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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.

* *

§ 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

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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.



SECTION 43-Definition of placer.

44-Location of placer claims.


§ 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 word1 is, "Claims usually called 'placers,' including all forms of deposit, excepting veins of quartz, or other rock in place," etc. This has been something

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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 de-
posits 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 desig-
nate 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 oc-
cupy 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 origi-
nal 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 h

mony between contiguous sections of the revision, which may mislead. It is first provided that "no location of a placer claim, made after the ninth day of July, eighteen hundred and seventy, shall exceed one hundred and sixty acres for any one person or association of persons." 1 The next succeeding section says: "No such location shall include more than twenty acres for each individual claimant."2 If there were any real conflict between these sections the latter would govern, for the reason that it was enacted in 1872,3 while the preceding section was a part of the act of 1870. But there is no such conflict. Construed together, the first section limits the number of acres located in one claim to one hundred and sixty, regardless of the number of persons forming the association, while the latter section definitely limits the number of acres to be located by one person. If an association is formed of eight persons or more, one hundred and sixty acres may be located. If it be composed of less than eight persons, the amount of land which may be located, will be diminished below one hundred and sixty acres, just as many times twenty acres, as the number of persons falls short of eight.

1 Rev. Stat. U. S., § 2329, ante, p. 20. 2 Rev. Stat. U. S., § 2331, ante, p. 21. 3 Act of Congress May 10, 1872, § 10.

§ 45. Survey.-Most of the provisions in regard to survey have direct reference to the application for a patent. But even for purposes of location, where the claim is on the surveyed lands of the United States, it will be sufficient to designate the fractional portion of the section without any survey, and it is doubtful whether any local statute or regulation requiring anything further than this, by way of identifying the claim would be obligatory. When, however, the claim is taken on unsurveyed lands, the survey, or measurement of the ground

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