SEC. 2322. The locators of all mining locations heretofore made or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface-lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the endlines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another. This section, like those which have preceded, refers only to the possessory title of citizens and inchoate citizens of the U. S. to lodes and surface ground. Locators' rights of possession and enjoyment. 10 May, 1872, c. 152, s. 3, v. 17, p. 91. See §§ 2320, 2324. Act of 1866 granted one vein only. This section grants all veins whose apex is within surface boundaries. Departure of veins from side lines. Flagstaff Case. Land Office construction of statute. Different con- Colorado Terrible Case. The Act of the 26th of July, 1866 (§§ 2, 4) gave to any authorized person in possession of a claim (provided he conformed to the requirements of that Act, and the local laws, customs, and rules of miners) the right to apply for and receive a patent for the surface ground of a claim containing a vein, " together with the right to follow such vein or lode with its dips, angles, and variations, to any depth, although it may enter the land adjoining, which land shall be sold subject to this condition." But it will be noticed that this section goes much further, and is more liberal, inasmuch as it grants all veins, lodes, and ledges (whether discovered or not), the top or apex of which lies inside the surface lines extended vertically downwards, while the Act of 1866 only granted one vein or lode, leaving the U. S. as the owner of all other veins or lodes within the same surface ground that were unoccupied by some one else. By the Common Law, he who owned the surface was entitled to all minerals underlying it, to the centre of the earth, but under this law it is evident that a person other than the surface owner may own and work lodes or veins underlying without paying the surface owner compensation therefor. Under this section we may consider the important question of departure of veins from the side lines. The decisions of the Land Office, and the words of the patents issued by them, shew that the vein and not the surface is the material part of the grant (L. 0. Jan. 1870), the surface being worthless in itself, except in connection with the underlying vein (Flagstaff Case, L. O. Nov. 10, 1871; Dec. 1872). In the Flagstaff Case the surface ground for which the patent issued lies at right angles to the course of the vein conveyed thereby (the Flagstaff patent was, however, granted under the Act of 1866), and the Courts of Utah territory have held that it is not necessary that the surface ground conveyed by the patent should exactly overlie the lode. But, in Colorado, in the cases of the Hercules and Zillah lodes, the Courts decided that the survey lines were controlling monuments, and that nothing was conveyed outside of them, and this was the view the same Courts took in granting an injunction against the Colorado Terrible Mining Company, and in the case of Streeter v. McMurdy. This conflict of judicial opinion has not yet been set at rest by any decision of the Supreme Court of the U. S., but, looking to the wording of the Act of 1866, it would seem that the Land Office and the Utah decisions are most probably correct, otherwise no effect is given to the words of the Act which convey the lode with all its dips, angles, and variations, although such veins, lodes, or ledges, may so far depart from the perpendicular as to extend outside the vertical side lines of such surface locations (Act of 1866, s. 2). These words of the section contemplate the possibility, or probability, of the lode entering the land adjoining, or, in technical language, "dipping;" hence, the outside claims are either subject to an easement, in respect of the lode which dips, or there is a reservation of the estate of the outside claim (Morrison, p. 66); and in fact all adjoining claims are sold, and patents issued therefor, subject to this reservation or easement (L. O. Jan. 1870). tunnels, rights of. 10 May, 1872, c. 152, s. 4, v. 17, p. 92. See § 2320. SEC. 2323. Where a tunnel is run for the development Owners of 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. TUNNEL RIGHTS. When a tunnel is run for the development of a vein, or the discovery of mines it is the practice, where a "blind" lode is intersected by the tunnel, for the discoverer to locate and record the lode upon the surface as an independent claim, and such lodes are usually described as Tunnel Lode, No. 1, &c., in the order in C which they are cut, thereby avoiding some risks as to title, which arise from the wording of this section. The word "face" is held by the Land Office to mean the first working face, or the point at which the tunnel first enters cover (L. O. Instructions). The "line" of a tunnel is its width only, and this line must be marked on the surface by stakes and monuments (L. O. Sept. 1873). When a lode is struck or discovered in a tunnel, the tunnel owners may locate their claim of 1500 feet all on one side of the point of discovery or intersection, or partly on one side and partly on the other side thereof (L. O. Sept. 1872); but in all cases to entitle tunnel owners to hold possession of lodes in advance of the face, it is clear that reasonable diligence must be used (Corning v. Pell, 2 Col. Ter.). By an Act passed on the 11th of February, 1875, this Act is amended so that work done and money spent in running a tunnel is equivalent to money spent on the surface of the lode, and therefore where "blind" lodes are discovered in the tunnel, and the surface ground above them is located and recorded, development and expenditure on the surface are not necessary. (See p. 63.) SEC. 2324. 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 loca10 May, 1872, tion, manner of recording, amount of work necessary to c. 152, s. 5, v. 17, p. 92. hold possession of a mining-claim, subject to the followSee §§ 2331, 2332. ing 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. On each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been Regulations made by miners; expenditures. Contribution among co owners. issued therefor, not less than one hundred dollars' worth of labour shall be performed or improvements made during each year. On all claims located prior to the tenth day of May, eighteen hundred and seventy-two, ten dollars' worth of labour shall be performed or improvements made 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 re-location in the same manner as if no location 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 labour 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 the expenditure required by this section, his interest in the claim shall become the * Time extended to 1st Jan. 1875 by an Act of 6th June, 1874. |