The clear import of the language of Rev.Stat. § 2320 is to
give to a tunnel owner, discovering a vein in the tunnel, a right
to appropriate fifteen hundred feet in length in that vein, which
right arises upon the discovery of the vein in the tunnel, dates by
relation back to the time of the location of the tunnel site, may
be exercised by locating the claim the full length of fifteen
hundred feet on either side of the tunnel, or in such proportion
thereof on either side as the locator may desire, and is not
destroyed or impaired by the failure of the owner of the tunnel to
adverse a previous application for a surface patent before the
discovery of the vein.
This case involves the construction of § 2323, Rev.Stat.,
which reads as follows:
Page 167 U. S. 109
"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 3,000 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."
The facts are these:
The Group tunnel site, under which the Enterprise Mining
Company, the defendant and appellant, claims the right to the ores
in controversy, was located on July 25, 1887, and the certificate
of location was filed in the office of the county clerk and
recorder of the county in which the location was made on August 29,
1887.
The Vestal lode mining claim, under which the plaintiffs (the
appellees) claim title, is based upon a discovery made on March 23,
1888. The claim was located on April 1, 1888, and the location
certificate was filed for record on April 3, 1888.
The situation of the properties is sufficiently disclosed by the
following diagram:
Page 167 U. S. 110
image:a
The ore in controversy is within the limits of the tract, A, B,
C, D. As to this tract, the two locations, the Vestal and Jumbo No.
2, conflict. The owners of the Vestal claim made application in
1890 for a patent. No adverse proceedings
Page 167 U. S. 111
were instituted by the defendant, and a patent for the claim was
issued on February 6, 1892. At the time of these proceedings no
discovery of a vein in the tunnel had been made. But on June 15,
1892, a vein was discovered 1,920 feet from its portal at the place
marked "Discovery" on the diagram. Immediately thereafter, the
defendant caused the boundaries of the claim Jumbo No. 2 to be
located upon the surface of the earth, and a certificate of
location to be duly recorded, in which it claimed 54 feet along the
vein to the northeasterly of the tunnel, and 1,446 feet
southwesterly. The position of this claim appears sufficiently on
the diagram. The portion of this vein within the limits of the
Vestal claim is about 750 feet from the line of the tunnel. This
suit was commenced in the Circuit Court of the United States for
the District of Colorado, on September 3, 1892, and was decided by
that court in favor of the plaintiffs. 53 F. 321. On appeal to the
court of appeals this decision was reversed, 66 F. 200, and the
case remanded for further proceedings. Thereupon the case was
brought here on a writ of certiorari.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It will be observed that so far as the mere location of the two
claims, Vestal and Jumbo No. 2, the former was prior in time to the
latter, and would, if there were no other facts, give priority of
right to the ore within the limits of the conflicting territory.
The tunnel was, however, located some eight or nine months before
the discovery and location of the Vestal claim, and the statute
gives to the owners of
Page 167 U. S. 112
such tunnel the right to "all veins or lodes within 3,000 feet
from the face of such tunnel on the line thereof, not previously
known to exist." By virtue of this section, therefore, the right of
the defendant to this vein was prior to that of the plaintiffs to
the mineral in their claim. In this respect, the circuit court and
the court of appeals agreed. The matters now in dispute are the
extent of that right and the effect of a failure to "adverse" the
application for a patent.
The right to this vein discovered in the tunnel is by the
statute declared to be "to the same extent as if discovered from
the surface." If discovered from the surface, the discoverer might,
under Rev.Stat. § 2320, claim "one thousand five hundred feet
in length along the vein or lode." The clear import of the
language, then, is to give to the tunnel owner, discovering a vein
in the tunnel, a right to appropriate 1,500 feet in length of that
vein. When must he indicate the particular 1,500 feet which he
desires to claim? Counsel for plaintiffs contend that it should be
done when, in the first instance, the tunnel is located, and that
if no specification is then made, the line of the tunnel is to be
taken as dividing the extent of the claim to the vein, so that the
tunnel owner would be entitled to only 750 feet on either side of
the tunnel; while counsel for defendant insist that he need not do
so until the actual discovery of the vein in the tunnel. We think
the defendant's counsel are right. In order to make a location,
there must be a discovery -- at least, that is the general rule
laid down in the statute. Section 2320 provides: "But no location
of a mining claim shall be made until the discovery of the vein or
lode within the limits of the claim located." The discovery in the
tunnel is like a discovery on the surface. Until one is made, there
is no right to locate a claim in respect to the vein, and the time
to determine where and how it shall be located arises only upon the
discovery -- whether such discovery be made on the surface or in
the tunnel. The case of
Erhardt v. Boaro, 113 U.
S. 527, is not in point, for there the preliminary
notice, which was made upon a discovery from the surface, simply
claimed "1,500 feet on this mineral bearing lode," without
further
Page 167 U. S. 113
specification as to boundaries or direction, and it was held
that that was equivalent to a claim for 750 feet in each direction
from the discovery shaft.
It may be true, as counsel claim, that this construction of the
statute gives the tunnel excavator same advantages. Surely it is
not strange that Congress deemed it wise to offer some inducements
for running a tunnel into the side of a mountain. At the same time,
it placed specific limitations on the rights which the tunnel owner
could acquire. He could acquire no veins which had theretofore been
discovered from the surface. His right reached only to "blind
veins," as they may be called -- veins not known to exist, and not
discovered from the surface before he commenced his tunnel. It
required reasonable diligence in the prosecution of his work. It
placed a limit in length (3,000 feet) beyond which he might not go
in his search for veins and acquire any rights under his tunnel
location, and the veins to which he might acquire any rights were
those which the tunnel itself crossed. Such is the import of the
letter to which counsel refer, from Commissioner Drummond, of date
September 20, 1872. Land Office Report, 1872, p. 60; 3 Copp's Land
Owner 130. It may be also noticed that in this letter the
commissioner affirmed the right of location on either side of the
tunnel, in these words:
"When a lode is struck or discovered for the first time by
running a tunnel, the tunnel owners have the option of recording
their claim of fifteen hundred feet all on one side of the point of
discovery or intersection, or partly on one and partly upon the
other side thereof."
We hold, therefore, that the right to a vein discovered in the
tunnel dates, by relation, back to the time of the location of the
tunnel site, and also that the right of locating the claim to the
vein arises upon its discovery in the tunnel, and may be exercised
by locating that claim the full length of 1,500 feet on either side
of the tunnel, or in such proportion thereof on wither side as the
locator may desire.
It was well said by the court of appeals in its opinion in this
case:
"The striking characteristic of this section of the act is that
it gives the right to the possession of certain
Page 167 U. S. 114
veins or lodes to the diligent owner of a tunnel before his
discovery or location of any lode or vein whatever, contingent only
upon his subsequent discovery of such veins in his tunnel. Veins or
lodes discovered on the surface or exposed by shafts from the
surface must be found before any right to them vests (§§
2, 5, Act May 10, 1872; §§ 2320, 2324, Rev.Stat.), but
this section declares that the owners of a tunnel, by simply
locating and diligently prosecuting it, without the discovery of
any vein or lode whatever,"
"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."
In
Hope Min. Co. v. Brown, 11 Mont. 370, 383, the
supreme court of that state observed:
"But has he [the tunnel owner] not an inchoate right in such
veins, which right is kept alive by prosecution of work on the
tunnel, according to law? This seems to be implied by the last
clause of the statute, that"
"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 the tunnel."
"The fact that said nonaction on the part of the tunnel claimant
should constitute an abandonment shows that it was the intent of
Congress to reserve such lodes from the commencement of the tunnel,
while it was prosecuted according to law."
See also Back v. Sierra Nevada Con.Min. Co., 2 Idaho
386.
The plaintiffs further contend that an act passed by the
Territorial Legislature of Colorado in 1861, Sess.Laws Col. 1861,
p. 166, Mills' Ann.St. § 3141, limits the right of the tunnel
owner to veins discovered in the tunnel to 250 feet on each side of
the tunnel. That section reads:
"Any person or persons engaged in working a tunnel within the
provisions of this chapter shall be entitled to two hundred and
fifty feet each way from said tunnel on each lode so
discovered."
But if that section has not been in terms repealed by the
Legislature of Colorado, it was superseded by the legislation
of
Page 167 U. S. 115
Congress as found in the Revised Statutes.
Ellet v.
Campbell, 18 Colo. 510.
The remaining question is whether the failure to "adverse" the
application for a patent for the Vestal claim destroyed or impaired
the rights of the defendant. We think not. Sections 2325 and 2326,
Revised Statutes, contain the legislation in reference to adverse
claims. These provisions are substantially that when a party makes
his application for a patent, if no adverse claim is filed within
sixty days from publication of notice, it shall be assumed that the
applicant is entitled to a patent; that, when an adverse claim is
filed,
"it shall be upon oath of the person or persons making the same,
and shall show the nature, boundaries, and extent of such adverse
claims, and all proceedings . . . shall be stayed until the
controversy shall have been settled or decided by a court of
competent jurisdiction, or the adverse claim waived. It shall be
the duty of the adverse claimant, within thirty days after filing
his claim, to commence proceedings in a court of competent
jurisdiction, to determine the question of the right of possession,
and prosecute the same with reasonable diligence to final judgment,
and a failure so to do shall be a waiver of his adverse claim."
Now, at the time the application for patent to the Vestal claim
was presented and the proceedings had thereon, the defendant knew
of no vein which would enable it to dispute the right of the owners
of the Vestal to a patent. The Vestal claim, it will be perceived,
runs parallel to the line of the tunnel, and is distant therefrom
some 500 feet. The presumption, of course, would be that the vein
ran lengthwise, and not crosswise, of the claim as located, and
such a vein would not, unless it radically changed its course,
cross the line of the tunnel. Whether it did or not, or whether any
other vein should be found in the tunnel which should cross the
Territory of the Vestal, was a matter of pure speculation, and
there would be no propriety in maintaining a suit to establish
defendant's inchoate right, and delay the Vestal claimants in
securing a patent on a mere possibility which might never ripen
into a fact. The obvious contemplation of the
Page 167 U. S. 116
law in respect to these adverse proceedings is that there shall
be a present, tangible, and certain right, and not a mere
possibility. Of course, the owners of the Vestal claim had notice,
from the fact of the location of the tunnel line, of the
possibilities which future excavations of the tunnel might develop,
and so they were not prejudiced by the failure to "adverse." And as
the defendant could not, in any suit which it might institute,
establish a certain adverse right, and as litigation in the courts
is based upon facts, and not upon possibilities, it seems to us
that nothing was to be gained by instituting adverse proceedings,
and therefore nothing lost by a failure so to do.
These are all the questions in the case. We are of opinion that
the decision of the court of appeals is right, and it is
Affirmed.
