specific boundaries within which prospecting for lodes not previously known to exist is prohibited while work on the tunnel is being prosecuted with reasonable diligence. the tunnel location. Corning Tunnel & M. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612. 4. Prospecting within the lines of a tunnel claim for lodes not previously known to exist is prohibited while work on the tunnel is prosecuted. David Hunter, 5 C. L. O. 130. 5. Section 2323, United States Revised Statutes, does not authorize the location as a tunnel claim of a tract of land fifteen hundred feet by three thousand feet. Corning Tunnel & M. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612. 24. At the time of posting notice and marking out the lines of the tunnel as aforesaid, a full and correct copy of such notice of location defining the tunnel claim must be filed for record with the mining recorder of the district, to which notice must be attached the sworn statement or declaration of the owners, claimants, or projectors of such tunnel, setting forth the facts in the case; stating the amount expended by themselves and their predecessors in interest in prosecuting work thereon; the extent of the work performed, and that it is bona fide their inten- 6. A tunnel site cannot exceed three thoution to prosecute work on the tunnel so sand feet in length with width of the actual located and described with reasonable dili-width of the tunnel. Com'r to John Hunter, gence for the development of a vein or lode, or for the discovery of mines, or both, as the case may be. This notice of location must be duly recorded, and, with the said sworn statement attached, kept on the recorder's files for future reference. 25. By a compliance with the foregoing much needless difficulty will be avoided, and the way for the adjustment of legal rights acquired in virtue of said section 2323 will be made much more easy and certain. 26. This office will take particular care that no improper advantage is taken of this provision of law by parties making or professing to make tunnel locations, ostensibly for the purposes named in the statute, but really for the purpose of monopolizing the lands lying in front of their tunnels to the detriment of the mining interests and to the exclusion of bona fide prospectors or miners, but will hold such tunnel claimants to a strict compliance with the terms of the statutes; and a reason able diligence on their part in prosecuting the work is one of the essential conditions of their implied contract. Negligence or want of due diligence will be construed as working a forfeiture of their right to all undiscovered veins on the line of such tunnel. III. DECISIONS. 1. Before a tunnel claimant under section 2323, United States Revised Statutes, acquires any right to a lode, it must be discovered in the tunnel. Corning Tunnel & M. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612. 2. The "line of tunnel" under section 2323, United States Revised Statutes, is the strip of land between the projected side lines of the tunnel. Hope M. Co. v. Brown, 7 Mont. 550; 19 Pac. Rep. 218. (Overruled in 11 Mont. 370; 28 Pac. Rep. 732.) 3. The "line of tunnel," as used in section 2323, United States Revised Statutes, means the space between the lines of the sides of the tunnel, protracted, not the entire width of 5 C. L. O. 34. 7. Notice and location of a tunnel claim are required only where blind lodes are sought. Henry M. Hoyt, 8 C. L. O. 70. 8. When in running the tunnel a lode is struck, the same proceedings are required as in cases of discovery from the surface relative to the location of the discovered lode. David Hunter, 5 C. L. O. 130; Rico-Aspen Cons. M. Co. v. Enterprise M. Co., 53 Fed. Rep. 321; Hope M. Co. v. Brown, 7 Mont. 550; 19 Pac. Rep. 218. (Overruled in 11 Mont. 370; 28 Pac. Rep. 732.) 9. Location on the surface, based on a tunnel discovery, will relate back to the location of the tunnel claim, and cut out an intervening surface location of the same lode. RicoAspen Cons. M. Co. v. Enterprise M. Co., 53 Fed. Rep. 321. 10. A lode discovered in a tunnel run in accordance with the provisions of section 2323, United States Revised Statutes, and of which a location notice was posted at the mouth of the tunnel, and duly recorded, need not be located by the discoverer on the surface to protect his rights, and a subsequent locator on the surface acquires no rights. Ellet v. Campbell, 18 Colo. 510; 33 Pac. Rep. 521. 11. All locations made within a tunnel claim, subsequent to its location, are subject to the inchoate rights of the tunnel claimant. Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200. 12. Patent will not issue for a claim on the projected line of a tunnel held under section 2323, United States Revised Statutes, but patent proceedings will be suspended to await further development in the tunnel or abandon ment of the tunnel claim. Back v. Sierra Nevada Cons. M. Co., 2 Idaho, 386; 17 Pac. Rep. 83. 13. A tunnel claimant need not adverse a lode applicant whose claim lies within fifteen hundred feet of the line of the tunnel where there is no apparent conflict of rights, and is not estopped by failure so to adverse from claiming fifteen hundred feet along any lodes subsequently discovered in his tunnel. Enter prise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200. (Refusing to follow Corning Tunnel & M. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612.) 14. A tunnel claimant has no cause for adversing the application of a lode claimant who has made a discovery outside of the line of the tunnel, and whose location lies across the line of tunnel, unless the lode has been discovered in the tunnel. Hope M. Co. v. Brown, 7 Mont. 550: 19 Pac. Rep. 218. This decision was overruled in the same case (11 Mont. 370; 28 Pac. Rep. 732), wherein it was held that patent proceedings by the lode claimant will be suspended until development of the lode in the tunnel or abandonment of the tunnel right, and (semble) the lode claimant may be restrained from taking ore from the line of the tunnel in the meantime. (Refusing to follow Corning Tunnel & M. Co. v. Pell, 4 Colo. 509; 14 Mor. Min. Rep. 612.) 15. A tunnel claim should be protected by an adverse, being a mining claim. Back v. Sierra Nevada Con. M. Co., 2 Idaho, 386; 17 Pac. Rep. 83; Bodie Tunnel & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584. See Tioga Cons. M. Co., 8 C. L. O. 88. 16. Parties forfeit all right to undiscovered veins on the line of their tunnel by a failure to prosecute work on their tunnel for six months. Com'r to John Hunter, 5 C. L. O. 34. 17. Where "the complaint alleges that a valid and legal location of a tunnel (claim) was made by persons under whom the plaintiff claims, and the plaintiff held possession of the same for more than five consecutive years prior to the ouster by the defendants, and paid all the taxes during that period legally or otherwise assessed upon said property," the plaintiff, under the Colorado laws, would have the right to the premises in dispute, superior to any other claim except that of the government. Glacier Mountain S. M. Co. v. Willis, 187 U. S. 471. | 18. On the discovery of a lode in the tunnel within three thousand feet of the face thereof, the tunnel claimant may locate fifteen hundred feet of such lode, subject only to the requirement that his discovery must be covered by his claim. Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200. 19. A miner has no right to run a tunnel through a non-mineral portion of a town lot to work a lode that was known to exist at the date of town site entry, though he may have the right to work the mine. Richards, 73 Cal. 477; 15 Pac. Rep. 105. Dower v. 21. A tunnel location five thousand feet long is not void because it covers more than three thousand feet in length, but would be good to the extent of three thousand feet at least. Glacier Mtn. S. M. Co. v. Willis, 127 U. S. 471. 22. The timber on a tunnel site belongs to the tunnel owner. Com'r to John Hunter, 5 C. L. O. 34. 23. The act of February 11, 1875, credits to a lode claim the expenditures made in running a tunnel for the purpose of developing the lode owned by the proprietors of the tunnel. George S. Dodge, 6 C. L. O. 122. 24. The expenditures may be made from the surface or in running a tunnel for developing a lode. Com'r to E. D. Coleman, May 27, 1874, 1 C. L. O. 34. 25. A tunnel on one of several claims cannot be counted as work for the benefit of the group if, in fact, it does not so tend. McCormick v. Baldwin, 104 Cal. 227; 37 Pac. Rep. 903. 26. An expenditure of more than $1,500 by the owners of an adjoining mine on the portion of a tunnel running through the premises embraced in an application for patent is an expenditure under the mining law upon the claim applied for. George K. Willard, 4 C. L. O. 67. 27. Money expended in running tunnels to develop one or more lodes is considered as money spent on those lodes. Com'r to William S. Merrell, Dec. 13, 1877, 5 C. L. O. 5. 28. The annual expenditure upon mining claims may be made in running a tunnel. Com'r to John Hunter, 5 C. L. O. 34. Sutro Tunnel. 29. In applications for patent on the Comstock lode hearings may be had to determine whether they have been benefited or drained by the Sutro tunnel. Brunswick Mine, 3 C. L. O. 114. 30. The only patents for mining claims which should contain the conditions specified in the act of July 25, 1866, are such as may be issued for claims on the Comstock lode. Sutro Tunnel Co., 3 C. L. O. 34. 31. Lands west of the Comstock lode are included in the grant to A. Sutro. Sutro Tunnel Co., 8 C. L. O. 54. 32. Annual expenditures on mines within limits of grant (Sutro Tunnel) are not required. Sutro Tunnel, 8 C. L. O. 54. 33. What is the Comstock lode? Question discussed. Sutro Tunnel, 3 C. L. O. 34. POSSESSORY TITLE. MINING DISTRICTS. I. THE STATUTE. II. REGULATIONS. III. DECISIONS. I. THE STATUTE. by the tenth day of June, eighteen hundred and seventy-four, and each year thereafter, for each one hundred feet in length along the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no loca tion of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location. Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion of interest in the claim shall become the propthe expenditure required by this section, his erty of his co-owners who have made the required expenditures. 17 Stat. 92: 18 Stat. 61; 19 Stat. 52; 21 Stat. 61; sec. 2324, U. S. Rev. Stat. II. REGULATIONS. 12. It is provided by the Revised Statutes that the miners of each district may make rules and regulations not in conflict with the laws of the United States, or of the State or Territory in which such districts are respectively situated, governing the location, manner of recording, and amount of work necessary to hold possession of a claim. They likewise require that the location shall be so disaries may be readily traced. This is a very tinctly marked on the ground that its boundimportant matter, and locators cannot exercise too much care in defining their locations at the outset, inasmuch as the law requires that all records of mining locations made subsequent to May 10, 1872, shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim. The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining-claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year. On ail claims located prior to the tenth day of May, eighteen hundred and seventy-two, ten dollars' worth of labor shall be performed or improvements made | King, 1 Pac. Rep. 755. On III. DECISIONS. 1. What are the laws of a mining district is a question of fact for the General Land Office. Parley's Park Silver M. Co. v. Kerr, 130 U. S. 256. 2. Mining district rules are a part of the law of the land. Morton v. Solambo M. Co., 26 Cal. 527; 4 Mor. Min. Rep. 463; Gropper v. 3. When there are written rules or regula- | the courts if they are acknowledged by the tions of a mining district, parol evidence can- miners. Gore v. McBrayer, 18 Cal. 582; 1 not be given of a mining custom. Ralston v. Mor. Min. Rep. 645. Plowman, 1 Idaho, 595; 5 Mor. Min. Rep. 160. 4. Where written district regulations are of doubtful force, parol evidence of local customs is admissible. Colman v. Clements, 23 Cal 245; 5 Mor. Min. Rep. 247. 5. The book containing local mining regulations is competent evidence under section 504, Civil Practice Act. Orr v. Haskell, 2 Mont, 225; 4 Mor. Min. Rep. 492. 6. The rules and customs of a mining district may be proven by a written rule if such exists, or by any competent evidence of a custom. Doe v. Waterloo M. Co., 70 Fed. Rep. 455. 7. While the local record of a mining com munity is the best evidence of the rules and customs governing mining interests, it is not the best or only evidence of priority or extent of actual possession. Campbell v. Rankin, 99 U. S. 261; 12 Mor. Min. Rep. 257. 8. Evidence of the local mining rules must consist of a copy from the proper custodian, who must be shown to be empowered to give certified copies thereof, and to certify that such was a copy of the laws then in force in such district. Roberts v. Wilson, 1 Utah, 292; 4 Mor. Min. Rep. 498. 9. Mining district rules must be offered in evidence as a whole. English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202. 10. In the absence of a statute, a purported copy of mining district regulations must be shown by proper testimony to have come from the proper custody and be other. wise proven to be what it purports to be, and cannot be rendered admissible by submission of ex parte affidavits. Roberts v. Wilson, 1 Utah, 292; 4 Mor. Min. Rep. 498. 11. Proof of a record of a location is inadmissible unless a record is shown to be provided for by local statute or regulations. Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450. 12. District rules to be obligatory upon all must be clear and specific, not optional. Flaherty v. Gwinn, 1 Dak. 509; 12 Mor. Min. Rep. 605. 13. The regularity of the adoption of mining district laws will not be inquired into by 14. After adoption, a mining district regulation is presumed to have continued in force, in the absence of a showing to the contrary. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. 15. The existence and tenor of mining district regulations and customs are questions for the jury. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 16. The existence of a mining district rule or custom is a question of fact to be tried by Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. the jury. North Noonday M. Co. v. Orient M. 529; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. 17. The existence and force of mining district regulations are questions of fact for the jury. Harvey v. Ryan, 42 Cal. 626; 4 Mor. Min. Rep. 490. 18. The existence of mining district regulations is a question of fact. Parley's Park S. M. Co. v. Kerr, 130 U. S. 256; Sullivan v. Hense, 2 Colo. 424; 9 Mor. Min. Rep. 487. 19. The existence of miners' rules or regulations are matters of fact to be proven in 449; 33 Pac. Rep. 659; Golden Fleece G. & S. the usual manner. Poujade v. Ryan, 21 Nev. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450; King v. Edwards, 1 Mont. 205; 4 Mor. Min. Rep. 480; Sullivan v. Hense, 2 Colo. 424; 9 Mor. Min. Rep. 487; Harvey v. Ryan, 42 Cal. 626; 4 Mor. Min. Rep. 490. 20. The existence of mining district regulations or customs must be proven like any other fact, by the best evidence, and parol testimony as to a custom should not be admitted when it is shown that there are duly recorded regulations. Ralston v. Plowman, 1 Idaho, 595; 5 Mor. Min. Rep. 160. 21. The existence of mining district regulations has received legislative sanction in Montana. Orr v. Haskell, 2 Mont. 225; 4 Mor. Min. Rep. 492. 22. To be of effect, a mining district regulation must be in accordance with the laws of the United States and of the State; must have been established and must be in force, as it does not, like a statute, acquire validity by its mere enactment, but from the custom- | any higher law, are recognized by legislative ary obedience and acquiescence of the miners, after its enactment. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 322; 9 Mor. Min. Rep. 529. 23. Mining district regulations, to be considered, must be shown to be in force. Harvey v. Ryan, 42 Cal. 626; 4 Mor. Min. Rep. 490; North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529. 24. A mining district regulation must be in force at the time in order to be of effect. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. 25. Whether or not a miner's rule or custom is in force at a given time is a question of fact for the jury. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. 26. Whether or not a mining district rule or regulation has been established and is in force is a question of fact for the jury. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529. 27. It is presumed that the written laws of a mining district are in force, and any custom which conflicts with 'them must be clearly proved. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 28. Mining district rules may be shown to be in force by custom or usage, without proof of formal adoption, or of a written record. Flaherty v. Gwinn, 1 Dak. 509; 12 Mor. Min. Rep. 605. 29. A custom, reasonable in itself and generally observed, will prevail against a written regulation fallen into disuse. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Harvey v. Ryan, 42 Cal. 626; 4 Mor. Min. Rep. 490. 30. The extent of a mining district may be changed by those who created it, if vested rights are not thereby interfered with. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 31. The customs of miners constitute the common law of mining, and have been recognized by National and State statutes and by the courts. Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66. 32. The rules and customs of miners, reasonable in themselves and not in conflict with enactments and judicial decisions as a part of the law of this country. Rosenthal v. Ives, 2 Idaho, 244; 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324. 33. Congress recognized the possessory right of miners under the rules of the mining districts, but in doing this it has not parted with its title to the land. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183. 34. The mining customs of any particular mining district have the force and effect of the American common law on mining rights. laws, in other words, are laws. They form King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 35. To be recognized, a mining district rule must not only have been enacted or adopted, but must be recognized by the miners, and must be in force. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. and customs of miners the force and effect of 36. Congress has given to the local laws laws, so far as they are not in conflict with any superior law. McCornick v. Varnes, 2 Utah, 355; 9 Mor. Min. Rep. 505. See Steel v. St. Louis Sm. Co., 106 U. S. 447. 37. "The Land Department of the government and this court also, have always acted upon the rule that all mineral locations were to be governed by the local rules and customs in force at the time of the location, when such location was made prior to the passage of any mineral law by Congress." Glacier Mtn. S. M. Co. v. Willis, 127 U. S. 471. (Citing Jennison v. Kirk, 98 U. S. 453; Broder v. Natoma Water & M. Co., 101 U. S. 274; Jackson v. Roby, 109 U. S. 440; Chambers v. Harrington, 111 U. S. 350.) 38. Section 9 of the act of 1866 is not retroactive in its effect, and patents theretofore granted are not affected thereby. Said act merely recognized and confirmed rights held under local customs, laws and decisions. Union Mtn. M. Co. v. Ferris, 2 Sawy. 176; 8 Mor. Min. Rep. 90. 39. The Land Department cannot interfere in disputes between miners as to the affairs of a mining district. Its sole duty is to rec ognize the local laws when not in conflict with statutes, State and National. Com'r to J. N. Barker, Jan. 9, 1892. |