location of the Group tunnel. For this reason it received but little attention, the reasoning of the judge being particularly addressed to the Contention and Compromise, which were junior in point of time to the tunnel location, although senior with reference to the tunnel discovery.

The case as presented to the appellate court seems to be somewhat different, the controversy apparently centering within the conflict area between the Vestal and Jumbo II, and the record seems to give to the former a date of location, junior, in point of time, to the inception of the tunnel right.

The principles involved, however, are, of course, the

same.

The questions involved are presented by the appellate court in the following form:

(1) Are the owners of a valid tunnel mining claim under section twenty-three hundred and twenty-three of the Revised Statutes, who have discovered a blind vein in their tunnel and have duly located and claimed it, entitled, as against the owners of a lode mining claim located from the surface after the location of the tunnelsite, but before the discovery of the vein in the tunnel, to the possession of the vein or lode thus discovered, when such vein was not known to exist prior to the location of the tunnel, but was first discovered in another lode mining claim before its discovery in the tunnel?

(2) If the owners of a tunnel mining claim are entitled to the possession of any portion of such a vein, to what extent are they entitled to it?

Another question was also presented and decided which refers to the effect of a patent issued upon the junior surface location where the tunnel claimant failed to adverse. The discussion of this branch of the case will be deferred until we reach, in another portion of

the work, the subject of patent proceedings and the legal effect of a patent when issued.

As preliminary to a discussion of the principles involved, the court announced as follows:

"There is no tenable middle ground under this sec"tion between a holding that the diligent owner of a "tunnel is entitled to the possession of all blind veins "he discovers in his tunnel to the same extent along "the veins as if he had discovered them at the surface, "and a holding that by the discoveries and locations "of others, subsequent to the commencement of his "tunnel and before it reaches the veins at all, he may be deprived of every portion of them, except "possibly the small segments within the bore of the "tunnel."

66

The conclusions reached by the court may be thus stated:

(1) The location of a tunnel-site, followed by the prosecution of work thereon with reasonable diligence, gives to the tunnel locator an inchoate right to all hitherto unknown or undiscovered veins which cross the line of the tunnel and are discoverable therein;

(2) That upon discovery in the tunnel, the tunnel locator will be entitled to fifteen hundred feet along the length of the vein, computed in either direction from his tunnel discovery, and that this right cannot be impaired by a discovery and location from the surface, junior in point of time, to the inception of the tunnel right;

(3) The state statute of Colorado, fixing the limit in length at two hundred and fifty feet on each side of the tunnel line, is superseded by the act of congress;

(4) In determining what length on the vein is allowed to the tunnel discoverer, the court resorts to section twenty-three hundred and twenty of the Revised Statutes, but decides that such section performs no other

function in determining the rights of the tunnel dis

coverers.

The court also holds that the inchoate right given to the tunnel locator only extends to veins that strike the line of the tunnel and are discovered in the tunnel. Others may discover and hold all veins within fifteen hundred feet of the line of the tunnel that do not strike or cross its lines, and all that do strike it that are not discovered in it.

The reasoning applied by the court which, in its judgment, justified the results reached may be thus epitomized:

(A) Section twenty-three hundred and twenty-three construes itself, and it is unnecessary to resort to public policy in aid of its interpretation;

(B) If the question of public policy is to be resorted to, the rights guaranteed to the tunnel locators are in accord with such policy, which is to encourage the discovery and development of the mineral resources of the country;

(c) The work of driving tunnels thousands of feet into the side of a mountain for the purpose of discovering a vein or lode that is not known to exist at all is an extremely hazardous and expensive undertaking; that this is common knowledge, and congress must be taken to have had this knowledge when they enacted the law. They must have known that such a hazardous enterprise was not likely to be undertaken unless rewards commensurate with the risk and expense were offered.

It is to be added, by way of a side-light on this decision, that the discovery on which the Vestal location. was based was not upon the vein which was discovered in the tunnel. The right of the tunnel locator to the vein discovered in the tunnel, in so far as it was found

within the Vestal location, was also defended on the ground that it was a cross-lode, and that under the rule then recognized by the state courts of last resort in Colorado, which we will discuss fully in a subsequent chapter, owners of cross-lodes might follow their vein into, and underneath, even a prior location.

1

489. Tunnel locations before the supreme court of the United States.-The case of Glacier Mountain Silver Mining Company v. Willis was an action of ejectment, wherein the plaintiff sought to recover possession of the Silver Gate tunnel claim, located in 1865, alleged to be five thousand feet long and five hundred feet wide, described by metes and bounds, which was alleged to embrace many valuable lodes or veins which had been discovered, worked, and mined by the plaintiff and his grantors. Possession and payment of taxes for a period in excess of the statute of limitations prescribed by the laws of Colorado were averred, together with a general allegation of ownership of the tunnel claim described. The ouster alleged was (1) an entry by defendants upon the premises and into the tunnel, claiming said tunnel as the War Eagle, and (2) the location by defendants of the Tempest lode claim across the tunnel, claiming a discovery in the tunnel of such lode.

A special demurrer was interposed upon the ground, among others, that the claim of plaintiff to a strip of ground five thousand feet in length by five hundred feet in width as a tunnel-site is unwarranted and unprecedented, and was not, at the date of said pretended location, nor at any subsequent time, authorized by any local, state, or congressional law.

The court below sustained the demurrer. The su

1127 U. S. 471, 8 Sup. Ct. Rep. 1214.

preme court of the United States, in reversing the judgment, held:

(1) That the claim for five thousand feet in length was void only as to the excess over three thousand feet;

(2) The tunnel location having been made prior to the passage of the act of May 10, 1872, the rights flowing therefrom are to be determined under the local rules and customs in force at the time the location was made.

It is manifest that this decision sheds no light upon the subject. We refer to it for the reason that in several of the decisions heretofore cited it was stated that the conclusions there reached were not opposed to the doctrine of the Glacier Mountain-Willis case. This is quite true, for the simple reason that the questions which we are now considering were not there involved, discussed, or decided. But they were subsequently involved and decided by the supreme court of the United States in the case of Enterprise M. Co. v. Rico-Aspen M. Co.,1 and the doctrine finally settled to the following effect, as stated in the syllabus to the opinion:

"The clear import of the language of Rev. Stats., sec. "2320, is to give to a tunnel-owner discovering a vein "in the tunnel a right to appropriate fifteen hundred "feet in length on that vein; which right arises upon "the discovery of the vein in the tunnel; dates by rela"tion back to the time of the location of the tunnel-site; may be exercised by locating the 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; and is not destroyed or impaired by the "failure of the owner of the tunnel to adverse a pre"vious application for a surface patent before the dis66 covery of the vein."

% 490. Opinions of the land department. We note the following views expressed by the land depart

ment:

1167 U. S. 108, 17 Sup. Ct. Rep. 762.