The indicator., 1897-05-22


vantage to the owners of tunnels.
The court. in its opinion rendered in
the case of the Enterprise Mining
Company, appellant. against the Rico
Aspen Consolidated Mining Company
ct al. on Il writ of certiorari to the
United State Circuit Court of Appeals
for the Eighth circuit, said:
This ease involves the construction
of section 232:i of the revised statutes,
| which reads as follows: Where Il
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 lodcS within $500 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 il discovered from the sur
| face; ana locations on the line of sucn
tunnel, or veins or lodcS 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 he in
/ valid but failure to prosecute The work
on the tunnel for six months shall be
considered ms an abandonment of the
right to all undiscovered veins on the
| line of such tunnel"
a diagram is then given showing sit
uaton of the properties, together with
an explanation of the samc and Il brief
history of the case prior TO its appear
nnce in this court.
| The opinion of the court, which WIS
in favor of the defendants, WAS dcliv-
cred by Justice Brewer. and is as fol
| lows:
II will he observed that so far as the
mere location of the two claims, YES
| tai and Jumbo No. .. the former was
prior in time 10 the latter, and would.
If there were no other facts, give prior
ity of right to the ore within the limits
of the conflicting territory. The tun-
mel was. however, located some eight
or nine months before the discovery
and location of the Ncstal claim, and
the statute gives to the owners of such
tunnel the right TO ''Ill veins or lOdps
within 5000 feet from the face of such
tunnel on the line thereof. not prcvi-
ously known to exist by virtue of
this section, therefore. the right of the
defendant to this vein was prior to
that of the plaintiffs TO the mineral in
their claim. In this respect the Circuit
Court of Appeals agreed The mat
tiers now in dispute are the extent of
to adverse" the application for ap-
pclant. The right to the vein discov-
cred in the tunnel is by statute de
nlared to be TO the same extent as if
discovered from the surface"
If discovered from the surface. the
discoverer might under revised stat
utcs. section 2320. claim LOCO feet in
length along the vein or lode" The
clear import of the language. then, is
TO give to the tunnel owner discover
ing the vein in the tunnel n right to
appropriate 1 800 feet in length of that
vein. When must he indicate the par
ticular 1.5GO feet which he desires to
claim? Counsel for plaintiffs contend
that it should be done when in the first
instance 1t is first located. and that if
no speciiicailo lion 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 he en-
Tilted TO only 80 feet on either side of
the tunnel while counsel for drfrnlan mt
insist that lie need not do so until the
actual discovery of the vein in the tun-
mel We think the defendants coun-
sci are right In order To make loca-
tion there must be a discovery. nj least
that is the general rule laid down in
the statute. Section 232O provides:
But no location of mining claim
shall be made until discovery of the
vein or lode within the limits of the
claim located" The discovery in the
tunnel is like Il discovery on the sur.
face. Until one is made there is no
right to locate Il claim In respect TO the
vein. and the time to determine where
and how il shall be located arises only
upon the discovery, whether such dis
covcry he made on the surface or in
the tunnel The case of Erlnrd vs.
Boaro O13. a. S. $50 is not in point.
for there the preliminary notice, which
was made upon II discovery from the
surface. simply claimed Leo feet on
this mineral bearing lode without
further specifications as to boundaries
or direction. and it was held that was
equivalent to n claim for 100 feet in
each direction from the discovery
shaft.
II may he true. as counsel claims.
that this construction Of the statute
gives the tunnel cNaavator some adj
vantages. Surely it is not strange that
Congress deemed il wise 10 offer some
Inducements for running n tunnel in
to the side of 81 mountain. At the
same time ii placed specific limits on
the rights which the tunnel owner
could acquire. He could acquire no
veins which had heretofore been dis
covered from the surface His right
reached only to blind veins. ms they
may I've called. veins not known to OK
list. and not discovered from the sur
face before he commenced his tunnel
1t required reasonable diligence in the
prosecution of his work. II placed II
limit in length 5000, beyond which he
might not 20 in his search for veins
and acquire any rights under his tnn-
mel location. and the veins TO which he
might acquire any rights were those
which the tunnel itself crossed. such
is the import of the letter to which
counsel refer from Commissioner
Drummond. of date September %.
1872 land office report. 1877 page 60.
3 Copps land owner, 1901
II may he also noticed that in this. let
ter the commissioner affirmed the right
of location on either side of the tunnel
in these words: when Il lode is
struck or discovered for the first time
by running II tunnel. the tunnel owners
have the option of recording their
claim of 1.5O0 feet. all ON one side Of
the point of discovery or intersection,
or partly on one and partly on the 9th
or side thereof"
Ne hold, therefore. that the right to
n vein discovered in the tunnel dates
by relation back to the time of the To-
cation of the tunnel site. and also that
the right of locating the claim 10 II vein
arises from its discovery in the tunnel
and may bc exercised by locating that
claim the full length of 1,5D feet on
either side of the tunnel. or in such
proportion thereof on either side as the
locator may desire. II was well said
by the Court of Appeals. in its opinion
in this ease: "rhc striking character