The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1900-01-08
Observation-Disclosures
"a that the matter will have to be finally
decided by the United States supreme
court, anyhow


@ that the matter win hsys 70 be finally
court, anyhow.
Question ID Considered.
OBJ. The claim Of the Calhoun as to the
first part OF this question was. that In all
excepted, and that. the .patentee takes no
title thereto by virtue of his patent. This
proposition was more audacious than the
rea ana more 70
was wa. made, by section 2s2a Of Revised
lS s. ss that s.e tt the wSs Il might might s
be good against all other parties than the
tunnel owner. But the ruling Of the Col
orado supreme court in this case covers
Section 1923. Revised Statutes. reads a.
follows:
Where /. tunnel is run for the development Of a
vein or lode. OF for the discovery Of mines. the
owners Of such tunnel shah have the right Of pos
session Of all veins odes within three thousand
feet from the face Of such tunnel on the line there
Of not previously known to exist, discovered in such
tunnel, to the same extent as II discovered from
the surface. and location on the line Of such tun-
mel of, veins lodes not appearing at the surface
made by other parties after the commencement Of
the tunnel and while the same Is being prosecuted
ure to prosecute the work on the tunnel for six
months shall be considered as an abandonment OF
the right TO all undiscovered veins on the line of
such tunnel
The decision under review declares, first,
that a valid location of mining claim,
SO long as 1t Is in full force and effect,
esr so 20 seSone
to others only such rights as do not at
tach to the first-comer by virtue of his To-
cation cation Then, proc ,h to inquire What
out that II the right to blind lodes be
one of them, then section 1928 (granting
to hs the gh to all 5 5d
filming the rights OF tunnel Iocations)
would be hopelessly in conflict. Such an
ans hs son msss he'd 0sfa had sssg
solved by recourse to the extreme (and,
with respect to this. statute. whimsical
and unnn,ecessaryl principle. that where
flict, the later in order must be deemed to
be the later in origin, and to express the
later intention Of the legislature. and
ton, But the court takes, In this case. a
more sensible view. 1t falls back Upon the
common law Of mining, so to speak. and
order of the printed provisions of the
statute. but in the. actual appropriation
of the public domain under the statute
In other words. 1t will not impose upon
section 1923 construction which would
supersede the general fundamental grant
of section 1928
further and rules that the later tunnel To-
cation has not even right of way
through the ground of prior, valid, sub
that the tunnel has no other right of way
through such ground than II would have
through any other private property. State
legislation may provide for such right
of way subject to the usual formalities
and precautions attending the exercise OF
the states eminent domain. In some in
stances, state legislatures (notably that
OF New York; have treated the mining in
dustry as q matter OF public welfare to
such an extent as to clothe It. even in
private hands, with eminent domain"
and enable It, after due formal proceed
ings, to acquire by condemnation" the
easements dncluding the right of way)
necessary to its prosecution. And section
233S OF the United States Revised Statutes
provides that state legislatures may. In
the absence Of Federal laws, make such
regulations, even as regards the public do
main. But the first question in this case
was whether section 1923 fthe tunnel
section'') confers. per Sc, and without any
further legal proceedings. a right of way
through prior and valid lode locations
upon public mineral land. Subordinate to
this arose the question whether any local
legislation of Colorado has conferred such
a right. Both these questions are answer
ed in the negative In the words OF the
admirable summary Of the court:
Mining rights are statutory, but not
purely so. They relate to real estate;
and such rights as are not defined or lin
tied by statute are stilf controlled by the
rules of the common law. Such rights as
ara eopSeyred M = k9Adb Rr1o1 l0cefsnon