in the Hope tunnel, if such location is found to be within three hundred feet from the middle, and fifteen hundred feet from the point of, the tunnel discovery, measured along the vein. That third parties have the right to locate any veins within three hundred feet of the line of the tunnel, which is held to be the width of the sides thereof, but such locations so made are at the risk of the locators; for upon the discovery of the vein or lode in the tunnel all locations made subsequent to its commencement become invalid if they are within the distances above specified.

The court also adds the following:

"As a matter of course, veins or lodes discovered from the surface, or previously known to exist, are not "affected by the right of the tunnel claimant, which we may here remark to be most ample and sweeping." The injunction was denied.1

It is extremely difficult to ascertain precisely what the court meant by the language used in the quoted paragraph. If a discovery from the surface made prior to discovery in the tunnel, but after the perfection of the tunnel location, would take precedence over the subsequent tunnel discovery, it is difficult to understand the closing remark, that the tunnel proprietor's rights are most ample and sweeping.

Another case between the same parties, involving the same relative rights, came before the same court a few years later, wherein it appeared that Brown had applied for a patent for his location made as indicated in the previous case. The tunnel company adversed, and the action was to determine the adverse claim.

The court held, upon the showing made, that the applicant for patent ought to be restrained from prosecuting his proceedings while the tunnel proprietor is prosecuting his tunnel as required by law, and until it

1

Hope M. Co. v. Brown, 7 Mont. 550, 19 Pac. 218.

is demonstrated that such vein, or lode, will not be discovered in the tunnel, or until such tunnel rights are abandoned by failure to prosecute the tunnel as provided by law.1

It must be conceded that the views of the supreme court of Montana tend to support the doctrine that a perfected tunnel-site practically withdraws the surface to the extent of fifteen hundred feet on each side of the line of the tunnel, and that the withdrawal remains in force until it is either demonstrated that a given lode will not be cut in the tunnel or the tunnel-site is abandoned.

2486. The Idaho rule.-In the case of Back v. Sierra Nevada Cons. M. Co.2 the following state of facts appeared:

The complaint alleged in substance that Back owned the Pilgrim tunnel, located April 5, 1886. On April 6, 1886, defendant's grantors entered upon the line of the tunnel at a point where post number nine on said line was planted. They had full knowledge of the existence of the post and the location of the tunnel. They commenced to prospect for minerals, and at a depth of twelve feet discovered a ledge.

This ledge was blind, and would have been intersected by the tunnel continued on the location line thereof. Defendant's grantors located and recorded a mining claim called the Sierra Nevada, and afterwards made application for patent. Back filed an adverse claim, and the suit was brought to determine the rights of the parties. A demurrer to the complaint was sustained. Judgment passed for defendant on failure to answer. The appeal was prosecuted from the judgment.

1

1 Hope M. Co. v. Brown, 11 Mont. 370, 28 Pac. 732.

2 Idaho, 386, 17 Pac. 83.

Lindley on M.-53

It was held by the supreme court of Idaho, reversing the judgment:

(1) That a tunnel location is a "mining claim," and may protect its rights by adversing application for patent to ledges asserted to have been located on the line of said tunnel subsequent to the tunnel location;

(2) It is evident that, in enacting section twenty-three hundred and twenty-three of the Revised Statutes, congress intended to withdraw from exploration for lodes not appearing upon the surface so much of the public domain as lay upon the line of the tunnel;

(3) The tunnel claimant has a right to the possession, for prospecting purposes, of the area in dispute, and to show that the respondent's location was upon the line of his tunnel.

No attempt is made to define what is meant by the line of the tunnel.

487. Judge Hallett's views.-The tunnel law came before Judge Hallett in the case of Rico-Aspen Cons. M. Co. v. Enterprise M. Co.1 His decision is accompanied by a diagram, which we herewith reproduce.

153 Fed. 321.

The facts were substantially as follows:

The Rico-Aspen company asserted title to three mining claims, the Vestal, located in 1879; Contention, January 1, 1888; and Compromise, November 18, 1889. The Hiawatha was not necessarily involved in the litigation, although it may be noted that its location was junior in point of time to the inception of the tunnel right.

The Enterprise mining company perfected its location of the Group tunnel in July, 1887; and in June, 1892, discovered and located the Jumbo II claim, delineating it upon the surface as indicated on the diagram.

Said Judge Hallett, after quoting the language of section twenty-three hundred and twenty-three of the Revised Statutes:

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"Clearly enough, this is a grant of lodes and veins on "the line of the tunnel, and the only difficulty is in "ascertaining the extent of the grant. The supreme "court of this state (referring to Corning Tunnel Co. "v. Pell) interprets the act as giving only so much of "such veins and lodes as may be in the tunnel itself. "But this seems to reduce the grant to a point of insig"nificance which deprives the act of all force and meaning. Certainly, no one would be at the trouble "and expense of driving a tunnel through a mountain "for such small segments of lodes or veins as may be "in the bore of the tunnel. On the other hand, respond"ents contend that the grant is of the length of a sur"face location in any direction from the line of the "tunnel, and as stated, almost the entire length of the "Jumbo II is in a southwesterly direction from that "line. Under this construction, the location of a tunnel, followed by some lazy perfunctory work twice in "the year, will have the effect to withdraw from the "public domain a tract three thousand feet square, or "something more than a half section of land; and this "in the face of the earlier declaration of the statute, "that no location of a mining claim shall be made "until the discovery of the vein, or lode, within the

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""limits of the claim located.' This view is so far "inconsistent with the general policy of the law which "forbids the granting of large areas of valuable min"eral lands to one person or company that it seems "impossible to accept it."

The conclusions reached by Judge Hallett may be thus summed up:

(1) The length of a location made upon a lode discovered in a tunnel is not fixed by the act of congress, but is left to local regulations;

(2) Without local regulation as to length of a claim founded on a discovery in a tunnel, nothing would pass but the line of the tunnel itself;

(3) The Colorado statute of 1861 1 is in force in Colorado, and secures to the tunnel locator two hundred and fifty feet each way from the tunnel, on all lodes discovered within the tunnel. As to the two hundred and fifty feet, the tunnel proprietor becomes the owner of the ledge, its location dating back to the inception of the tunnel right;

(4) As to the Vestal, owing to the priority of its location, decree passed for complainant. As to the Compromise and Contention, their location should, to the extent sanctioned by the state law, yield to the rights of the Jumbo II, which related back to the inception of the tunnel right.

2488. The doctrine announced by the circuit court of appeals, eighth circuit.-An appeal was taken from Judge Hallett's decree in the Rico-Aspen-Enterprise case, and the appellate court declined to adopt his views.2 When the case was before Judge Hallett, the facts as they are recited in the opinion fixed 1879 as the date of the Vestal location, prior in point of time to the

'Mills' Annot. Stats., § 3141.

Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. 201.