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CHAPTER IV.

TUNNEL RIGHTS.

SECTION 38-Extent of tunnel claim, length.

39-Conflict with prior claims.

40-Width of tunnel site.

41-Labor and improvements on tunnel location.
42-Abandonment.

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§ 38. Extent of tunnel claim, Length.- From the language of the statutel it is quite plain that the exclusive right to locate claims on the line of the tunnel, extends 3,000 feet from the "face" of the tunnel. This term, face, is defined as synonymous with "breast."2 The term "breast" is frequently used among miners to signify that portion of the tunnel in which the work is prosecuted-the end opposite to the opening. But "face" is used in the statute to mean that point where the tunnel is commenced or goes under cover. And the length of the tunnel site is 3,000 feet from this point.

1 Rev. Stat. U. S. § 2323, ante, p. 15.

2 Morrison's Mining Rights.

3 Copp, 144; Corning Tunnel, &c. Co. vs. Pell, 4 Col. 507; post, Land Office Rules, 22.

§ 39. Conflict with prior claims.-The prior discovery which excludes the rights of the tunnel owners has reference to lodes and not to claims; so that the first clause or half of the section would seem to give them the right to locate, possess, and enjoy any newly discovered blind leads, even on claims already located. As this section is numbered "4" in the original act, and the section which gives all side veins within his boundaries to the locator of a lode claim,1 is numbered "3," the conflict between them would, under the doctrine that gives preference to the last

section in order,2 be settled in favor of the section cited above, securing tunnel rights.3 But it is believed that there is no real conflict between these two sections of the statute. The second clause of the section last in order of arrangement, is somewhat explanatory of the former one, and in so far as it explains, qualifies its operation thus: "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 shall be invalid." This refers to the location of veins and lodes, and not to the discovery of them. Therefore, as the locator of the lode claim located all the unknown side veins within his boundary lines, the tops or apices of which were included when he made his location,4 no subsequent rights to such lodes or veins could be acquired by running a tunnel to discover or disclose them.

1 Rev. Stat. U. S., § 2322, ante, p. 14.

2 Ante, § 37.

3 Ante, § 38; note, (1)

4 Rev. Stat. U. S., § 2322, ante p. 14.

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§ 40. Width of tunnel site.-When a lode has been cut by the tunnel there is no doubt that it would confer a discoverer's right to locate a claim thereon, with surface boundaries substantially as in case of other lode claims; but until the lode is cut, the tunnel owner can lay claim to no ground beyond the width of the tunnel, so that a claim located on a lode discovered within 3,000 feet of the face of the tunnel, but not within the line of the tunnel as determined by parallel lines conforming to its sides, produced to the prescribed distance beyond the face, would hold good as against the claim under the tunnel location.1 The right secured by work on the tunnel is merely a right to locate, and before this right can be exercised there must be a prior discovery. If the discovery is made without the line of the tunnel, previous to

discovery by the tunnel owners, the first discoverer will have the prior right to locate. The tunnel owners cannot be said to be in possession of a lode on the line of their tunnel until such lode is discovered.2

1 Corning Tunnel Co. vs. Pell, 4 Col. 507.

2 Ibid.

§ 41. Labor and improvements on tunnel location.By the amendment to Section 2324 of the Revised Statutes,1 the status of claims discovered in this manner is somewhat improved. By this amendment claims may be developed by tunnels run for that purpose, and when so worked are exempt from the requirement of other labor on the surface, for the purpose of perfecting the location. They are further benefited with respect to the requirement of annual labor, as provided by this same section, in that the money expended and labor performed in the tunnel will apply to the claims located thereon. But this amendatory act 2 is applicable not only to tunnel locations made pursuant to Section 2323 of the Revised Statutes, and applies to them only where the lode has been discovered. It applies to all lodes worked in this manner by the owners, though the tunnel may be run from a distance, and the work be done elsewhere than on the lode.3

1 Ante, p. 15.

2 Act of Congress Feb. 11, 1875, Rev. Stat. U. S., § 2324, ante, p. 15. 3 Decision of Commissioners, Mark Twain lode. See English vs. Johnson, 17 Cal. 108.

§ 42. Abandonment.-But while the claims discovered and located may be kept alive by the required amount, in value, of labor being performed in the tunnel each year, such labor will not preserve the prior right to undiscovered lodes within 3,000 feet of the face; for the statute makes this right dependent on the diligent prosecution of work, and fixes the standard of

diligence by the provision that a failure to prosecute 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. It as an open question, so far as judicial decisions are required to settle it, whether a resumption of work on the tunnel, after such presumed abandonment, would rehabilitate the tunnel owner with all his lost rights with respect to lodes still undiscovered. From analogy it is reasonable to believe that the courts would so decide, at least as against those who had not commenced work during the period of abandonment.

CHAPTER V.

PLACER CLAIMS.

SECTION 43-Definition of placer.

44-Location of placer claims.
45-Survey.

46-Record.

§ 43. Definition of placer.-What are generally called placers, are deposits of the precious metals, not in place. This term has never been applied to other than gold deposits, and for that reason it receives the restricted definition here. It includes such deposits as are found in earth or sand, in a free state, and may be secured by washing and amalgamation, without milling. If it includes deposits of any other or different character, it is because legislation has arbitrarily extended the meaning beyond what was originally intended to be covered by the word. The legislative definition, or rather explanation of the word is, "Claims usually called 'placers, inluding all forms of deposit, excepting veins of quartz,

ther rock in place," etc. This has been something

of a stumbling-block to the construction of the statutes on this subject. We have already seen that the courts treat certain deposits as lodes which are certainly not veins,2 thereby tacitly excluding them from classification as placers. This might be justified upon the ground that the act of 1872, in so far as it conflicts with, repeals Section 2329, which was enacted in 1870.3 But it may be safely assumed that the inclusive words had no reference to deposits of mineral in rock in place which did not conform to the vein formation. Such deposits were hardly known to exist at the time. The intention was merely to designate a class of claims by their popular name, or what they were "usually called." The superfluous words would probably never have created any confusion but for subsequent extensive discoveries of mineral deposits which were not veins, but were in rock in place, and hence not such as were usually called placers. Placers have been described as "superficial deposits, which occupy the beds of ancient rivers or valleys."4 Free gold which has been displaced from the rock, and carried by the action of the elements to any distance from its original situs, has been considered as indicative of placer ground, and not belonging to a claim located on the ledge from which it was dislodged.5

1 Rev. Stat. U. S., § 2329, ante, p. 20.

2 Ante, § 14.

3 Ante, §37.

4 Moxon vs. Wilkinson, 2 Mont. 421.

5 Brown vs. '49 and '56 M. Co., 15 Cal. 153.

§ 44. Location of placer claims.—None of the provisions as to location of lode claims can apply to placers. The details in this respect are almost entirely left to local regulation. The only exception is in respect of the amount of land which may be taken by any one locator, or by an association of persons. In this there is a want of har

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