The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-05-14

litigation in Colorado, as it makes E
radical change in the rule that ha:
heretofore been followed regarding
veins that are disclosed in regularly
! located tunnel sites, giving the tun-
/ nels the right to 1900 feet of the course
of the vein instead of $50 feet on eacf
side of the line of the tunnel. The lat
ter is the state law that has been gen
orally observed.
The history of the case is, briefly. a:
| follows: Ten years ago Charles New
man, now of Durango, located the
/ Group tunnel site on Newman hill
! Rico, and for several years prosecuted
work on the tunnel. While he was a.
work on the tunnel the Vestal claim
was located by A. E Arens, running
parallel to and 223 feet distant from
the tunnel line. The claim was located
on vein running parallel with the
side lines of the Vestal claim, which
vein does not enter into the dispute
just decided. The claim was subse-
| quently patented, no opposition being
made TO the issuance of patent by Mr.
Newman, as at that time the tunnel
had not reached a point within sew
eral hundred feet of the nearest ap-
proach to the Vestal
In 1890 the Group tunnel site was
sold to the Enterprise Mining company
and two years later a vein was cut in
the tunnel and drifting on the vein dis
closed the fact that it crossed the YES
tai claim, which had then passed into
the possession of the Rico-Aspen COM
pany. This vein was in the Jumbo No.
claim of the Rico-Aspen, and the
Enterprise company extracted a large
amount of ore from the vein in the
Vestal ground.
NET UNDERGROUND.
In the meantime the Rieo-Aspen
was sinking a shaft on tie Vestal and
drifting toward the ve&al in dispute.
The result was a conflict of interests
emphasized by giant powder fumes
and all the other means usually en-
ployed in contests of this character
underground.
The Rico-Aspen brought suit and Sc
cured an injunction preventing the En-
terprise from working in the Vestal
ground. A counter injunction was OBJ
tanned by the Enterprise company,
preventing the Rico-Aspen from re-
moving ore from the disputed terri
tory. The hearing in the circuit court
before Judge Hallett resulted in a de-
cree giving the Rico-Aspen company
all the ore of the Jumbo No. ?, lying
within the Vestal lines. reasserting the
law of the state. which gives the tun-
mel site but $50 feet of any vein dis
covered on each side of the line.
The Enterprise appealed this decision
TO the United States court of appeals,
and after a long and exhaustive argu-
ment the opinion of the court was rem
dered reversing the decision of the
lower court. The position of the En-
terprise company was that it was en-
titled to 1,500 feet along the course of
any blind vein that might be discov-
cred in a tunnel site when the exist
ence of such a vein was not known
prior to its discovery in the tunnel
and ii was contended that the exist
ence of the vein traversing the Jumbo
No 2 claim at the time it was cut in
the Enterprise tunnel was unknown.
These contentious of the Enterpris.
company were fully sustained by the
decision of the court of appeals.
POINTS OF THE DECISION.
The main features of the decision
are as follows:
The right of locator of a tunnel site
to the veins discovered in prosecuting
the work on the tunnel commences
from the date of his location and COM
mencement of the tunnel, the law CIV
ing him the right to every blind vein
found within 5000 feet from the face
of the tunnel that was not known to
exist at the time of the commencement
of the tunnel. This right depends upon
the diligence with which the work on
the tunnel is prosecuted.
The discovery and location of a vein
upon the surface subsequent to the To-
cation Of and commencement of work
upon the tunnel does not deprive the
owner OF the tunnel claim of his right
to such vein, provided he prosecutes
work upon the tunnel with a reason
able diligence.
When blind vein is discovered in
the tunnel, while the owner is prose-
cutting his work with diligence, he is
entitled to the possession of the vein
to the same extent as if he had dis
covered the vein upon the surface. He
may take up this vein for 1.500 feet in
any direction, either on one or both
sides of the tunnel. and may take up
any length of the vein he chooses on
either side of the line of the tunnel
line, so long as the total length of the
vein so taken up does not exceed 800
feet.
In order to save his rights to any
blind vein discovered in the tunnel, the
owner of the tunnel must present and
prosecute his adverse claim to any
such blind vein that may have been
discovered on the surface of any min
of the tunnel site, when the owner of
such mining claim located on the sur
face makes his application for patent.
THE CASE JUST DECIDED.
In the present case it was contended
that the patent issued to the Vestal
did not cover this blind vein. known
as the Jumbo No. ? vein. and that the
vein was discovered by the Enterprise
company before it's existence was
known to the Rico-Aspen company.
The decision of the court of appeals,
the substance of which is given above,
was affirmed by the supreme court,
and the Enterprise company will there
fore enter into full possession of that
portion of the Jumbo No. vein which
crosses the Vestal claim.
The effect of the decision is to give
all locators of tunnel sites 1.500 feet on
all blind veins found in running the
tunnel just the same as if they had
been located on the surface. but in
order to secure this right the tunnel
owner must diligently prosecute his
work, and when vein is discovered
on the surface to which his tunnel site
gives him a claim, ne must. to protect
his rights. adverse the application for
a patent for such surface claim.
nATNGC AT THE PAPK