on the line of such tunnel of veins or lodes not appearing at 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. The word "line" appears in no other connection in the statute. As we shall hereafter note, the statute is silent as to the manner of marking the tunnel location on the ground. The character of this marking is defined in the regulations adopted by the secretary of the interior, These regulations require that the boundary lines of the tunnel shall be marked 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."1

We have therefore to consider the phrase "line of the "tunnel" in two aspects, -the line that is to be marked on the surface, and the lines which define boundaries within which prospecting at the surface by third parties is practically inhibited. The natural assumption would be that stated in the regulations,-the lines to be marked on the surface means the lines within which prospecting is prohibited. But on this subject there seems to be some confusion of thought observable in the decisions. So far as the land department is concerned, we find the following views to have been expressed :

In the case of Corning Tunnel M. and R. Co. v. Pell,2 the commissioner of the general land office held that the line of the tunnel named in the statute was the width of the tunnel bore (six feet) and three thousand feet long, not a rectangular parallelogram, three thousand feet

1 Regulations Land Department, par. 18. See Appendix.

3 Copp's L. O. 130, 131.

Lindley on M.-52

square or three thousand feet by fifteen hundred feet. All of its rulings on this point have been to the same effect. According to the interpretation by the department, prospecting at the surface was only inhibited within these narrow limits.1

This view was fully approved by the supreme courts of Colorado 2 and Montana,3 and inferentially upheld by the supreme court of Idaho.*

The circuit court of appeals for the eighth circuit, while, as we shall hereafter note, determining that the area within which prospecting is inhibited is the rectangular parallelogram three thousand feet square, refers to the discovery on the line of the tunnel as necessarily indicating the width and course of the bore.5

But there was no attempt to judicially define what was meant by the lines of the tunnel which are required to be marked by departmental regulations. Our deductions as to the required marking will be found in a subsequent section."

474. "Face" of tunnel defined. The land department construes the term "face of such tunnel," as used in the Revised Statutes, 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 measured. There is no room for dispute as to this. While it is true that operations, as work

in the conduct of active mining

1 In re David Hunter, 5 Copp's L. O. 130; In re John Hunter, Copp's

Min. Lands, 222; In re J. B. Chaffee, Copp's U. S. Min. Dec. 144.

2

Corning Tunnel Co. v. Pell, 4 Colo. 508, 511.

Hope M. Co. v. Brown, 7 Mont. 550, 557, 19 Pac. 218; Id., 11 Mont. 370, 379, 28 Pac. 732.

B

Back v. Sierra Nev. Cons. M. Co., 2 Idaho, 386, 17 Pac. 83.

Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. 200.

Post, § 475.

See monograph by Dr. Raymond entitled "Tunnel Rights under the "United States Mining Laws,'' Min. Ind., vol. vi, pp. 681, 686.

advances the face of the drift or tunnel recedes farther into the hill, and its locus is constantly changed, yet the word as used in the tunnel law can mean but the one thing, and that is, the first full exposure of height and width after entering under cover. It was manifestly intended that the length of the open surface approach to where the tunnel enters cover was not to be considered in estimating the three thousand feet, and for that reason the term "face" was used.

475. The marking of the tunnel location on the ground. In marking the tunnel location on the surface it has been the custom to mark it by two parallel lines of stakes defining the width of the tunnel bore and following the course of the projected tunnel to the length of three thousand feet. This was the construction placed by the land department upon the phrase "line of the "tunnel" employed in the statute, and was the marking contemplated by the departmental regulations.1

Strictly speaking, for the purpose of marking, this is the line of the tunnel. At the same time it is now well settled that such marking does not define the area within which prospecting at the surface is inhibited.2

Logically, the marking of the tunnel location should be effected by marking the exterior boundaries of the parallelogram, within the area of which prospecting is not permitted, or, rather, permitted at the peril of the prospector. As a matter of caution, the line and width of the projected tunnel bore, as well as the exterior boundaries of the parallelogram, should be marked at the surface.

ARTICLE III.

RIGHTS ACCRUING TO THE TUNNEL PROPRIETOR BY VIRTUE OF HIS TUNNEL LOCATION.

§ 479. Important questions suggested by the tunnel law. § 480. Rule of interpretation applied.

§ 488.

§ 481. Length upon the discovered lode awarded to the tun

nel discoverer.

§ 482. Necessity for appropriation of discovered lode by surface location.

483. To what extent does the inception of a tunnel right and its perpetuation by prosecuting work with reasonable diligence operate as a withdrawal of the surface from exploration by others?

8 484. The Colorado rule.

§ 485. The Montana rule. § 486. The Idaho rule.

The doctrine announced by the circuit court of appeals, eighth circuit.

§ 489. Tunnel locations before the supreme court of the United States.

§ 490. Opinions of the land department.

§ 490a. Rights of junior tunnel locator as against senior mining claims on the line of the tunnel.

§ 491. Inquiries suggested in the light of rules thus far enunciated by the supreme court of the United States as to the extent of the rights of a tunnel locator on a vein discovered in the tunnel.

2479. Important questions suggested by the tunnel law. The provisions of the law upon the subject of tunnel locations present for consideration several important questions, the solution of which has engaged the attention of the courts, both state and federal. The inquiries suggested may be thus formulated:

(1) What are the rights accruing to the tunnel proprietor by virtue of a discovery made in the tunnel, in the absence of conflicting rights acquired by surface discovery?

(2) To what extent does the inception of a tunnel right and its perpetuation by prosecuting work with diligence operate as a withdrawal of the surface from exploration by others?

(3) What rights, if any, are secured by a junior tunnel locator as against senior mining locations which are covered by the line of the tunnel bore?

Some incidental questions necessarily arise, the correct solution of which depends upon reaching a satisfactory conclusion, by way of answers, to one or the other of the foregoing inquiries.

480. Rule of interpretation applied. It is an elementary rule in the interpretation of laws that a given statute should be construed in connection with all other statutes which are essentially in pari materia.1

In applying this doctrine to the tunnel laws, and attempting a construction which would be in harmony with the entire body of the mining law, the courts, state and federal, have encountered serious difficulties, and have reached results which practically place locations on lodes discovered in a tunnel located under the tunnel laws in a distinct category by themselves, leaving still open for discussion many important questions which will have to be adjusted without regard to the main body of the mining laws. This will be made manifest as we outline the state of the law as announced by the courts.

2481. Length upon the discovered lode awarded to the tunnel discoverer.-Section twenty-three hundred and twenty of the Revised Statutes provides that a mining location based upon a surface discovery may equal, but shall not exceed, fifteen hundred feet in length.

As to the length on the discovered lode to which the tunnel discoverer is entitled, Judge Hallett was of the opinion that it was not fixed by the act of congress, but

'Pennington v. Coxe, 2 Cranch, 33; Washington Market Co. v. Hoffman, 101 U. S. 112; Platt v. Union Pac. R. R., 99 U. S. 48; Kohlsaat v. Murphy, 96 U. S. 153; Heydenfeldt v. Daney G. and S. M. Co., 93 U. S. 634; Neal v. Clark, 95 U. S. 704.