was left to local regulation, and that, in the absence of such regulation, nothing would pass but the line of the tunnel.1

Prior to the passage of the congressional law, a state statute was in existence in Colorado,2 fixing the length at two hundred and fifty feet each way from the tunnel, and Judge Hallett held this statute to be controlling after the enactment of the federal law. The supreme court of the United States has incidentally stated that such was the rule, but the case then under consideration arose out of a location made in 1865, at a time when the statute was undoubtedly controlling.3

The supreme court of Colorado has determined that this state law was not in force after the passage of the congressional law, and that a discovery in the tunnel entitled the discoverer to fifteen hundred feet in length on the lode, under the provisions of section twenty-three hundred and twenty of the Revised Statutes, which ruling was followed by the circuit court of appeals for the eighth circuit, overruling the decision of Judge Hallett above referred to."

The supreme court of Montana has stated that when veins or lodes are discovered in the tunnel, the claimant will be entitled, as a matter of right, to the vein or lode for fifteen hundred feet in length, and this was

: Rico-Aspen Cons. M. Co. v. Enterprise M. Co., 53 Fed. 321. Mills' Annot. Stats., § 3141.

Glacier Mt. S. M. Co. v. Willis, 127 U. S. 471, 481, 8 Sup. Ct. Rep.

1214.

Followed in Enterprise M. Co. v. Rico-Aspen M. Co., 167 U. S. 108, 17 Sup. Ct. Rep. 762; Calhoun G. M. Co. v. Ajax G. M. Co., 27 Colo. 1, 83 Am. St. Rep. 17, 59 Pac. 607, S. C. 182 U. S. 499, 21 Sup. Ct. Rep. 885.

Ellet v. Campbell, 18 Colo. 510, 33 Pac. 521.

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

7 Hope M. Co. v. Brown, 7 Mont. 550, 555, 19 Pac. 218. At one time a state law existed in Montana limiting the extent to three hundred feet on each side of the discovery, but this has since been repealed by implication. Civ. Code of 1895, § 4672; Pol. Code of 1895, § 5186.

the understanding of the law expressed by the commissioner of the general land office.1

The supreme court of the United States has definitely settled the question by announcing the rule that the right of a tunnel locator to locate a claim to the vein arises upon its discovery in the tunnel, and may be exercised by locating that claim the full length of fifteen hundred feet on either side of the tunnel, or in such proportion thereof on either side as the locator may desire.2

2482. Necessity for appropriation of discovered lode by surface location.-It being well established that the tunnel discoverer is entitled to fifteen hundred feet in length on his discovered lode, the inquiry naturally suggests itself: How is he to disclose his intention as to the extent and direction in which he shall take it, so as to inform others where his rights end and theirs may begin? How are other prospectors to find out where to search for or locate lodes, with due regard to the rights of the tunnel discoverer?

Judge Hallett, in the case of Rico-Aspen Cons. M. Co. v. Enterprise M. Co.,3 ruled that in case of a location based upon discovery made in a tunnel, it is as necessary to mark the boundaries on the surface and file a certificate for record as in any other case. This would seem to be in accord with the views of Commissioner Williamson, who instructed the surveyor-general of Colorado, that "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 up on its dip from the point of "discovery, no survey of such lode will be made until

1 Commissioner Drummond, Copp's Min. Dec. 144.

Enterprise M. Co. v. Rico-Aspen M. Co., 167 U. S. 108, 113, 17 Sup. Ct. Rep. 762.

353 Fed. 321.

"the exact surface ground is first ascertained;"1 and this ruling has been uniformly adhered to by the land department.

The supreme court of Colorado, however, took a different view. It announced the rule that location on the surface by defining surface boundaries is not neces

sary.

Its argument is based upon the following reasoning:

"Section twenty-three hundred and twenty-three was "obviously designed to encourage the running of tun"nels for the discovery and development of veins or "lodes of the precious metals not appearing upon the "surface and not previously known to exist. Little "encouragement would the act give if the discoverer "of the lode in a tunnel were bound also to find the apex "and course of such vein, uncover the same from the surface, sink his location shaft thereon, mark the "boundaries thereof, and record his certificate of such "surface location, the same as if he had made the original discovery from the surface.

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"The location of a lode from the surface is always "attended with more or less difficulty and uncertainty. "Mistakes occur in the location of boundary lines, even "where the apex and course of the vein lie compara"tively near the surface. These difficulties and uncer"tainties are liable to be greatly increased where a lode "is discovered by means of a tunnel driven hundreds "and thousands of feet into the heart of the great "mountain. To require the discoverer of a lode in a "tunnel to prospect for the vein upon the surface, and "uncover and mark its boundaries so as to include the

apex and course within the lines of the surface loca"tion, would be to require a work of supererogation, "for no surface location is necessary for the convenient "working of the lode discovered in a tunnel location "already made. Such requirement would unnecessarily burden the tunnel locator and discoverer; to the

14 Copp's L. O. 102. See, also, In re David Hunter, Copp's Min. Lands,

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great labor and expense of tunneling as a means of a "location and discovery, it would add the labor and expense devolving upon the ordinary surface discov"erer and locator. Besides, such a requirement would subject the discoverer of a lode in a tunnel to the "hazard of a race for its surface location; and thus the "discoverer might have the fruits of his labor wrested "from him by a surface locator who had done nothing "and expended nothing in the original discovery."

The location of the lode discovered in the tunnel in this case was by posting a notice at the mouth of the tunnel, claiming seven hundred and fifty feet on each side of the discovery-point in the tunnel, five hundred and ninety-four feet from its face. A notice was also recorded in the county recorder's office, corresponding with the posted notice.

The supreme court of the United States, in affirming the decision of the state court, thus expresses itself:

"It will be noticed that the tunnel company posted at "the mouth of the tunnel a notice of its discovery of "this lode and the extent of its claim thereon, and also "that it caused to be filed in the office of the recorder "of the county a location certificate, as required by the "local statute. Mills' Ann. Stats., secs. 3150, 3151. It "will also be perceived that sec. 2323, Rev. Stats., gives "to the tunnel discoverer the right of possession of the "veins. It in terms prescribes no conditions other than discovery. The words 'to the same extent' obviously "refer to the length along the line of the lode or vein. "Such is the natural and ordinary meaning of the "words, and there is nothing in the context or in the "circumstances to justify a broader and different "meaning. Indeed, the conditions surrounding a "vein or lode discovered in a tunnel are such as to "make against the idea or necessity of a surface loca"tion. We do not mean to say that there is any impro

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priety in such a location, the locator marking the "point of discovery on the surface at the summit of a

Ellet v. Campbell, 18 Colo. 510, 519, 520, 33 Pac. 521.

"line drawn perpendicularly from the place of discovery in the tunnel, and about that point locating "the lines of his claim, in accordance with other pro"visions of the statute. It may be true, as suggested in "Morrison's Mining Rights, 8th edition, page 182, that "before a patent can be secured there must be a surface "location. Rev. Stats., sec. 2325. But the patent is "not simply a grant of the vein, for, as stated in the "section 'a patent for any land claimed and located for "valuable deposits may be obtained in the following """manner.' It must also be noticed that sec. 2322, in respect to locators, gives them the exclusive right of possession and enjoyment of all the surface within "the lines of their locations, and all veins, lodes, and ledges, the tops, or apexes, of which are inside such "lines. So that a location gives to the locator some"thing more than the right to the vein which is the "occasion of the location. But without determining "what would be the rights acquired under a surface "location based upon a discovery in a tunnel, it is

enough to hold, following the plain language of the "statute, that the discovery of the vein in the tunnel, "worked according to the provisions of the statute, "gives a right to the possession of the vein to the same "length as if discovered from the surface, and that a "location on the surface is not essential to a continu"ance of that right. We do not mean to hold that such right of possession can be maintained without compliance with the provisions of the local statutes in "reference to the record of the claim, or without post"ing in some suitable place, conveniently near to the place of discovery, a proper notice of the extent of the "claim-in other words, without any practical loca"tion. For in this case notice was posted at the mouth "of the tunnel and no more suitable place can be sug"gested, and a proper notice was put on record in the "office named in the statute."1

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With this ex cathedra statement of the law there are suggested several important inquiries which remain to vex the courts and harass the miner. We will present

1 Campbell v. Ellet, 167 U. S. 118, 119, 17 Sup. Ct. Rep. 765.