Mohave County miner., 1899-05-13
Tunnel Site Locations.

The law regarding the rights relative
to tunnel sites has always been of meag.
er propositions, and those who were en-
gagged in this class of mining hardly
knew just where they stood, The de
cision Of the supreme court in the case of
the Enterprising Miniog Go. against the
Rico-Aspen Consolidated, has to a Ger.
tain extent remedied many OF these evils
The opinion was delivered by Justice
"Surely 1t is not strange that congress
deemed it wise to offer some inducements
for running tunnel into the side OF
mountsIn. AT the same time il placed
some specific locations on the rights
which the tunnel excavator could &C.
quire. He could a, qnire no veins which
had heretofore been discovered from the
surface. His right reached only to blind
veins, as they may Oe called, not veins
known TO exist and not discove from
the surface before he commenced his
tunnel. 1t required reasonable diligence
in the prosecution OF his work. 1t placed
limit 10 5000 feet beyond which he
might not go in his search for veins and
acquire any rights under his tunnel To-
cation, and the veins to which he might
acquire any rights we're those which the
tunnel itself crossed. We think, there
fore, that the right to vein discovered
IN the tunnel dates by relation back to
the time Of the location Of the tunnel
rite, and also that the right OF locating
the claim to the vein arises upon it's dis
covery 10 the tunnel and may be- exer.
cised by locating that claim the full
length OF 1900 feet on either side Of the
tunnel, or in such proportions thereof on
either side AZ the locator may desire"
Judge Brewer says tha; the act Of the
Colorado legislature Of 1891, giving any
person working n tunnel $50 feet each
way on every lode, has been superseded
by congressional legislation.
The remaining question was whether
the failure to reject the original applica-
ton for patent on the Vestal claim (Rico-
Aspen destroy el or impaired the group
tunnel claim (Enrerprise). The court
holds that it did not. TIE court says in
conclusion:
Now, at the time the application for
patent to the Vestal claim was presented
and the proceedings had thereon, the
defendant knew Of no vein which would
enable it to dispute the rights Of the
owners of the Vestal to patent. The
Vestsl claim, it will be perceived, runs
parallel to che line OF the tunnel and is
distant therefrom some 500 feet. The
presumption would be that the vein ran
lengthwise and not crosswise OF the claim
as located, and such vein would not,
unless it radically changed it's course,
cross the line Of the tunnel. Whether it
did or not, or whether any other vein
should be found in the tunnel, which
runs across the territory OF the Vestal,
was a matter { pure speculation, and
there woIld be no propriety in maintain.
ing suit to establish defendants in.
choate right and delay the Vestal claim.
ants in securing a patent on mere pos
sihility which might never ripen into a
fact. The obvious contemplation OF the
law in respect to these adverse proceed
ings is that there shall be present tan.
gible and certain right, not mere posi-
bihty. Uf course, the owner Of the Yes
tai claim had notice from the tact of the
location OF the tunnel line, OF the possi
bility which the future excavations Of
the tunnel might develop, and 80 they
we're not preiudiced by the failure to sd
verse, and Az the defendants could not
in any suit which it might institute es
tablish certain adverse right, and as
litigation in the courts is based upon
facts and not upon possibilities, it seems
10 US that there was nothing to be gained
by tie defendant instituting adverse pro.
ceedings, and, therefore. nothing lost by
a failure to do so."-Miner and Elec.
trician. .#