The indicator., 1897-05-22
MINING DEPARTMENT
A VERY IMPORTANT
DECISION.
The Federal Supreme Court Decides Colorado Case
in Favor of Tunnel Owners, Giving Them
Great Advantage.

In Hope Mining Company VS.. Brown
I'll Mont. 80, :sS3l the Supreme Court
of the state observed: But has he lthe
tunnel ownerl not an inchoatc right in
such veins, which right is kept alive by
prosecution of work on the tunnel ac-
cording to law: This seems to he i'm
piled by the last clause of the statute
that FAILURE to prosecute the work on
the tunnel for six months shall he con
sidered as an abandonment of the right
to all undiscovered veins on the line
of the tunnel" The fact that said non
action on the part of the tunnel claim
ant should constitute an abandonment
shows that ii WIS the intent of Con
gress to reserve such lodcS from the
commencement of the tunnel, Will" 1t
was prosecuted according 10 law" See
also Black vs.. Sierra Nevada Con. Gin.
Co, e Idaho. 2SG.l
The plaintiffs further contend that
an act passed 10y the territorial lcgiSla
ture of Colorado in 1861 tS"SS. Law
Colo. 1861, p. 11G Mills Ann. Stats,
sec. 31i1 W. limits the right of the
tunnel to 2hO feet ON each side of the
tunnel. That section reads; ANY per
son or persons engaged In working Il
tunnel within the provisions of this
chapter shall he entitled 10 80 feet
each way from said tunnel, on each
lode 50 discovered" But If that see
ton has not been in terms repealed by
the Legislature of Colorado, 1t was
superseded by the legislation of Con-
grcss, ms found in the Revised stat
rtcs. CIlllet vs.. Campbell, Is colo,
J1OJ
The remaining question is whether
the failure to adverse" the application
for n patent for the NcStal claim de
stroyed or impaired the rights of the
defendants. We think not. Sections
2:3i25 and 232G. Revised Statutes, con-
tain the legislation in reference to adj
verse claims. These provisions are
substantially that when party makes
his application for patent if no ad-
verse claim is filed within sixty days
from application notice. it shall he as
sumed that the applicant is entitled
to patent: that when an adverse
claim is filed 't shall hc upon the
oath of the person or persons making
the same. and shall show the nature,
boundaries and extent of such adverse
claims, and all proceedings shall be
stayed until the controversy shall have
been settled or decided by II court of
competent jurisdiction or the adverse
claim waived. IT shall he the duty of
the adverse claimant within thirty
days after filing his claim, t" com
mence proceedings in court of com
petent jurisdiction To determine the
question of the right Of possession and
prosecute same with reasonable dill
.cnce to final judgment, and failure
to do so shall be Il waiver of his ad-
verse claim"
Now. at the time the application for
patent to the NcStal claim was pre-
scnted and the proceedings had there
on. the defendant knew of no vein
which would enable It 10 dispute the
right of the owners of the Nestal 10 n
patent. The Nestal claim. it Will he
perceived. runs parallel 10 the line of
the tunnel and is distant therefrom
some 800 feet. The presumption. of
course. would be that the vein ran
lengthwise and not croSswisc of the
claim as located, and such n vein
would not, unless 1t radically changed
its course. cross the line of the tunnel.
Whether il did or not or whether
any other vein should be found in the
tunnel which should cross the terri
tory of the Ncstal. was Il natter of pure
speculation, and there would be no
propricty III maintaining Il suit to cs-
tablish defendants inchoatc right To
delay the NcStal claimants i'll securing
Il patent on Il mere possibility which
might never ripen into a fact. The OBJ
vious contemplation of the law in re
Spcct to these adverse proceedings is
that there shall be II present tangible
and certain right. and not Il mere pos
sibility. of course, the owners of the
Ncstal claim had notice. from the fact
Of the location of the tunnel line. of
the possibilities which future cNciva-
tions of the tunnel might develop. and
.s.,I 4 ls,- f.,i1
urr 10 adverse" and as the defendant
could not in any suit which 1t might
institute establish Il certain adverse
right. and as litigation in the courts is
based upon facts and not upon posi-
biltirS. il seems to us that nothing
WAS To he gained by inStituting adj
verse proceedings, and. therefore. moth
Ing lost by II failure to do so. These
are all the questions in the case. We
are of opinion that the ,iecision of the
court of appeals is right, and 1t is ar
iirncd