the number of superficial feet or acres claimed in place of the number of linear feet and surface area embracing the lode.1

ARTICLE VIII. CONCLUSION.

463. General principles announced in previous chapter on lode locations apply with equal force to placers.

2463. General principles announced in previous chapter on lode locations apply with equal force to placers.The architecture of existing mining legislation is a composite of incongruous elements-an aggregation of piecework, which does not present, in outline, that symmetrical form or structure which commends itself to the professional eye. There is a total lack of harmonious blending, and it is often difficult to determine what provisions of the law apply distinctively to lode locations, and what to placers; or what, in contemplation of law, is to be applied to both.

The laws governing both classes had a common origin, and during the period when local rules and customs held sway the only difference between them was as to the extent of property rights enjoyed, and such modified regulations as were required by the difference in the form in which the deposits occurred. But discovery and appropriation were the sources of the miner's title, and continuous development the condition of its perpetuation in the case of both lodes and placers. Congress manifestly recognized these as the basis of its mining legislation, and as a rule the courts have applied the general underlying principles applicable to one class of locations to the other, so far as the nature of the deposits would permit.

The previous chapter on the subject of lode locations, dealing with the location and its requirements, the discovery, the manner of locating, the marking of the boundaries, the changing of these boundaries, and amendment to location certificates, the relocation of forfeited or abandoned

1 Rev. Code, 1895, 3612.

claims, applies in the main to placers, except in so far as the nature of placer deposits obviously demand a discrimi nation. There is no extralateral right attached to a placer claim pure and simple. Therefore, the laws as they are construed by the courts, with reference to end and side lines and the pursuit of veins beyond vertical planes drawn through surface boundaries, have no reference to placers.

For the purpose of systematic treatment, owing to certain peculiar attributes pertaining to lode locations, it was necessary to consider the two classes and their mode of appropriation separately. But there are many things in common between them, as we think will be readily observed by a consideration of this and the two preceding chapters. Unnecessary repetition should, in our judgment, be avoided.

CHAPTER IV.

TUNNEL CLAIMS.

ARTICLE I.

II.

INTRODUCTORY.

MANNER OF PERFECTING TUNNEL LOCATIONS.

III. RIGHTS ACCRUING TO THE TUNNEL PROPRIETOR BY VIRTUE
OF HIS TUNNEL LOCATION.

ARTICLE I. INTRODUCTORY.

467. Tunnel locations prior to the enactment of federal laws.

2468. The provisions of the federal law.

2 467. Tunnel locations prior to the enactment of federal laws.-Tunnel locations, or as they are sometimes. called, "tunnel sites," occupy a unique position in practical mining upon the public domain. They were not unknown during the period antedating the enactment of congressional mining laws. The discovery of a new mineral belt frequently gave birth to local rules upon the subject of tunnels, and it was by no means an uncommon occurrence for tunnel locations to be made on the four slopes of a mountain, their projected lines running into the hill from every conceivable point of the compass, and at different elevations above the mountain's base, from one hundred to several thousand feet. The practical development of the mines was, as a rule, from surface discoveries on the crest of the mountain, or its benches and sloping ridges. Strife or litigation between surface locators and tunnel proprietors rarely, if ever, arose, for the simple reason, that according to the popular view, priority of discovery, whether from the surface or in the tunnel, established a priority of

right. In many localities, the life of the camp was short, and most of the tunnel projects began and ended with the staking of a line, the incorporation of a company with a fabulous capital, and the tunnel bore barely entering under

cover.

We think it may be fairly stated, that prior to any legis tion upon the subject by congress, in popular estimation the purpose of a tunnel location was that of discovery of blind veins, or deposits, whose existence it might be difficult, if not impossible, to establish by surface exploration, and that such discovery, by means of the tunnel, should be treated as the equivalent of one made from the surface. As to questions of priority, it was a mere race of diligence. Rights upon the discovered lode dated from the discovery in the tunnel, and not from the date of the tunnel location. Surface prospecting within the vicinity of the projected tunnel line was not inhibited. The chances of a successful discovery in many formations was largely in favor of the tunnel method, and this was the inducement for projecting it; but the tunnel locator's privilege was not understood to be an exclusive one within any defined surface area. We do not assert that this was the universal rule, or that it was of such a general observance as to lead to the inference that congress had it in mind when it legis lated upon the subject. We do not know that is the fact. We have strong convictions upon the subject, but it would be difficult to assert, that in construing congressional legislation, as we are about to do, these antecedent conditions, popular theories, and local experiences should, or could, legally be resorted to as an aid of interpretation. We must take the statute as we find it, and construe it according to ordinary rules of interpretation.

468. The provisions of the federal law. We are not at present concerned with the act of congress of February 11, 1875,1 providing that development work performed in running a tunnel shall be estimated as work done upon

118 Stats. at Large, 315.

the lodes with like effect as if done from the surface. This act has no particular bearing upon the subject now under consideration. We are now called upon to construe section four of the act of May 10, 1872, which is embodied in the Revised Statutes, and is as follows:

"2323. Where a tunnel is run for the development "of a vein, or lode, or for the discovery of mines, the own"ers of such tunnel shall have the right of possession of "all veins, or lodes, within three thousand feet from the "face of such tunnel on the line thereof, not previously "known to exist, discovered in such tunnel, to the same "extent as if discovered from the surface; and locations "on the line of such tunnel of veins, or lodes, not appear"ing on the surface, made by other parties after the commencement of the tunnel, and while the same is being "prosecuted with reasonable diligence, shall be invalid; "but failure 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."

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66

ARTICLE II. MANNER OF PERFECTING TUNNEL LOCATION.

472. Acts to be performed in ac-474. quiring tunnel rights.

473. "Line" of tunnel defined.

475.

"Face" of tunnel defined. The marking of the tunnel location on the ground.

2 472. Acts to be performed in acquiring tunnel rights. The statute is silent as to the manner in which a tunnel location is perfected. The subject is regulated entirely by rules prescribed by the commissioner of the general land office, under the direction of the secretary of the interior, the authority for such regulation being found in the provisions of the Revised Statutes.' These rules, prescribed in pursuance of such authority, become a mass of that body of public records, of which the courts take judicial notice, and when not repugnant to the acts of congress have the force and effect of laws."

1 2 2478.

2 Caha v. United States, 152 U. S. 211.

3 Poppe v. Athearn, 42 Cal. 607; Rose v. Nevada & G. V. Wood & Lumber Co., 73 Cal. 385; Chapman v. Quinn, 56 Cal. 266.