder of the county in which the location was made on August 29, 1887.

The Vestal lode mining claim, under which the plaintiffs (the appellees) claim title, is based upon a discovery made on March 23, 1888. The claim was located on April 1, 1888, and the location certificate was filed for record on April 3, 1888.

The situation of the properties is sufficiently disclosed by the following diagram:

The ore in controversy is within the limits of the tract, A, B, C, D. As to this tract, the two locations, the Vestal and Jumbo No. 2, conflict. The owners of the Vestal claim made application in 1890 for a patent. No adverse proceedings were instituted by the defendant, and a patent for the claim was issued on February 6, 1892. At the time of these proceedings no discovery of a vein in the tunnel had been made. But on June 15, 1892, a vein was discovered 1,920 feet from its portal, at the place marked "Discovery" on the diagram. Immediately thereafter the defendant caused the boundaries of the claim Jumbo No. 2 to be located upon the surface of the earth, and a certificate of location to be duly recorded, in which it claimed 54 feet along the vein to the northeasterly of the tunnel, and 1,446 feet southwesterly. The position of this claim appears sufficiently on the diagram. The portion of this vein within the limits of the Vestal claim is about 750 feet from the line of the tunnel. This suit was commenced in the circuit court of the United States for the District of Colorado, on September 3, 1892, and was decided by that court in favor of the plaintiffs. 53 Fed. 321. On appeal to the court of appeals this decision was reversed (32 U. S. App. 75, 13 C. C. A. 390, and 66 Fed. 200), and the case remanded for further proceedings. Thereupon the case was brought here on a writ of certiorari. Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

It will be observed that so far as the mere location of the two claims, Vestal and Jumbo No. 2, the former was prior in time to the