A special demurrer was interposed upon the following grounds:

(1) Insufficient description of the property sought to be recovered;

(2) Insufficient description of the lodes for which possession was asked;

(3) Failure to show any valid subsisting pre-emption or location of the tunnel site;

(4) That the claim of plaintiff to a strip of ground five thousand feet in length by five hundred feet in width as a tunnel site is unwarranted and unprecedented, and was not, at the date of said pretended location, nor at any subsequent time, authorized by any local, state, or congressional law.

The court below sustained the demurrer. The supreme court of the United States, in reversing the judgment, held:

(1) That the description in the complaint was sufficient, as it enabled the sheriff, in case of recovery, to execute a writ of possession, or a surveyor to ascertain the exact limits of the location;

(2) As to the second ground of demurrer, the court held, that though the lodes alleged to be embraced within the tunnel site location are not each separately described, the statement in the complaint that all the lodes in the tunnel claim have been worked and mined, comprehends every part of the property for the recovery of which the action is brought;

(3) That the claim for five thousand feet in length was void only as to the excess over three thousand feet;

(4) The tunnel location having been made prior to the passage of the act of May 10, 1872, the rights flowing therefrom are to be determined under the local rules and customs in force at the time the location was made.

It is manifest that this decision sheds no light upon the subject. We refer to it for the reason, that in several of

the decisions heretofore cited, it was stated that the conclusions there reached were not opposed to the doctrine of the Glacier Mountain-Willis case. This is quite true, for the simple reason, that the questions which we are now considering were not involved, discussed, or decided.

2490. Opinions of the land department.- We note the following views expressed by the land department:—

(1) A claim under a tunnel location is a mining claim, and should adverse a junior applicant for patent for a lode within its claimed limits;1

(2) Prospecting for lodes not previously known to exist is prohibited on the line of the tunnel (i. e. its width) while work on the tunnel is being prosecuted with reasonable diligence;2

(3) In no case can a tunnel proprietor record a claim so as to absorb the actual or constructive possession of other parties, on a lode which had been discovered and claimed outside the line of the tunnel before the discovery thereof in the tunnel.3

We have heretofore noted the decisions of this department defining the line of the tunnel to be the width of the bore.

2 491. Conclusions. It is quite manifest, that the deci sions and rulings heretofore reviewed are so conflicting, and the results reached so divergent, that it is impossible to for mulate any rule which will be acceptable to all the courts. The questions involved are essentially federal in their nature, and will only cease to be so when the supreme court of the United States shall have finally determined them."

1 Secretary Kirkwood, Bodie Tunnel & M. Co. v. Bechtel Cons-, L. D. 584.

231.

2 Commissioner Williamson, In re David Hunter, Copp's Min. Lands,

3 Commissioner Drummond's letter to Chaffee, Copp's Min. Dec. 144. See, also, Corning Tunnel Co. v. Pell, 3 Copp's L. O. 130.

See, ante, ? 473.

5 State of Kansas v. Bradley, 26 Fed. 289; Bluebird M. Co. v. Largey, 49 Fed. 291.

1

The conclusions reached by the state court of last resort in construing the statutes of the state within which it exercises jurisdiction, if the rule of interpretation has been uniform and there is no conflict with the federal constitution or laws, are binding upon all other courts, state and federal. But its decisions construing federal statutes, have, as such, no binding force outside of courts of that particular state. They may be accepted as precedents if the reasoning upon which they are based commends itself to other tribunals, but not otherwise. The decisions of the federal courts upon the construction of federal statutes are, when the construction has been approved by the supreme court of the United States, unquestionably binding upon all tribunals. But the state courts are not compelled to follow a rule of interpretation adopted by a circuit court, or a circuit court of appeals of the United States. In fact, the decision in one circuit is not necessarily controlling in other circuits. While, in cases arising out of infringement of patents, comity requires that a rule announced in one circuit, involving a particular patent and its infringement, shall be followed in all other circuits where the same patent is involved, we do not understand that this doctrine extends to any other class of cases. So we cannot say, that either the supreme court of a state or the circuit court of appeals are courts of unequal dignity, and that a precedence should be given to the decisions of one over the other, even upon federal questions.

Therefore, while the true rule of interpretation of the law, as expounded in the several jurisdictions, is left in a state of uncertainty, we are persuaded that the field of discussion is an open one, and we are at liberty to investigate on independent lines, or to select the rule announced in one court in preference to another. In doing so, we may not be able to add anything to the weight of the argument presented in favor of the rule accepted, or to satisfactorily disclose inherent infirmities in the reasoning applied to that with which we may not coincide. If we do not add

anything to the development of the subject, or demonstrate that there are cogent reasons for the views adopted by us beyond those already advanced and considered by the several courts, our arbitrary sanction given to one rule or the other will not turn the scales, although they be ever so evenly balanced.

We have heretofore observed, that the courts and the land department have reached a harmonious conclusion as to what is meant by the line of the tunnel. It is the width marked by the exterior sides of the tunnel throughout the length of, and in the direction claimed.' Recurring to the language of the statute: "Locations on the line "of such tunnel of veins, or lodes, not appearing on the "surface, made by other parties after commencement of the "tunnel and while the same is being prosecuted with reason"able diligence, shall be invalid.”

It thus appears that locations upon the surface contiguous to the line are not inhibited. They may therefore be lawfully made anywhere, so that the lines of the location do not intersect the line of the tunnel. What was the object of this inhibition? A valid perfected lode mining loca tion is a grant of the exclusive right of enjoyment of the surface and everything within vertical planes drawn downward through the surface boundaries, subject only to the extralateral right of outside apex proprietors to pursue their veins underneath such surface.

the

If a mining location could be permitted to cross line of the tunnel, it would effectually cut off the tunnel claimant's rights to drive his tunnel through and beyond it. Such a location, if permitted, made across the tunnel line a short distance from its face, would effectually deprive the tunnel locator of a right to explore, by means of his tunnel, any considerable portion of the mountain. In this aspect of the case, the estate given to the tunnel locator is in the nature of an easement, or right of way, to the entire length claimed for discovery purposes.

1See, ante, 2 473.

We are aware, that it is contended that any mining proprietor has a right to tunnel underneath his neighbor, and that this class of easements is granted by local rules and customs independent of questions of priority. Whatever may have been the rule sanctioned by local regulations during the period when all engaged in mining on the public lands were technically trespassers, since a perfected mining claim has been given the dignity of an estate of freehold no such right exists. Easements and rights of way may be acquired over the public domain, but after it passes into private ownership, no such rights can be asserted, except for public purposes or for limited private uses, if provided for by the state constitution. In such cases, unless consent is obtained, condemnation proceedings are necessary. Therefore, it is not unreasonable to suggest, that congress intended to withdraw the line of the tunnel from any subsequent appropriation, that the tunnel proprietor might have a clear right of way throughout the entire length claimed. Congress might have accomplished the same result by permitting locations to be made regardless of the tunnel line, preserving to the tunnel claimant a right of way; but it adopted the more certain and direct. method of reserving a strip the width of the tunnel for the length claimed.

It will be observed, that the privilege granted, based upon a discovery in the tunnel, is not only granted to one who locates a tunnel site for discovery purposes, but the same rights are given to those who develop located claims. by means of a tunnel. Let us illustrate: A. locates a mining claim based upon a surface discovery. Its position is advantageous for development by tunnel. He projects and locates such a tunnel, and thereafter work done therein is considered as work performed upon the located claim. If the construction of the act announced by the circuit court of appeals is correct, he not only perpetuates his estate in the located lode by prosecuting his tunnel, but is

1See, ante, ?? 252-264. See, post, ch. viii., of this title.