CHAPTER IV. TUNNEL CLAIMS. ARTICLE I. II. III. INTRODUCTORY. MANNER OF PERFECTING TUNNEL LOCATIONS. RIGHTS ACCRUING TO THE TUNNEL PROPRIETOR BY VIRTUE ARTICLE I. § 467. Tunnel locations prior to the enactment of federal laws. INTRODUCTORY. 468. The provisions of the federal law. § 467. Tunnel locations prior to the enactment of federal laws.-Tunnel locations, or, as they are sometimes called, "tunnel-sites," occupy a unique position in practical mining upon the public domain. They were not unknown during the period antedating the enactment of congressional mining laws. The discovery of a new mineral belt frequently gave birth to local rules upon the subject of tunnels, and it was by no means an uncommon occurrence for tunnel locations to be made on the four slopes of a mountain, their projected lines running into the hill from every conceivable point of the compass, and at different elevations above the mountain's base, from one hundred to several thousand feet. The practical development of the mines was, as a rule, from surface discoveries on the crest of the mountain, or its benches and sloping ridges. Strife or litigation between surface locators and tunnel proprietors rarely, if ever, arose, for the simple reason that, according to the popular view, priority of discovery, whether from the surface or in the tunnel, established a priority right. In many localities, the life of the camp was short, and most of the tunnel projects began and ended with the staking of a line, the incorporation of a company with a fabulous capital, and the tunnel bore barely entering under cover. We think it may be fairly stated that prior to any legislation upon the subject by congress, in popular estimation, the purpose of a tunnel location was that of discovery of blind veins, or deposits, whose existence it might be difficult, if not impossible, to establish by surface exploration, and that such discovery, by means of the tunnel, should be treated as the equivalent of one made from the surface. As to questions of priority, it was a mere race of diligence. Rights upon the discovered lode dated from the discovery in the tunnel, and not from the date of the tunnel location. Surface prospecting within the vicinity of the projected tunnel line was not inhibited. It is possible that the chances of a successful discovery in some formations were in favor of the tunnel method and this may have been the inducement for projecting it, but the tunnel locator's privilege was not understood to be an exclusive one within any defined surface area. We do not assert that this was the universal rule, or that it was of such general observance as to lead to the inference that congress had it in mind when it legislated upon the subject. We do not know that to have been the fact. We have strong convictions upon the subject, but it would be difficult to assert that in construing congressional legislation, as we are about to do, these antecedent conditions, popular theories, and local experiences should, or could, legally be resorted to as an aid to interpretation. Dr. R. W. Raymond, while acting as the government's special commissioner for the collection of min ing statistics in the states and territories west of the Rocky Mountains, refers to the "tunnel fever" which flourished in Clear Creek county, Colorado, and other outlying districts in that state, and presented some views on the subject which in the light of subsequent experiences are quite prophetic.1 In an able article contributed to the "Mineral Industry," the same gentleman reviews the history of tunnel legislation and comments in an interesting and logical way upon some of the vices and inherent defects in the legislation, as well as upon some of the embarrassments surrounding the practical application of the law in the light of its more modern interpretation by the courts. In construing the first mining laws of congress, which were but the crystallization of the miners' rules and customs theretofore in force, the courts had for their guide many adjudications made during the earlier history of mining in the west, enabling them to catch the spirit of these local regulations and interpret the federal law in the light of such precedents. But as to rights flowing from tunnel locations, there were practically no judicial precedents. The "tunnel fever" broke out after the passage of the act of 1866, but too near the passage of the act of 1872 to give opportunity for judicial interpretation. The tunnel laws now under consideration were incorporated in the act of May 10, 1872, and in construing them the courts have been compelled practically to break new ground. The net results thus far reached will be explained and illustrated in the succeeding sections. 1 "Mineral Resources West of the Rocky Mountains" (1871), p. 322. 2 Vol. vi, p. 681 (1897). § 468. The provisions of the federal law. We are not at present concerned with the act of congress of February 11, 1875, providing that development work performed in running a tunnel shall be estimated as work done upon the lodes with like effect as if done from the surface. This act has no particular bearing upon the subject now under consideration. We are now called upon to construe section four of the act of May 10, 1872, which is embodied in the Revised Statutes, and is as follows: § 2323. Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes, within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line of such tunnel of veins or lodes, not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid; but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel. Concerning this legislation, Dr. Raymond very appropriately remarks:— This is the only provision of the Revised Statutes concerning tunnel rights. Perhaps it is fortunate that there are no more. Certainly this one is ambiguous and perplexing enough, and additional ones of the same character would have made confusion worse confounded. . 3 18 Stats. at Large, p. 315; Comp. Stats. 1901, p. 1427; 5 Fed. Stats. Ann. 21. As an amendment to the act of 1866, it is, taken by itself, simple and clear enough, though perhaps not wise. As a part of the act of 1872, it is inconsistent, incomplete, and mischievous." These caustic epigrams express the situation, but afford no substantial aid in the interpretation of the law. They suggest difficulties almost insurmountable, but give no light upon the rule of construction. § 472. Acts to be performed in acquiring tunnel rights. The statute is silent as to the manner in which a tunnel location is to be perfected. It is not a mining claim, although it has sometimes been inaccurately called one. It is simply a means of exploration. This subject is left to miners' customs and state statutes. It is also to some extent at least regulated by rules prescribed by the commissioner of the general land office, under the direction of the secretary of the interior, the authority for such regulation being found in the provisions of the Revised Statutes. These rules, prescribed in pursuance of 4 Monograph, "Tunnel Rights under the United States Mining Law,” Mineral Industry, vol. vi, p. 680. 5 Creede & Cripple Creek M. & M. Co. v. Uinta T. M. & T. Co., 196 U. S. 337, 355, 357, 25 Sup. Ct. Rep. 266, 49 L. ed. 501. • Creede & Cripple Creek M. & M. Co. v. Uinta T. M. & T. Co., 196 U. S. 337, 355, 25 Sup. Ct. Rep. 266, 49 L. ed. 501. 7 § 2478; Comp. Stats. 1901, p. 1586; 6 Fed. Stats. Ann. 529. |