to the attention of the same court, in the case of Ellet v. Campbell upon the following state of facts:

The tunnel claimant, on February 3, 1875, discovered in the tunnel, on the line thereof, five hundred and ninetyfour feet from the face, the Bonanza lode, and located it by posting a notice at the mouth of the tunnel and recording a similar notice as described in a preceding section."

The Bonanza lode did not appear upon the surface of the ground, and was not known to exist prior to discovery in the tunnel. It was not staked on the surface. No discovery shaft was sunk, or work done upon the surface. The annual work on the lode was regularly performed. On July 10, 1886, Campbell, the defendant, and another made a location of the J. L. Sanderson lode, which was identical with the Bonanza lode. Their location was based upon a discovery made in a "cut," two hundred feet to the east of the east line of the bore of the tunnel. At the time of marking the Sanderson location, the locators knew of the discovery theretofore made in the tunnel. The locators of the Sanderson lode applied for a patent, the tunnel claimant adversed, and hence the suit.

Upon this state of facts, the supreme court of Colorado held, that having made a discovery in the tunnel, the discoverer is not bound to make another discovery and location of the lode from the surface, in order to be protected against a subsequent surface locator of the same lode.

Having determined that it was not necessary to mark the location on the surface, and that the manner of location heretofore, described was sufficient, the appropriation of the lode having been perpetuated by continued performance of the annual work, no other conclusion could. possibly have been reached by the court than the one announced. Our criticism of the decision in a previous section is based upon that part of the ruling which denies the necessity for a location upon the surface.

We do not see in what manner the doctrine announced

in Corning Tunnel Co. v. Pell is affected by the decision in Ellet v. Campbell. Both cases sustain the claims of prior discoverers. In fact, priority of discovery is the foundation of both decisions. So far as the state courts of Colorado have thus far expressed themselves, the rule in Corning Tunnel Co. v. Pell, that the location of a tunnel does not operate as a withdrawal of the surface adjacent to the line of the tunnel from exploration, and that priority of discovery establishes priority of right, remains unchallenged.

485. The Montana rule.-At the time the cases considered by the supreme court of Montana arose, there was a state statute, which had been enacted in 1872, and which contained among others the following provisions:

"Any person or persons pre-empting any tunnel have "the exclusive right to three hundred feet on each side "from the center of said tunnel, on any and all lodes that "he or they may discover in the course of said tunnel."

In June, 1887, the Hope Mining Company located the Jubilee tunnel in Deer Lodge county, Montana. In the following December, Brown located a quartz claim within three hundred feet of the line of the tunnel, basing his location upon a discovery in a tunnel, and was engaged in extracting ore therefrom when the Hope Mining Company sought an injunction preventing further mining operations by the quartz claimant. The ledge in controversy had not been discovered in the Jubilee tunnel, although the complaint alleged that it appeared to cross it.

The supreme court of Montana held:

(1) That a tunnel claimant upon discovering a vein, or lode, in his tunnel will be entitled as a matter of right to the vein, or lode, for fifteen hundred feet in length along its course, and to the extent of three hundred feet side thereof from the middle of the vein;

on

each

(2) Brown's location is valid, though liable to be divested by the subsequent discovery of the same vein in

the Hope tunnel, if such location is found to be within three hundred feet from the middle of, and fifteen hundred feet from the point of, the tunnel discovery, measured along the vein. That third parties have the right to locate any veins within three hundred feet of the line of the tunnel, which is held to be the width of the sides of the tunnel, but such locations so made are at the risk of the locators, for upon the discovery of the vein, or lode, in the tunnel all locations made subsequent to the commencement of the tunnel become invalid if they are within the distances above specified.

The court also adds the following:

"As a matter of course, veins, or lodes, discovered from "the surface, or previously known to exist, are not affected. by the right of the tunnel claimant, which we may here "remark to be most ample and sweeping."

66

The injunction was denied.'

It is extremely difficult to ascertain precisely what the court meant by the language used in the quoted paraagraph. If a discovery from the surface made prior to discovery in the tunnel, but after the perfection of the tunnel location, would take precedence over the subsequent tunnel discovery, it is difficult to understand the closing remark, that the tunnel proprietor's rights are most ample and sweeping.

Another case between the same parties, involving the same relative rights, came before the same court a few years later, wherein it appeared that Brown had applied for a patent for his location made as indicated in the previous The tunnel company adversed, and the action was to determine the adverse claim.

case.

The court held, upon the showing made, that the applicant for patent ought to be restrained from prosecuting his proceedings while the tunnel proprietor is prosecuting his tunnel as required by law, and until it is demonstrated. that such vein, or lode, will not be discovered in the

1 Hope M. Co. v. Brown, 7 Mont. 550.

tunnel, or until such tunnel rights are abandoned by failure to prosecute the tunnel as provided by law.'

It must be conceded that the views of the supreme court of Montana tend to support the doctrine, that a perfected tunnel site practically withdraws the surface to the extent of fifteen hundred feet on each side of the line of the tunnel, and that the withdrawal remains in force until it is either demonstrated that a given lode will not be cut in the tunnel or the tunnel site is abandoned.

486. The Idaho rule. In the case of Back v. Sierra Nevada Cons. M. Co." the following state of facts appeared:

The complaint alleged in substance that Back owned the Pilgrim tunnel, located April 5, 1886. On April 6, 1886, defendants grantors entered upon the line of the tunnel at a point where post number nine on said line was planted. They had full knowledge of the existence of the post and the location of the tunnel. They commenced to prospect for minerals, and at a depth of twelve feet discovered a ledge.

This ledge was blind, and would be intersected by the tunnel continued on the location line thereof. Defendants grantors located and recorded a mining claim called the Sierra Nevada, and afterwards made application for patent. Back filed an adverse claim, and the suit was brought to determine the rights of the parties. A demurrer to the complaint was sustained. Judgment passed for defendants on failure to answer. The appeal was prosecuted from the judgment.

It was held by the supreme court of Idaho, reversing the judgment:

(1) That a tunnel location is a "mining claim," and may protect its rights by adversing application for patent to ledges asserted to have been located on the line of said tunnel subsequent to the tunnel location;

(2) It is evident that, in enacting section twenty-three

1 Hope M. Co. v. Brown, 11 Mont. 370.

22 Idaho, 386.

hundred and twenty-three of the Revised Statutes, congress intended to withdraw from exploration for lodes not appearing upon the surface so much of the public domain as lay upon the line of the tunnel;

(3) The tunnel claimant has a right to the possession, for prospecting purposes, of the area in dispute, and to show that the respondent's location was upon the line of his tunnel.

No attempt is made to define what is meant by the line of the tunnel.

·N.

2487. Judge Hallett's views.-The tunnel law came before Judge Hallett in the case of Rico-Aspen Cons. M. Co. v. Enterprise M. Co.1 His decision is accompanied with a diagram, which we herewith reproduce (figure 23). The facts were substantially as follows:

The Rico-Aspen Company asserted title to three mining claims: the Vestal, located in 1879; Contention, January

153 Fed. 321.

MM