1, 1888, and Compromise, November 18, 1889. The Hiawatha was not necessarily involved in the litigation, although it may be noted that its location was junior in point of time to the inception of the tunnel right.

The Enterprise Mining Company perfected its location of the Group tunnel in July, 1887; and in June, 1892, discovered and located the Jumbo II. claim, delineating it upon the surface as indicated on the diagram.

Said Judge Hallett, after quoting the language of section twenty-three hundred and twenty-three of the Revised Statutes:

"Clearly enough, this is a grant of lodes and veins on "the line of the tunnel, and the only difficulty is in ascer taining the extent of the grant. The supreme court of "this state (referring to Corning Tunnel Co. v. Pell) inter"prets the act as giving only so much of such veins and "lodes as may be in the tunnel itself. But this seems to "reduce the grant to a point of insignificance which de"prives the act of all force and meaning. Certainly, no "one would be at the trouble and expense of driving a "tunnel through a mountain for such small segments of "lodes, or veins, as may be in the bore of the tunnel. On "the other hand, respondents contend that the grant is "of the length of a surface location in any direction from "the line of the tunnel, and as stated, almost the entire "length of the Jumbo II. is in a southwesterly direction "from that line. Under this construction, the location of "a tunnel, followed by some lazy perfunctory work twice "in the year, will have the effect to withdraw from the public domain a tract three thousand feet square, or "something more than a half section of land; and this "in the face of the earlier declaration of the statute, "that no location of a mining claim shall be made until "the discovery of the vein, or lode, within the limits "of the claim located.' This view is so far inconsist"ent with the general policy of the law which forbids "the granting of large areas of valuable mineral lands "to one person or company, that it seems impossible to "accept it."

The conclusions reached by Judge Hallett may be thus summed up:

(1) The length of a location made upon a lode discovered in a tunnel is not fixed by the act of congress, but is left to local regulations;

(2) Without local regulation as to length of a claim founded on a discovery in a tunnel, nothing would pass but the line of the tunnel itself;

(3) The Colorado statute of 18611 is in force in Colorado, and secures to the tunnel locator two hundred and fifty feet each way from the tunnel, on all lodes discovered within the tunnel. As to the two hundred and fifty feet, the tunnel proprietor becomes the owner of the ledge, its location dating back to the inception of the tunnel right;

(4) As to the Vestal, owing to the priority of its location, decree passed for complainant. As to the Compromise and Contention, their location should, to the extent sanctioned by the state law, yield to the rights of the Jumbo II., which related back to the inception of the tunnel right.

2488. The doctrine announced by the circuit court of appeals, eighth circuit.- An appeal was taken from Judge Hallett's decree in the Rico-Aspen-Enterprise case, and the appellate court declined to adopt his views. When the case was before Judge Hallett, the facts as they are recited in the opinion fixed 1879 as the date of the Vestal location, prior in point of time to the location of the Group tunnel. For this reason it received but little attention, the reasoning of the judge being particularly addressed to the Contention and Compromise, which were junior in point of time to the tunnel location, although senior with reference to the tunnel discovery.

The case as presented to the appellate court seems to be somewhat different, the controversy apparently centering within the conflict area between the Vestal and Jumbo II., and the record seems to give to the former a date of

'Mills' Annot. Stats., 3141.

2 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. 201.

location, junior, in point of time, to the inception of the tunnel right.

The principles involved, however, are, of course, the same. The questions involved are presented by the appellate court in the following form:

(1) Are the owners of a valid tunnel mining claim under section twenty-three hundred and twenty-three of the Revised Statutes, who have discovered a blind vein in their tunnel and have duly located and claimed it, entitled, as against the owners of a lode mining claim located from the surface after the location of the tunnel site, but before the discovery of the vein in the tunnel, to the possession of the vein, or lode, thus discovered, when such vein was not known to exist prior to the location of the tunnel, but was first discovered in another lode mining claim before its discovery in the tunnel?

(2) If the owners of a tunnel mining claim are entitled to the possession of any portion of such a vein, to what extent are they entitled to it?

Another question was also presented and decided, which refers to the effect of a patent issued upon the junior surface location where the tunnel claimant failed to adverse. The discussion of this branch of the case will be deferred. until we reach, in another portion of the work, the subject of patent proceedings and the legal effect of a patent when issued.

As preliminary to a discussion of the principles involved, the court announced as follows:

"There is no tenable middle ground under this section. "between a holding that the diligent owner of a tunnel is "entitled to the possession of all blind veins he discovers "in his tunnel to the same extent along the veins as if he "had discovered them at the surface, and a holding that "by the discoveries and locations of others, subsequent to the commencement of his tunnel and before it reaches "the veins at all, he may be deprived of every portion of them, except possibly, the small segments within the bore "of the tunnel.”

66

The conclusions reached by the court may be thus stated:

(1) The location of a tunnel site, followed by the prosecution of work thereon with reasonable diligence, gives to the tunnel locator an inchoate right to all hitherto unknown or undiscovered veins which cross the line of the tunnel and are discoverable therein;

(2) That upon discovery in the tunnel, the tunnel locator will be entitled to fifteen hundred feet along the length of the vein, computed in either direction from his tunnel discovery, and that this right cannot be impaired by a discovery and location from the surface, junior, in point of time, to the inception of the tunnel right;

(3) The state statute of Colorado, fixing the limit in length at two hundred and fifty feet on each side of the tunnel line, is superseded by the act of congress;

(4) In determining what length on the vein is allowed to the tunnel discoverer, the court resorts to section twentythree hundred and twenty of the Revised Statutes, but decides that such section performs no other function in determining the rights of the tunnel discoverers.

The court also holds, that the inchoate right given to the tunnel locator only extends to veins that strike the line of the tunnel and are discovered in the tunnel. Others may discover and hold all veins within fifteen hundred feet of the line of the tunnel that do not strike or cross its lines, and all that do strike it that are not discovered in it.

The reasoning applied by the court which, in its judgment, justified the results reached may be thus epitomized:

(A) Section twenty-three hundred and twenty-three construes itself, and it is unnecessary to resort to public policy in aid of its interpretation;

(B) If the question of public policy is to be resorted to, the rights guaranteed to the tunnel locators are in accord with such policy, which is to encourage the discovery and development of the mineral resources of the country;

(c) The work of driving tunnels thousands of feet into the side of a mountain for the purpose of discovering a vein, or lode, that is not known to exist at all, is an extremely hazardous and expensive undertaking; that this is common knowledge, and congress must be taken to have had this knowledge when they enacted the law. They must have known that such a hazardous enterprise was not likely to be undertaken unless rewards commensurate with the risk and expense were offered.

It is to be added, by way of a side light on this decision, that the discovery on which the Vestal location was based was not upon the vein which was discovered in the tunnel. The right of the tunnel locator to the vein discovered in the tunnel, in so far as it was found within the Vestal location, was also defended on the ground that it was a cross lode, and that under the rule in Colorado, which we will discuss fully in a subsequent chapter, owners of cross lodes may follow their vein into, and underneath, even a prior location.

489. Tunnel locations before the supreme court of the United States.-The case of Glacier Mountain Silver Mining Company v. Willis' was an action of ejectment, wherein the plaintiff sought to recover possession of the Silver Gate tunnel claim, located in 1865, alleged to be five thousand feet long and five hundred feet wide, described by metes and bounds, which was alleged to embrace many valuable lodes, or veins, which had been discovered, worked, and mined by the plaintiff and his grantors. Possession and payment of taxes for a period in excess of the statute of limitations prescribed by the laws of Colorado were averred, together with a general allegation of ownership of the tunnel claim described. The ouster alleged was an entry by defendants upon the premises and into the tunnel, claiming said tunnel as the War Eagle, and the location of a lode claim across the tunnel, claiming a discovery in the tunnel of such lode, which they named the Tempest.

1127 U. S. 471.