location made in 1865, at a time when the statute was undoubtedly controlling.1

The supreme court of Colorado has determined that this state law was not in force after the passage of the congressional law, and that a discovery in the tunnel entitled the discoverer to fifteen hundred feet in length on the lode, under the provisions of section twenty-three hundred and twenty of the Revised Statutes,' which ruling was followed by the circuit court of appeals for the eighth circuit, overruling the decision of Judge Hallett above referred to.3

The supreme court of Montana has stated, that when veins, or lodes, are discovered in the tunnel, the claimant will be entitled, as a matter of right, to the vein, or lode, for fifteen hundred feet in length, and this is the understanding of the law expressed by the commissioner of the general land office."

We may therefore safely conclude, that the discoverer of a lode encountered in driving a tunnel is, in the absence of any conflicting claims, entitled to fifteen hundred feet in length on the discovered vein, and that this right is referable to section twenty-three hundred and twenty of the Revised Statutes.

A

How is this fifteen hundred feet to be measured? proper answer to this question involves the correct determination of two others:

(1) After discovery in a tunnel, is it necessary to mark the location of the discovered lode on the surface?

(2) If it is necessary to so mark the location, must the boundaries include the apex?

1 Glacier Mt. S. M. Co. v. Willis, 127 U. S. 471, 481.

2 Ellet v. Campbell, 18 Colo. 510.

3 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. 200.

* Hope M. Co. v. Brown, 7 Mont. 550, 555.

At one time a state law existed in Montana, limiting the extent to three hundred feet on each side of the discovery, but this has since been repealed by implication. Civil Code 1895, 4672; Pol. Code 1895, § 5186. 5 Commissioner Drummond, Copp's Min. Dec. 144.

482. Necessity for appropriation of discovered lode by surface location. It being well established that the tunnel discoverer is entitled to fifteen hundred feet in length on his discovered lode, the inquiry naturally suggests itself: How is he to disclose his intention as to the extent and direction in which he shall take it, so as to inform others where his rights end and theirs may begin? How are other prospectors to find out where to search for or locate lodes, with due regard to the rights of the tunnel discoverer?

Judge Hallett, in the case of Rico-Aspen Cons. M. Co. v. Enterprise M. Co.,' ruled, that in case of a location based upon discovery made in a tunnel, it is as necessary to mark the boundaries on the surface and file a certificate for record, as in any other case. This is in accord with the views of Commissioner Williamson, who instructed the surveyorgeneral of Colorado, that "no patent can issue for a vein, "or lode, without surface ground, and as the surface which "overlies the apex of a vein, or lode, discovered in a tun"nel can only be ascertained by sinking a shaft, or by following a lode up on its dip from the point of discov

ery, no survey of such lode will be made until the exact "surface ground is first ascertained;" and this ruling has been uniformly adhered to by the land department.

The supreme court of Colorado, however, has taken a different view. It announces the rule that location on the surface by defining surface boundaries is not necessary. Its argument is based upon the following reasoning "Section twenty-three hundred and twenty-three was "obviously designed to encourage the running of tun nels "for the discovery and development of veins, or lodes, of "the precious metals not appearing upon the surface and "not previously known to exist. Little encouragen ent "would the act give if the discoverer of a lode in a tunel "were bound also to find the apex and course of such vein, uncover the same from the surface, sink his location shaft

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153 Fed. 321.

24 Copp's L. O. 102. See, also, In re David Hunter, Copp's Min. Lands,

"thereon, mark the boundaries thereof, and record his certi"ficate of such surface location, the same as if he had made "the original discovery from the surface.

"The location of a lode from the surface is always "attended with more or less difficulty and uncertainty. "Mistakes occur in the location of boundary lines, even "where the apex and course of the vein lie comparatively near the surface. These difficulties and uncertainties are "liable to be greatly increased where a lode is discovered 'by means of a tunnel driven hundreds and thousands of "feet into the heart of the great mountain. To require "the discoverer of a lode in a tunnel to prospect for the "vein upon the surface, and uncover and mark its bound"aries so as to include the apex and course within the "lines of the surface location, would be to require a work "of supererogation, for no surface location is necessary for "the convenient working of the lode discovered in a tun"nel location already made. Such requirement would "unnecessarily burden the tunnel locator and discoverer; "to the great labor and expense of tunneling as a means "of a location and discovery, it would add the labor and expense devolving upon the ordinary surface discoverer "and locator. Besides, such a requirement would sub'ject the discoverer of a lode in a tunnel to the hazard of "a race for its surface location; and thus the discoverer "might have the fruits of his labor wrested from him by a surface locator who had done nothing and expended nothing in the original discovery."

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1

The location of the lode discovered in the tunnel in this case was by posting a notice at the mouth of the tunnel, claiming seven hundred and fifty feet on each side of the discovery point in the tunnel, five hundred and ninetyfour feet from its face. A notice was also recorded in the county recorder's office, corresponding with the posted. notice.

It is a grave undertaking for an author to attack a decision of a court as pre-eminent in the mining world as the supreme court of Colorado. But whichever way we turn in construing this law we are met with like embarrassments. No solution can possibly be reached which will harmonize with all of the decisions of all the courts.

1 Ellet v. Campbell, 18 Colo. 510, 519, 520.

Under the circumstances, we think we are justified in analyzing all of the decisions and deducing our conclusions. Unless such conclusions are based upon logic and reason, they will not be of any controlling force.

First addressing ourselves to the manner in which the lode discovered in the tunnel was located, i. e. by posting a notice at the mouth of the tunnel and recording a similar notice, we fail to find any sanction for such a proceeding. Neither posting nor recording are enjoined by the federal law. In the absence of state law or regulation none is necessary.1

Wherever in any state legislation a notice is required to be posted, it must be placed either upon the lode or in reasonable proximity to it. In Colorado, it is to be posted at the point of discovery. It performs a mere temporary function, protecting the discoverer in his possession during the time allowed for the completion of his location. It is succeeded by a certificate of location, which is the basis of the record. This certificate is required by law of Congress to contain such a description of the claim by reference to some natural object or permanent monument as will identify the claim, so as to permit others to determine its locus on the surface. Unless the recorded certificate considered by the supreme court of Colorado falls within the sanction of the state law, it is worthless. It would be irrelevant and inadmissible as evidence, and no constructive notice is imparted thereby.1

The federal laws do not provide for any method of appropriation of lodes, except by locating a surface inclos ing them, and this requires the marking of the location on the ground so that the boundaries may be readily traced."

How are the end lines of a lode claimed by discovery in a tunnel to be marked, so that the extralateral rights of others on another portion of the same vein located from

the surface, outside of any possible surface conflict with a tunnel claimant, may be defined?

If it should be answered that such end lines must be drawn parallel to the line of the tunnel, or at right angles to the general course of the discovered lode, we say that there is no warrant in the law for such methods. It would be judicial legislation for courts to so assert.

It seems to us, that in construing the entire body of the mining law there is but one logical conclusion to be reached, and that is, that the tunnel location is a means of discovery; that when discovery is made, the surface location must follow within a reasonable time, or within the period fixed by the state laws; that this location must cover the apex; and as to this, the tunnel and surface discoverer are placed in the same category-they both locate at their peril.1

But it will be urged, that the discovery being on the dip of the vein, as a rule it will be impossible to make the location upon the surface so as to include both the apex and place of discovery. In other words, the discovery will not be within the limits of the claim as required by section twenty-three hundred and twenty.

Our answer is, that the right granted by section twentythree hundred and twenty-three to acquire the veins by tunnel discovery to the same extent as if discovered from the surface, necessarily implies an exception to the rule, that the discovery must be within the surface boundaries. Some legislation of this character was necessary to give any effect to a tunnel discovery.

When the apex is covered by the surface location, with proper direction given to the end lines, the place of discovery will be within the limits of, and covered by, the grant, i. e. the ownership of the vein in its entire depth, acquired by the surface location, and in contemplation of law it is a part of the claim.

In response to the suggestion that little encouragement

1 See, ante, 22 364-365.