would be given to exploitation by tunnel if the tunnel claimant were put to the inconvenience of locating the apex, we suggest, that the surface locator is put to this inconvenience, and his hardships are greater than a tunnel discoverer's. With a vein cut in a tunnel, it is far easier to trace its course by drifting, and its angle of declination by upraising, than it is to establish it from the surface, unless the outcrop is pronounced and well defined. Be that as it may, individual hardships invariably flow from the application of many general laws, and this affords no substantial reason for ignoring them. If the courts are compelled, as they concede that they are, to resort to section twenty-three hundred and twenty of the Revised Statutes to determine the rights of a tunnel discoverer as to length along the discovered lode, why should they reject all the remaining elements contained in that section, which are the attributes of the location by which the right to a discovered lode to the length stated is established and perfected? It seems to us that the rule announced by the supreme court of Colorado violates the cardinal rule of construction announced in a previous section, and that in reaching its conclusion, it fails to consider the entire body of the mining law. As to the suggestion of that court that no surface is required for the convenient working of a lode discovered in a tunnel, the court overlooks two essential elements. In the first place, the theory which was prevalent prior to the passage of the act of May 10, 1872, that surface was to be granted in connection with the lode simply for convenient working purposes, finds no place in the act which contains the tunnel provisions. The act which permitted a patent in the form of the Idaho mine, shown in figure 1, page 67, gave place to a law framed on altogether different theories. The requirement as to surface delineation of a location under the later law, by marking the location on the ground so that its boundaries could be readily traced, was not for See, ante, 2 481. See, ante, 2 68, 71. 2 See, ante, 2 480. the peculiar benefit of the discoverer and locator, but that others seeking in good faith to discover and locate unappropriated lodes might be able to ascertain exactly what had been theretofore appropriated.' If a tunnel locator is permitted to attach his permanent rights on a discovered lode to a point in the bowels of the earth absolutely inaccessible to any one else, without his voluntary consent, how can the situs of his discovered lode be fixed, so as to warn the subsequent prospector of the tunnel proprietor's rights? The tunnel discoverer has the exclusive knowledge of the position of the vein in the earth. He alone has the facilities for determining the angle of declination, the course of the vein, and approximately, at least, the position and direction of the apex upon or near the surface. To say, that after a discovery in the tunnel, if the tunnel proprietor is compelled to mark his location upon the surface, he is subject to the hazard of a race of diligence against one who might stake out his boundaries on the surface, implies one of two legal absurdities: Either that a person in hostility to the tunnel discoverer may base a location without any discovery, or that he may make a location founded upon the discovery by another, which is only permitted in cases of abandonment by the discoverer. A complete answer to this objection is found in the fact, that after discovery in a tunnel the discoverer would be protected for at least a reasonable time in which to mark his boundaries.3 We can conceive of no legal hardship flowing from the necessity for compliance with the requirements as to surface marking. A tunnel locator projects his tunnel with a full knowledge of the law. He starts with his eyes open. as to its defects and ambiguities. He is charged with the knowledge of the regulations and rulings of the land department, which, from the beginning, have insisted upon a surface marking. If he projects his tunnel with this knowledge, we do not see what equities arise from expenditures made in prosecuting his work which may legally 1 See, ante, 371. 3 See, ante, 339, 372. address themselves to the "conscience of the chancellor." To uphold the views announced by the supreme court of Colorado requires us also to ignore an element of interpretation frequently announced and upheld by the supreme court of the United States. The contemporaneous construction of a statute by the executive officers of the government, whose duty it is to execute it, is entitled to great respect, and should ordinarily control the construction of the statute by the courts.1 The fact that this construction by the land department originated in a letter, written perhaps informally, or in answer to an official inquiry, is not at all material if it is shown that the views therein expressed have uniformly been recognized by the land department, and that such is the fact in this instance it cannot be successfully denied. We think we are justified in the conclusion, that a lode discovered in a tunnel must be located from the surface, the boundaries must be marked, and all other requirements pertaining to lode locations generally must be fulfilled. The rights upon such discovered lode will thereafter be defined by the surface boundaries and their relationship to the located lode. This rule permits some force to be given to all the provisions of the Revised Statutes. Any other interpretation violates many of them. 483. To what extent does the inception of a tunnel right and its perpetuation by prosecuting work with reasonable diligence operate as a withdrawal of the surface from exploration by others?-It seems to have been assumed by many, if not all, of the courts, that a tunnel location once perfected in accordance with the departmental regulations has the effect of withdrawing from the body of the public domain a certain superficial area, within 1 Pennoyer v. McConnaughy, 140 U. S. 1; United States v. Hill, 120 U. S. 169; United States v. Philbrick, Id. 52; Hahn v. United States, 107 U. S. 402; United States v. Moore, 95 U. S. 760; Brown v. United States, 113 U. S. 568; Barden v. N. P. R. R., 154 U. S. 288; Montana Co., Limited, v. Clark, 42 Fed. 629. which, so long as work in the tunnel is prosecuted with reasonable diligence, surface exploration is prohibited. Before seeking for the justification of this assumption in the terms of the mining statutes, it is advisable to examine the adjudicated law upon the subject and determine, if possible, to what extent, if any, the various tribunals agree in their conclusions. We find that this question, with others incidentally involved, has been before the courts of Colorado, Montana, and Idaho, and the federal courts in the eighth circuit. 2484. The Colorado rule.-The case of Corning Tunnel Co. v. Pell' involved a controversy between the tunnel company locating a tunnel in September, 1872, and the locators of the Slide lode, located August 17, 1875. The Slide lode was fifteen hundred feet in length, and crossed the center line of the tunnel site nearly at right angles. The discovery shaft was near, but not on, the center line, being about fifty-five feet therefrom. The lode had not been reached or cut by the tunnel. The tunnel site as claimed described a parallelogram, three thousand by fifteen hundred feet. The tunnel had been worked with reasonable diligence, and had not been abandoned. The owners of the Slide lode applied for a patent, and the tunnel company adversed. The action was in support of the adverse claim and to try the title to the Slide lode. It was contended by the tunnel claimant, that the "line "of the tunnel" meant the entire width and length of the surveyed tunnel site, that is, fifteen hundred by three thousand feet; that within these limits, after the commencement of the tunnel and while it is prosecuted with diligence, no valid location could be made of a vein, or lode, not appearing upon the surface. The supreme court of Colorado held: (1) That there was no law authorizing a tunnel location 14 Colo. 507. of any such dimensions; that the line of tunnel was the width marked by the exterior lines or sides of the tunnel;1 (2) That the result contended for by the tunnel claimant forbids its adoption, unless the language clearly indicates such to have been the legislative intent. In this case, the tunnel-site location would withdraw from the exploration of prospectors over one hundred acres of mineral lands. A very limited number of tunnel locations would cover and monopolize, in most cases, an entire mining district, giving to a few tunnel owners all its mines, not upon the condition of discovery and development, but upon the easy condition of a commencement of work on the tunnel, and its prosecution with reasonable diligence. The policy of the general government has been to prevent monopoly of its mineral lands, or its ownership in large tracts. But for the existence of this policy, there was but little or no reason for an abandonment of its system of surveys and pre-emptions applicable to agricultural lands, and the adop tion as to its mineral lands of a system that, as to surface claims at least, limits mining locations to an inconsiderable acreage, appendant to a discovered lode. The construction claimed is in contravention of this policy; nor can it be justified by the language of the section; (3) No right of possession of a lode inures to the tunnel claimant until it is discovered in the tunnel; (4) The Slide lode, not having been discovered in the tunnel by the tunnel proprietor, and the "location, "i. l. discovery, not being on the line thereof, the tunnel proprie tor had no right to the lode. This is a clear enunciation of the rule, that the mere location of the tunnel site does not withdraw the surface adjacent to the tunnel line from exploration and location; that the tunnel is only a means of discovery, and that priority of discovery establishes a priority of right. Fifteen years later the same tunnel site was again brought 1 See, ante, ? 473. |