Blackfoot news. (Blackfoot, Idaho) 1891-1902, 1897-06-19
MINING DEPARTMENT
VERY IMPORTANT DECIS.
The Federal Supreme Court Decides a Colorado Case
in Favor OF Tunnel Owners. Giving Them
a Great Advantage.

/, ana may be exercised by locating that
claim the full length of 1.J0O feet ON
either side of the tunnel. or In such
proportion thereof ON either side as the
locator may desire. IL was well said
by the Court OF Appeals, in its opinion
in this ease: The striking character
istic of this section OF the act Is. that
it gives the right 10 the possession OF
certain veins or lodes 10 the diiigent
owner of a tunnel before his discovery
or location of any lode or vein what
ever. contingent only upon his snhse-
quent discovery of such veins in his
tunnel. Veins or l0des discovered on
the surface or exposed by shafts from
the surface must be found before any
right TO them exists tsection = and ,.
acts OF May 10. 1872; sections 2i2O,
1924. Rev. Stat.l. but this section de-
clares that the n OF a tunnel by
simply locating and diligently prosecut-
ing it. without the discovery Of any
vein or lode whatever. shall have the
right OF possession OF all veins or lodes
within 1900 feet from the face of such
tunnel on the line thereof, not previous
~ known 10 exist. discovered In such
tunnel. 10 the same extent as IL dis
covered from the surface"
Il - AAOEI 1AAAA%A &oAAH1NN A-oF~
al Mont. $40. $3.50 the Supreme Court
OF the state observed: But has ne ithe
tunnel owner not an inchoate right in
such veins. which right i kept alive by
prosecution OF work on the tunnel ac-
cOrding 10 law This seems 10 be I'M
piled by the last clause Of the statute
that failure to prosecute the work on
the tunnel for six months shall be con-
sidered as an abandonment OF the right
to all undiscovered veins on the line
Of the tunnel" The fact that said nom
action on the. part OF the unnel claim
ant should constitute an abandonment
shows that it was the intent Of Con-
gress TO reserve such lodes from the
commencement Of the tunnel. while II
was prosecuted according 10 law" See
j also Black vs.. Sierra Nevada Con. Gin.
) Co. q Idaho. 2s6)
j The plaintiffs Trther contend that
: an act passed by the territorial legisla.
( ture Of Colorado in 1861 (Sess. Law
Colo. 1861. D. I16 Mills Ann. Stats.
sec. 3f41 WI limits the right Of the
tunnel 10 80 feet on each side Of the
I tunnel. That section reads: ANY per
: son or persons engaged In working q
( tunnel within the provisions Of this
e chapter shall be entitled to 30 feet
tAtA "a EatA AAAlAtA VII FaSAA
lode so discovered" But. il that sec
ton has not been in terms repealed By
the Legislature Of Colorado, Ii was
superseded by the legislation % Con,
e gress, as found in the Revised Stat
{ utes. tEllet vs.. Campbell, IS Colo,
n 500
e The remaining question Is whether
the failure 10 adverse the application
for q patent for the Eestal claim de.
stroyed or impaired the rights Of the
It defendants. We think not. Section:
r 1926 and 2326. Revised Statutes. con.
tain the legislation in reference to ad
d verse claims. These provisions are
& substantially that when a party make,
II his application for patent, IL no nd
verse claim Is filed within sixty day.
9 from application notice. IL shall be as
70 sumed that the applicant Is entitled
to a patent: that when an adyerss
claim is filed lit shall be upon tn,
y oath Of the person or persons making
le the same. and shall show the nature
D. boundaries and extent Of such adverse
q claims. and all proceedings shall b
4 stayed until the ~ontrOgersy shall have
81 been settled or decided BY a court 81
n competent jurisdiction or the adverse
>: claim waived. II shall be the duty 81
Alig az tiE = pbhAtA ~ p
le days after filing his claim. to com
ie mence proceedings In n court Of com
le petent Jurisdiction to determine th'
T question Of the right 81 possession ant
70 prosecute same with reasonable dill
le gence 10 a final Judgment. and failure
re to do 50 shall be a waiver Of his ad
y verse claim"
r Now, at the time the application fo
IN patent to the Eestai claim was pre-
!. scented and the proceedings had there
y on. the defendant knew Of no veil
% which word enable II TO dispute TIL
Ne right Of the owners of the yestal to
% patent. The Vestal claim. It will b.
" perceived, runs parallel to the line 0
= the tunnel and Is distant therefron
~ some 800 feet. The presumption, 0
~ course, would he that the vein raj
y lengthwise and not crosswise Of tn,
claim as located. and such n welt
>, would not, unless II radically change'
y its course, cross the line Of the tunnel
q Whether it did or not. or whethe
~ any other vein should be found in tn
" tunnel which should cross the terri
y tory Of the Vesfal, was a matter Of pur
ne speculation, and there would be n
propriety in maintaining n suit to es
y tablish defendants inchoate right +
~ delay the Vestal claimants in securing
a patent on a mere possibility whicl
might never ripen into q fact. The Oh
y vious contemplation 81 the law in re-
{. spect to these adverse proceedings /
!, that there shall be a present tangibI
- and certain right. and not a mere pos
~ sibility. or course, the owners Or tn
Vestal claim had notice, from the fac
- Of the location Of the tunnel line, D
- the possibilities which future excava
~ tions Of the tunnel might develop, an,
50 they were not preJudIced by the fail
81 ure to adverse" and as the defendan
81 could not In any suit which 1t nigh
~ institute, establish n certain advers
N right. and as litigation In the courts /
M based upon facts and not upon posi-
bilities, It seems to ms that nothint
a. was to be gained by institnting ad
verse proceedings, and. therefore, moth
,ai ing lost by a failure to do 80. Thes
a. are all the questions In the case. w
are Of opinion that the decision Of th
re- court Of appeals Is right, and 1t Is al
nir firmed.