In nearly all the mining States, on account of the fact that no provisions were made by Congress, statutes have been passed on the subjects of marking location, recording, etc., of mining claims. These statutes should be carefully observed within their respective jurisdictions. When such statutes attempt, however, as some of them do, to fix the size of a tunnel claim, they are probably void, being in conflict with the United States law on this point."

The question as to the size of a tunnel location, or the area that may be claimed in a tunnel location notice, is one as to which there is still confusion and a difference of opinion among mining lawyers. Sections 16, 17 and 18 of the Land Office Regulations in regard to tunnel locations seem to partially conflict with the decisions of the Supreme Court in the case of Enterprise, etc., Co. vs. Rico, etc., Co. quoted above. The regulations state "The effect of section 2323 Revised Statutes is . . 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 three thousand feet . . . But the Supreme Court, in the above case, expressly held that the tunnel owners could take a vein to the length of 1500 feet (located as they pleased with reference to amount on either side. of the tunnel), even though such vein extended under the Vestal mining claim which was not located on or near the line of such tunnel. Section 17 of said regulations prescribes the notice to be posted at the face of the tunnel, and then proceeds to require that the tunnel locator "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 stokes or monuments placed along such lines at proper intervals to the terminus of the three thousand feet from the face." What lines and where located? Are the lines meant those vertically above each side of the bore of tunnel? If not, what is their location with reference to the tunnel? The Regulations apparently evade these all-important questions, perhaps on account of the indefiniteness of said section 2323.

Under the decisions of the Supreme Court there can be no doubt that the tunnel locator has the right to claim 1500 ft. of any previously undiscovered blind vein that is intersected by

4 Snyder on Mines, sec. 296.

40 Given in Appendix.

4b Italics as in the official copy of the Rules and Regulations.

the line of the tunnel, though he cannot claim 1500 ft. in both directions on any one vein. If, however, the tunnel locator should mark out the boundaries of his location only 750 ft. on each side of the line of his tunnel, he would be limited in his claim on any blind vein discovered therein to 750 ft. on each side of the tunnel. If it is desired to avoid being limited thus, probably the safest plan in laying out tunnel locations, in view of the confused and evasive Land Office Rules and Regulations, is to mark out the line and width of the projected tunnel bore and also the sides of a parallelogram 3000 ft. long and 1500 ft. on each side of the line of the tunnel, making the proper statement as to width claimed on each side of tunnel in the location notice.c The only thing that ought to be necessary in relation to a tunnel location should be to erect a proper monument, with notice thereon, at the place of commencement of the tunnel, and then establish the proposed direction and length of the tunnel by proper monuments along the center line thereof. This would give other prospectors all necessary information as to the area within which they would prospect, after the location of the tunnel, at their peril of having any blind vein in their claim afterward taken from them by being discovered in the tunnel.

A location 3000 ft. square will not comprise all the veins to which the tunnel constructor has a right, under the above quoted decision of the Supreme Court, as will be readily apparent by an inspection of the subjoined diagram (Fig. 88). As the diagram further shows, it is also possible for a location only 750 ft. on each side of the vein to contain more of a blind vein than the tunnel owner is allowed to locate. The extreme possibilities of a tunnel locator's rights, under the decisions, would be comprised within a parallelogram 3000 ft. on each side and, in addition, semicircular areas at both ends of such parallelogram whose radii are 1500 ft., provided always that the vein is intersected by the tunnel within 3000 ft. of the face thereof.

On the other hand, the rights of the tunnel maker on veins

4C "Logically, the marking of a tunnel location should be effected by marking the exterior boundaries of the parallelogram, within the area of which prospecting is not permitted or, rather, permitted at the peril of the prospector. As a matter of caution, the line and width of the projected tunnel bore, as well as the exterior boundaries of the parallelogram, should be marked at the surface." Lindley on Mines, 2d edition, sec. 475. But if the end lines (those crossing the line of the tunnel) should be marked out, it would probably estop the tunnel owner from claiming some veins that the Supreme Court's decision gives him a right to, even if the side lines are placed 1500 ft. from the line of the tunnel, as will be explained farther on.

intersected at acute angles might terminate much short of such boundaries. Consequently it is submitted that the only logical procedure, in the absence of any statutory requirements otherwise, is to mark the point of commencement and the proposed line of the tunnel by proper monuments, as suggested above, and not attempt any marking of exterior boundaries, for these do not have any fixed or definite relations to rights on veins

Face of Tunnel

Line of Intersection of Tunnel Level and Surface of Mountain

D

Vein

-1500 ft.

FIG. 88. Hypothetical tunnel location. On the vein z-w at right angles to the tunnel, a claim can be located extending either to the line A-B or to the line D-C. But, under the decisions of the Supreme Court, the tunnel constructor would have rights also to 1500 ft. on veins crossing the tunnel at acute angles. His rights on such veins as v-p or x-y would, therefore, extend outside of the parallelogram A-B-C-D, even though each side of this is 3000 ft.; while as to the veins a-r and s-t, the tunnel rights would terminate considerably within such boundaries. In the case of the vein s-t the tunnel rights would terminate short of a line 750 ft. from the tunnel.

discovered in the tunnel unless it might be to narrow the tunnel locator's rights to less than 1500 ft. on an intersected vein in case such exterior boundaries are placed less than 1500 ft. from the line of the tunnel.

Whether it would be advisable, however, to attempt to make a tunnel location by such marking only in the present muddled condition of the Land Office Rules referring to tunnels, is doubt

ful. If it is desired to save all rights to all possible veins it would perhaps be well to mark the line of the tunnel and also the side lines of the exterior boundaries at such distance, not exceeding 1500 ft. from the line of the tunnel, as may be desired and parallel therewith, and in the location notice claim the right to locate 1500 ft. length of vein in any direction from the intersection of the tunnel and any vein discovered therein or any part of said length of vein on one side and the remainder thereof on the other side of such intersection. The establishment of such side lines parallel with the tunnel would not (if 1500 ft. therefrom) narrow the tunnel rights any in those directions, and if no end lines were otherwise marked out there would be no estoppel to claim 1500 ft. or less in any direction on a vein intersected at an acute angle near either end of the tunnel, even though a part of the portion located of such vein extended beyond an imaginary end line.

In some of the early litigation under the tunnel provisions it was contended that the location of a claim made on a vein, discovered in a tunnel, must be marked on the surface in the same way that a location is marked on a vein that outcrops at the surface. However, this would be almost impossible, for, if the vein is discovered at some, perhaps a great, depth beneath the surface, it would be impossible without extensive exploration to mark out a location on the surface which would correctly include the vein, or the apex thereof, in the depths. This question has been before the Supreme Court in the case of Ellet vs. Campbell, 167 U. S., 116, in which it is decided that it is only necessary to post a notice of the location and extent of the claim at the mouth of the tunnel, and that it is not necessary to attempt any marking whatever of the claim on the surface.5

Rule. If a blind vein is discovered in a tunnel, the owner of the tunnel can claim 1500 ft. of such vein, located as he pleases with reference to the tunnel, provided that the intersection of the vein and tunnel is within such claim. Such claim need not be marked off on the surface above. It is only necessary to post at the mouth of the tunnel a notice as to the position and extent of the claim. There is no requirement in the United States Statutes regarding the marking of the original tunnel location itself on the surface; but the requirements of local statutes in this regard must

5 Ellet vs. Campbell, 18 Colo., 510, 33 Pac., 521.

be observed. A tunnel has no right of way through a claim located before such tunnel was begun, nor any rights to blind veins found in such prior claim."

In some of the States provisions are made by statute for obtaining right of way for mining as well as other purposes by the exercise of the right of eminent domain. Whether under these provisions an exploratory tunnel could condemn a right of way through the subsurface of a senior mining claim does not appear to be a settled question; but the probabilities are that in the mining States that mining would be considered such a "public use" that it would be allowed.

The phrase "line of the tunnel" used in the statute has given rise to doubts as to its exact meaning. Although not explicitly defined by it, the Supreme Court seems to refer thereto as at least not wider than the bore of the tunnel.7

The phrase "face of the tunnel" used in the statute means the first working face of the tunnel, the place where it first enters cover and passes underneath the surface. It is from this point that the 3000 ft. in length that the tunnel digger is allowed, is to be measured.

A tunnel is not a mining claim. It is only a means of exploration of the subsurface. The owner never receives a patent for it, and no discovery of mineral is essential to create a tunnel right or to maintain possession of it. The statute only calls for adverse proceedings where one mineral claimant contests the right of another mineral claimant. Therefore it is not necessary for the owner of a tunnel to institute adverse proceeding whenever a patent application is made for any ground in which he may possibly have rights to blind lodes or veins by discovering the same in his tunnel. His rights to any veins are preserved to him without adverse proceedings."

OVERLAPPING CLAIMS

The subject of overlapping claims, the question when the lines of a junior claim may be laid over the lines of a senior claim in

6 Calhoun, etc., Co. vs. Ajax, etc., Co., 182 U. S., 499.

7 Enterprise, etc., Co. vs. Rico-Aspen, etc., Co., 167 U. S., 108; Glacier, etc., Co. vs. Willis, 127

U. S., 471.

8 Land Office, General Circular Instructions, Dec. 18, 1903, sec. 16, p. 28; Copp, "Mineral

Lands," pp. 35-36.

Creede, etc., M. Co. vs. Uintah, etc., M. Co., 196 U. S., 337.