some of these for consideration in a subsequent section.1

A discovery may be made in any ordinary tunnel not located under the tunnel laws. To complete his initiatory rights, however, the locator must in such case make a surface location the same as in cases of ordinary surface discovery. It is only when the tunnel-site has been properly located and claimed under the tunnel laws that the vein discovered in the tunnel need not be located at the surface.

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 ?-It seems to be assumed by many, if not all, of the courts that a tunnel location once perfected in accordance with the departmental regulations has the effect of withdrawing from the body of the public domain a certain superficial area, within which, so long as work in the tunnel is prosecuted with reasonable diligence, surface exploration is practically inhibited, or at least the prospector within that area locates at his peril.

We find that this question, with others incidentally involved, has been before the courts of Colorado, Montana, and Idaho, the federal courts in the eighth circuit,

1 Post, § 491.

The state of Nevada has endeavored to avoid the dangers flowing from the lack of surface-marking, and has passed an act which provides that claims upon blind veins or lodes discovered in the tunnel shall be located upon the surface and held in like manner as other lode claims (Comp. Laws of Nevada, 1900, § 229). The criticism on this class of legislation is apparent. If under the federal law a location of such veins may be made by simply posting a notice at the mouth of the tunnel, it is beyond the province of the state legislature to impose any other conditions. If any relief is to be obtained, or if it is desired, congress alone can afford it.

Brewster v. Shoemaker, 28 Colo. 176, 63 Pac. 308.

and the supreme court of the United States. Ordinarily, a decision by the latter tribunal so forecloses the question decided that further discussion is both unnecessary and unwise. However, there are still so many questions undecided arising out of tunnel locations and the location of blind veins based on discoveries in the tunnel, that we are impressed with the expediency of taking up the subject outlined in the title to this section and dealing with it from an historical or evolutionary point of view.

8 484. The Colorado rule.-The case of Corning Tunnel Co. v. Pell1 involved a controversy between the tunnel company locating a tunnel in September, 1872, and the locators of the Slide lode, located August 17, 1875.

The Slide lode was fifteen hundred feet in length, and crossed the center line of the tunnel-site nearly at right angles. The discovery shaft was near, but not on, the center line, being about fifty-five feet therefrom. The lode had not been reached or cut by the tunnel.

The tunnel-site as claimed described a parallelogram, three thousand by fifteen hundred feet. The tunnel had been worked with reasonable diligence, and had not been abandoned. The owners of the Slide lode applied for a patent, and the tunnel company adversed. The action was in support of the adverse claim and to try the title to the Slide lode.

It was contended by the tunnel claimant that the line of the tunnel" meant the entire width and length of the surveyed tunnel-site,-that is, fifteen hundred by three thousand feet; that within these limits, after the commencement of the tunnel and while it is being prosecuted with diligence, no valid location could be made of a vein or lode not appearing upon the surface.

14 Colo. 507.

The supreme court of Colorado held:

(1) That there was no law authorizing a tunnel location of any such dimensions; that the line of tunnel was the width marked by the exterior lines or sides of the tunnel;

(2) That the result contended for by the tunnel claimant forbids its adoption, unless the language clearly indicates such to have been the legislative intent. In this case, the tunnel-site location would withdraw from the exploration of prospectors over one hundred acres of mineral lands. A very limited number of tunnel locations would cover and monopolize, in most cases, an entire mining district, giving to a few tunnel-owners all its mines, not upon the condition of discovery and development, but upon the easy condition of a commencement of the work on the tunnel and its prosecution with reasonable diligence. The policy of the general government has been to prevent monopoly of its mineral lands, or its ownership in large tracts. But for the existence of this policy, there was but little or no reason for an abandonment of its system of surveys and preemptions applicable to agricultural lands, and the adoption as to its mineral lands of a system that, as to surface claims at least, limits mining locations to an inconsiderable acreage appendant to a discovered lode. The construction claimed is in contravention of this policy; nor can it be justified by the language of the section;

(3) No right of possession of a lode inures to the tunnel claimant until it is discovered in the tunnel;

(4) The Slide lode, not having been discovered in the tunnel by the tunnel proprietor, and the "location,❞— i. e. discovery,—not being on the line thereof, the tunnel proprietor had no right to the lode.

This is a clear enunciation of the rule, that the mere location of the tunnel-site does not withdraw the surface

adjacent to the tunnel line from exploration and location; that the tunnel is only a means of discovery, and that priority of discovery establishes a priority of right. Fifteen years later the same tunnel-site was again brought to the attention of the same court, in the case of Ellet v. Campbell,1 upon the following state of facts:

The tunnel claimant, on February 3, 1875, discovered in the tunnel, on the line thereof, five hundred and ninety-four feet from the face, the Bonanza lode, and located it by posting a notice at the mouth of the tunnel and recording a similar notice as described in a preceding section.2

The Bonanza lode did not appear upon the surface of the ground, and was not known to exist prior to discovery in the tunnel. It was not staked on the surface. No discovery shaft was sunk, or work done upon the surface. The annual work on the lode was regularly performed. On July 10, 1886, Campbell, the defendant, and another made a location of the J. L. Sanderson lode, which was identical with the Bonanza lode. Their location was based upon a discovery made in a "cut," two hundred feet to the east of the east line of the bore of the tunnel. At the time of marking the Sanderson location, the locators knew of the discovery theretofore made in the tunnel. The locators of the Sanderson lode applied for a patent, the tunnel claimant adversed, and hence the suit.

Upon this state of facts, the supreme court of Colorado held that having made a discovery in the tunnel, the discoverer is not bound to make another discovery and location of the lode from the surface, in order to be protected against a subsequent surface locator of the same lode.

Having determined that it was not necessary to mark

118 Colo. 510, 33 Pac. 521.

Ante, § 482.

the location on the surface, and that the manner of location heretofore described was sufficient, the appropriation of the lode having been perpetuated by continued performance of the annual work, no other conclusion could possibly have been reached by the court than the one announced.

485. The Montana rule.-At the time the cases considered by the supreme court of Montana arose, there was a state statute, which had been enacted in 1872, and which contained among others the following provisions:

"Any person or persons pre-empting any tunnel have "the exclusive right to three hundred feet on each side "from the center of said tunnel, on any and all lodes "that he or they may discover in the course of said tun"nel."

In June, 1887, the Hope mining company located the Jubilee tunnel in Deer Lodge county, Montana. In the following December, Brown located a quartz claim within three hundred feet of the line of the tunnel, basing his location upon a discovery in a tunnel, and was engaged in extracting ore therefrom when the Hope mining company sought an injunction preventing further mining operations by the quartz claimant. The ledge in controversy had not been discovered in the Jubilee tunnel, although the complaint alleged that it appeared to cross it.

The supreme court of Montana held:

(1) That a tunnel claimant upon discovering a vein or lode in his tunnel will be entitled as a matter of right to the vein or lode for fifteen hundred feet in length along its course, and to the extent of three hundred feet on each side thereof from the middle of the vein;

(2) Brown's location is valid, though liable to be divested by the subsequent discovery of the same vein