claim? If so, such rights would be indefinite in extent, as such a cross vein would never intersect the end lines of the claim or any lines parallel thereto. Clearly this cannot be the law; and I think the only way out of the dilemma is to say that the miner cannot go beyond vertical planes through his boundaries on such a cross vein.

This question is discussed in Lindley on Mines, sec. 594, who concludes:

"it is impossible to conceive upon what principle any extralateral right could be granted on the cross or secondary vein, without establishing two sets of end-line planes, which, as we have heretofore seen, is not permissible."

XV

Tunnels and rights to veins; area in which locations may be made on veins discovered in tunnel; overlapping claims; prima facie common-law rights to all mineral beneath surface.

T

TUNNELS AND RIGHTS TO VEINS

HERE is one important exception to the general rule that all the mineral found within the boundary of a claim belongs to the owner of such claim, except that in the dips of veins which apex in some other claim. This exception arises from the rights given by statute to tunnels. By section 4 of the Act of 1872, Revised Statutes, sec. 2323, the following provisions are made:

"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 3000 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 the 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 a 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 the tunnel." Under this provision considerable litigation has already arisen, and although a number of resulting questions have been passed upon by the Supreme Court there still remain some which have not, and these must be regarded as not definitely settled.

When a vein is discovered in a tunnel claim it has the same extralateral and other rights as a vein located from the surface. Under this section of the statute there has been much doubt as to the rights conferred when these are considered in connection with the other sections of the mining law, and on account of such doubtful points considerable litigation has occurred by which most of the uncertainties have been cleared up.

The fundamental point in this class of locations is that tunnels

only give rights where three conditions coexist: (1) Blind lodes, that is, such lodes as do not reach the surface, and are not within boundaries of a location made previous to the tunnel location, (2) Such blind veins must not be known to exist at the time the tunnel was started. (3) Such blind veins must be discovered or intersected by the tunnel within 3000 ft. from the face on the line thereof while the same is being prosecuted with reasonable diligence.

But a number of other exceedingly important questions were left open to doubt by the statute; e.g., (1) Extent of claim and how located on the vein discovered in the tunnel? (2) How should a tunnel location be marked and recorded? (3) How are claims on veins discovered in the tunnel marked on the surface?

On the first question, as to the extent of the claim and how located, the first decision was by a Colorado court, to the effect that, in the absence of regulation by local statutes, only the actual diameter of the tunnel passed.1

This question, however, has been settled by the Supreme Court in the case of Enterprise, etc., Co. vs. Rico, etc., Co. 167 U. S., 108, in which the court decides that the above section of the statute gives the owner of the tunnel all blind veins discovered in the tunnel, if the same are not contained within the boundaries of a claim located prior to the commencement of the tunnel, to the extent of 1500 ft. taken in whatever direction the owner of the tunnel may wish, so that the area in which veins may be held by tunnel rights as against subsequent surface locators is 3000 ft. in length and 1500 ft. on each side of the line of the tunnel.2

The situation of the claims in this case is shown in Fig. 86. The Group tunnel was located first, July 25, 1887, the Vestal lode mining claim was based on a discovery made March 23, 1888, and located April 1, 1888. The Vestal owners applied for a patent in 1890. No adverse proceedings were instituted by the tunnel owners, and a patent issued to the Vestal owners for their ground Feb. 6, 1892. On June 25, 1892, a vein was discovered in the Group tunnel 1920 ft. from the portal, at point marked "Discovery." The tunnel owners immediately caused the Jumbo. No. 2 location to be marked on the surface and the certificate

321.

1 Corning Tunnel, etc., Co. vs. Pell, 4 Colo., 507; Rico, etc., Co. vs. Enterprise, etc., Co., 53 Fed.,

2 Ellet vs. Campbell, 18 Colo., 510; Enterprise, etc., Co. vs. Rico, etc., Co., 66 Fed., 200; Hope Min. Co. vs. Brown, 7 Mont., 550.

was duly recorded, claiming 54 ft. northeasterly and 1446 ft. northwesterly.

FIG. 86.

Plat of the claims and tunnel in Enterprise, etc., Co. vs. Rico, etc., Co., from the decision.

From pt II, 22d Ann., U. S. G. S.

"The right to this vein discovered in the tunnel is by the statute declared to be 'to the same extent as if discovered from the surface.' If discovered from the surface, the discoverer might, under Revised Statutes, sec. 2320, claim 'one thousand five hundred feet in length along the vein or lode.' The clear import of the language then is to give to the tunnel owner, discovering a vein

in the tunnel, a right to appropriate fifteen hundred feet in length of that vein. When must he indicate the particular fifteen hundred feet which he desires to claim? Counsel for plaintiffs contend that it should be done when in the first instance the tunnel is located, and that if no specification is then made the line of the tunnel is to be taken as dividing the extent of the claim to the vein, so that the tunnel owner would be entitled to only 750 feet on either side of the tunnel; while counsel for defendant insist that he need not do so until the actual discovery of the vein in the tunnel. We think the defendant's counsel are right. In order to make a location there must be a discovery; at least, that is the general rule laid down in the statute. Section 2320 provides: 'But no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.' The discovery in the tunnel is like a discovery on the surface. Until one is made there is no right to locate a claim in respect to the vein, and the time to determine where and how it shall be located arises only upon the discovery whether such discovery be made on the surface or in the tunnel. . . . It may be true, as counsel claim, that this construction of the statute gives the tunnel excavator some advantages. Surely it is not strange that Congress deemed it wise to offer some inducements for running a tunnel into the side of a mountain. . . .

"We hold, therefore, that the right to a vein discovered in the tunnel dates by relation back to the time of the location of the tunnel site, and also that the right of locating the claim to the vein arises upon its discovery in the tunnel, and may be exercised by locating that claim the full length of 1500 feet on either side of the tunnel, or in such proportion thereof on either side as the locator may desire."

Consequently, the practical effect of a tunnel location is to withdraw from location by other parties all blind veins or ledges. which may be crossed by the line of such tunnel within a rectangle 3000 feet on each side, and possibly additional areas at each end as explained below.

There is no requirement in the United States statutes as to the manner of locating or marking and recording a tunnel claim. If there are State or district rules on the subject these must be obeyed. In the absence of such rules,

"The general custom, which is almost universal, governing their location must prevail. This, briefly stated, is similar in all respects to the acts required to locate a lode or vein, namely, the posting of a notice on the claim and recording a copy thereof where recording is made necessary. This notice should contain a description of the face or mouth of the tunnel with reference to some natural object or permanent monument, together with a general description of the course of the proposed tunnel and the purpose for which it is located." 3

3 Snyder on Mines, sec. 295; Circular of Land Office, Dec. 18, 1903, par. 16, p. 28. See also the Land Office Rules and Regulations as to tunnels in Appendix.