cover cases of lode location after issuance of the placer patent. The Statute is not operative on claims patented prior to the date of its passage, May 10, 1872; such earlier patented claims include the right to the known lodes.

A lode, to come within the scope of this law, must be known at date of application for patent upon the placer claim. Lodes discovered afterward are the property of the placer patentee, even in the case of a lode that, without showing or being exposed on the placer claim, was being worked on an adjoining claim and later was followed on its strike into the placer claim after the application for placer patent. A lode that is considered valueless or that has been abandoned as worthless, is not such a known lode. It must have a value that will justify exploration. It must approach the conditions whereby a lode location defeats an agricultural entry. A valid lode location made prior to a conflicting placer location takes its full area. A lode location made under the Statute in question after the placer location, is entitled to fifty feet in width along the vein -twenty-five feet on each side. When patent is asked by the placer claimant, the proper procedure for the lode claimant is to secure exclusion of his lode strip or adverse the patent to that extent. If successful, he will be enabled to secure his lode patent in the usual way. If this precaution is not taken, or in the case of a lode location made after placer patent, when the lode claimant asks for his patent, hearing will be held to determine by the facts presented, if the lode is a known lode as contemplated by the Statute, and the Land Department has the right in consequence to grant such a patent.

A mooted question is, has the placer claimant, before making application for placer patent, the possessory right to and the refusal of all known lodes without having located them as such? One conclusion of the Statute is that he has. A court decision says that a stranger cannot enter within the lines of a placer location to prospect for lodes, and if he does so enter and discovers and locates a lode, it is a claim initiated by trespass and is void. But such a discovered lode now becomes a known lode, just as any lode uncovered in any way or by anyone up to application for patent. The placer claimant or one to whom

he has given his consent may locate a lode. The Land Department has taken the stand that a placer locator has not the possessory right to the lodes within his location, so as to prevent the discovery and location of such lodes by others. This is the proper view, for under that of the court decision referred to, all the veins as well as the placer mineral in a 160-acre placer location could be held by doing $100 worth of work annually. Undoubtedly, if a case came into court, the good faith of the placer claimant would be the greatest factor in determining how far a stranger might go in clandestinely prospecting for and locating the lodes within a placer location. The placer locator may perhaps strengthen his right of possession to the known lodes by inserting in his placer location notice, the proviso, 'including the right to locate and patent all known lodes.' But the proper plan is to at once locate all desired lodes. Lodes within placers should be located in the usual way, with the exception that fifty feet is the maximum width.

CHAPTER XV

Tunnel Site Location

R. S., Sec. 2323: Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line of such tunnel of veins or lodes not appearing on 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, but failure to prosecute the work on the tunnel for six months, shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel.

ACT OF CONGRESS: That section 2324 of the Revised Statutes [requiring annual labor] be, and the same is hereby amended, so that where a person or company has or may run a tunnel for the purpose of developing a lode or lodes, owned by said person or company, the money so expended in said tunnel shall be taken and considered as expended on said lode or lodes, whether located prior to or since the passage of said Act; and such person or company shall not be required to perform work on the surface of said lode or lodes in order to hold the same as required by said Act.

"The effect of section 2323, Revised Statutes, is to give the proprietors of a mining tunnel run in good faith, the possessory right to 1500 ft. of any blind lodes cut, discovered, or intersected by such tunnel, which were not previously known to exist within 3000 ft. from the face or point of commencement of such tunnel, and to prohibit other parties, after the commencement of the tunnel, from prospecting for and making locations of lodes on the line thereof and within said distance of 3000 ft., unless

such lodes appear upon the surface or were previously known to exist. The term 'face' as used in said section, is construed and held 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 3000 ft. are to be counted, upon which prospecting is prohibited as aforesaid.

"To avail themselves of the benefits of this provision of law, the proprietors of a mining tunnel will be required, at the time they enter cover as aforesaid, to give proper notice of their tunnel location by erecting a substantial post, board, or monument at the face or point of commencement thereof, upon which should be posted a good and sufficient notice, giving the names of the parties or company claiming the tunnel right; the actual or proposed course or direction of the tunnel, the height and width thereof, and the course and distance from such face or point of commencement to some permanent well known objects in the vicinity, by which to fix and determine the locus in manner heretofore set forth applicable to locations of veins or lodes, and at the time of posting such notice they shall, in order that miners or prospectors may be enabled to determine whether or not they are within the lines of the tunnel, establish the boundary lines thereof, by stakes or monuments placed along such lines at proper intervals, to the terminus of the 3000 ft. 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, while work on the tunnel is being prosecuted with reasonable diligence. A full and correct copy of such notice of location defining the tunnel claim must be filed for record with the mining recorder of the district, to which notice must be attached the sworn statement or declaration of the owners, claimants, or projectors of such tunnel, setting forth the facts in the case; stating the amount expended by themselves and their predecessors in interest in prosecuting work thereon; the extent of the work performed, and that it is bona fide their intention to prosecute work on the tunnel so located and described with reasonable diligence for the development of a vein or lode, or for the discovery of mines, or both,

as the case may be. This notice of location must be duly recorded, and with the said sworn statement attached, kept on the recorder's files for future reference." (Land Office Regulations, 16, 17, 18.)

A tunnel-site location is not strictly a mining claim, but gives an inchoate right which may be developed to patent blind and unknown lodes cut by the tunnel. The rights and requirements

are succinctly stated in the Statutes and regulations above. The locator, on commencing work, acquires the right to all veins which may be cut by the tunnel within 3000 ft. of its portal; provided, these veins do not exist on the surface, but are blind veins whose existence has theretofore been unknown. The right entitles him to 1500 ft. of the strike of each vein cut, all on one side of the tunnel or divided as he may desire, and from the apex to the lowest depth, just as if located on the surface. He acquires no specific rights by this location over any prior locations, no right to any blind lodes apexing in their ground which he may cut, or right-of-way through their ground. All locations made subsequent to the commencement of work in the tunnel are made on the peril of losing any blind veins apexing in them, which the tunnel locator may be entitled to through cutting in his tunnel, and which are subject to his right-of-way.

Tunnel rights are dependent upon the work being prosecuted with "reasonable diligence." What is reasonable diligence has not been passed upon. Failure to prosecute work on the tunnel for six months loses the right to all blind veins which may be cut later, but not to the tunnel, which may be continued. As the claimant is allowed 1500 ft. in any direction of all blind veins cut throughout the 3000 ft. of his tunnel, he practically commands an area in the shape of a race-track, 6000 ft. long and 3000 ft. wide, as shown in Fig. 18. Some have considered that the claimant's rights should be confined to 1500 ft. on each side of the tunnel, making a square 3000 by 3000 ft., but there is no direct reason why he should not receive his 1500 ft. of lode, even if found at one end of the tunnel and striking outside of the square. The Land Office regulation, that the boundary lines of the tunnel should be staked, is held to mean that the length and width of the proposed tunnel should be exactly