By these rules the tunnel locator is required, as soon as his projected tunnel enters cover, to give notice by erecting a substantial board or monument at the "face" or point of commencement thereof, upon which must be posted a good and sufficient notice, containing:

(1) The names of the parties claiming the tunnel right; (2) The actual or proposed course or direction of the tunnel;

(3) The height and width thereof;

(4) The course and distance from such face or point of commencement to some permanent well-known objects in the vicinity, by which to fix and determine the locus, as in case of lode claims.

The "boundary lines" thereof are to be established by stakes and monuments along such lines, at proper intervals, to the terminus of the three thousand feet from the "face" or point of commencement.

At the time of posting the notice and marking out the lines, a full and correct copy of such notice, defining the tunnel claim, must be filed for record with the mining recorder of the district, to which notice must be attached the sworn statement or declaration of the owners, claimants, or projectors of such tunnel, setting forth the facts in the case, stating the amount expended by themselves and their predecessors in interest in prosecuting work thereon, the extent of work performed, and that it is their bona fide intention to prosecute work on the tunnel so located and described, with reasonable diligence. As to what lines are to be marked, we shall consider in a subsequent section.

473. "Line" of tunnel defined. The supreme court of Colorado has held, that the line of the tunnel mentio ned in the act designates a width marked by the exterior lines or sides of the tunnel. This view is accepted by the

See, Circ. Instructions, Dec. 10, 1891, pars. 20-26. See appendix. 2 Corning Tunnel v. Pell, 4 Colo. 507, 511.

supreme court of Montana,' and is in harmony with the rulings of the land department. The circuit court of appeals for the eighth circuit, in the case of Enterprise M. Co. v. Rico-Aspen Cons. M. Co.,3 undoubtedly coincides with this definition, as will be observed from the language of its decision taken in connection with the plat referred to and the plat accompanying the decision of Judge Hallett.1 A like interpretation by the supreme court of Idaho is necessarily inferred from a reading of the opinion of that court in Back v. Sierra Nevada Cons. M. Co.

We are entitled to assume, that there is no doubt as to what is meant by the "line of such tunnel" that it is the width marked by the exterior sides of the tunnel throughout the length of three thousand feet in the direction. claimed. This definition is an important factor in construing the other provisions of the act, and enables us to reach a plausible conclusion as to the extent of the privileges conferred upon the tunnel locator.

2 474.

"Face" of tunnel defined.-The land department construes the term "face of such tunnel" as used in the Revised Statutes to mean, the first working face formed in the tunnel, and to signify the point at which the tunnel actually enters cover; it being from this point that the three thousand feet are to be measured. There is no room for dispute as to this. While, in speaking of the face of a drift or tunnel in the conduct of active mining operations, as work advances the face recedes farther into the hill, and its locus is constantly changed, the word as used in the tunnel law can mean but the one thing, and that is, the first full exposure of height and width after entering

1 Hope M. Co. v. Brown, 7 Mont. 550, 557; Id.. 11 Mont. 370, 379.

2 In re David Hunter, 5 Copp's L. O. 130; Copp's U. S. Min. Lands, 231; Commissioner Drummond, Copp's U. S. Min. Dec. 144; Commissioner Williamson, Copp's Min. Lands, 222; Corning Tunnel M. & R. Co. v. Pell, 3 Copp's L. O. 130, 131.

366 Fed. 200.

453 Fed. 321. See, post, 487, fig. 23.

52 Idaho, 396.

under cover. It was manifestly intended that the length of the open surface approach to where the tunnel enters cover was not to be considered in estimating the three thousand feet, and for that reason the term "face" was used.

2475. The marking of the tunnel location on the ground. We have already noted the regulation of the land department requiring the locator of a tunnel to mark the boundary lines thereof. We have italicized the word lines, inviting attention to the fact that the statute refers only to a single line. Assuming that the regulation is authorized by the law, what is meant by the lines of the tunnel? The only answer to this question which is consistent with the construction of the act followed by the land department, as well as the courts,' is, that the lines are those drawn parallel to the course of the tunnel, at a distance from each other equal to the width of the tunnel, so that vertical planes drawn through them will, upon reaching the proper depth, be coincident with the sides of the tunnel. As marked upon the surface they would represent a parallelogram three thousand feet long, with a width equal to the width of the tunnel bore, which is usually six or eight feet. No sanction is found for mark ing any other lines. The department has held, that while the tunnel proprietor may, upon discovery in the tunnel, make a location upon the surface on either side of the tunnel line to the extent of fifteen hundred feet in length by the width allowed by law, there is no authority for staking out a superficies fifteen hundred feet, or three thousand feet wide by three thousand feet long."

This view finds support in the decision of the supreme court of Colorado, in the case of Corning Tunnel Co. " Pell. The marking herein indicated is all that the law or regulations require.

1 See, ante, ? 473.

2 Corning Tunnel M. & R. Co. v. Pell, 3 Copp's L. O. 130.

34 Colo. 507, 510.

% 479. Important questions suggested by the tunnel law. The provisions of the law upon the subject of tunnel locations present for consideration several important questions, the solution of which has engaged the attention of the courts, both state and federal. The results reached are by no means harmonious. The inquiries suggested may be thus formulated:

(1) What are the rights accruing to the tunnel proprietor by virtue of a discovery made in the tunnel, in the absence of conflicting rights acquired by surface discovery?

(2) To what extent does the inception of a tunnel right. and its perpetuation by prosecuting work with diligence operate as a withdrawal of the surface from exploration by others?

Some incidental questions necessarily arise, the correct solution of which depends upon reaching a satisfactory conclusion, by way of answers to one or the other of the foregoing inquiries.

LL

2480. Rule of interpretation applied.-Section twentythree hundred and twenty-three of the Revised Statutes provides, that the tunnel discoverer shall have the right of possession of all veins not previously known to exist, to the same extent as if discovered from the surface.

This is to be construed in connection with the entire body of the mining law, and not as if it stood as an isolated piece of legislation. It must be harmonized, if possi ble, with all existing legislation which is essentially in pari materia. The intention of the law-maker is to be deduced from the whole statute and every material part of the same. To determine the extent of rights conferred by discovery from the surface, we must resort to other sections of the law.

481. Length upon the discovered lode awarded to the tunnel discoverer.-Section twenty-three hundred and twenty of the Revised Statutes provides, that a mining lo cation based upon a surface discovery may equal, but shall not exceed, fifteen hundred feet in length.

but

As to the length on the discovered lode to which the tunnel discoverer is entitled, Judge Hallett was of the opinion, that it was not fixed by the act of congress, was left to local regulation, and that, in the absence of such regulation, nothing would pass but the line of tunnel.2

the

the

Prior to the passage of the congressional law, a state statute was in existence in Colorado, fixing the length at two hundred and fifty feet each way from the tunnel, and Judge Hallett held this statute to be controlling after enactment of the federal law. The supreme court of United States has incidentally stated that such was rule, but the case then under consideration arose out of a

the

the

1 Pennington v. Coxe, 2 Cranch, 33; Washington Market Co. v. E offman, 101 U. S. 112; Platt v. Union Pac. R. R., 99 U. S. 48; Kohlsa at v Murphy, 96 U. S. 153; Heydenfeldt v. Daney G. & S. M. Co., 93 U. S. 634; Neal v. Clark, 95 U. S. 704.

2 Rico-Aspen Cons. M. Co. v. Enterprise M. Co., 53 Fed. 321.