Ellet v. Campbell , 18 Colo. 510 ( 1893 )

Mr. Justice Elliott

delivered the opinion of the court.

This was an adverse suit, instituted in behalf of appellant by his guardian, “ to determine the question of the right of possession ” to a certain mineral vein or lode.

Appellee Campbell had filed his application for a patent to said lode, basing his claim upon a surface discovery and location. The adverse claim of appellant is based upon a pri- or discovery and location of the same lode in a tunnel. Appellant does not claim that he is entitled to a patent to the lode as the result of this litigation ; but he claims “ the right of possession ” thereto by virtue of prior discovery and continued compliance with the act of congress providing for the running of tunnels, “ for the development of a vein or lode, or for the discovery of mines.” Section 2323, Rev. Stats., U. S.

Having all the rights of the prior discoverer and locator of such lode in a tunnel duly located, appellant claims that he is entitled to be protected in such right of possession against any and all junior locators of the same lode; and, hence, that appellee is not entitled to a patent upon his junior location. Section 2326 Rev. Stats. U. S., Amendment of March 3, 1881.

The facts of the case are admitted. By the agreed statement it appears that appellant is the owner of a valid tunnel location duly made upon unappropriated public domain under the act of congress and the laws of Colorado; that such tunnel was commenced in September, 1872, and that work therein was thereafter prosecuted with diligence for the discovery of mineral veins or lodes ; that the lode in controversy was discovered in said tunnel on February 3, 1875; that said lode did not appear upon the surface, and was not previously known to exist; that upon its discovery it was, by the tunnel owners, located by posting at the face of the tunnel a plain sign and notice giving the name of the vein, the point of discovery within the tunnel, the' general course of the vein from the point of discovery, and claiming 750 feet of said vein on each side of the line of the tunnel; and that thereafter, and on February 9, 1875, a location certificate of said lode, specifying the matters aforesaid, was duly recorded in the office of the clerk and recorder of the proper county. The tunnel location was duly made, it boundaries were plainly marked upon the surface, and a certificate thereof was duly recorded as a mining claim ; but the lode in controversy as discovered therein was not otherwise separately marked, nor was any work done thereon upon the surface.

In behalf of appellee it is contended that appellant’s claim to the lode is wholly without right. It is broadly asserted that the discovery of a lode in a tunnel in pursuance of section 2323, cited above, cannot, under any circumstances, give the discoverer ary right to the lode, unless accompanied by a surface location in accordance with the statutory provisions. In other words, it is contended that a tunnel location, however perfectly made, described and recorded, even when accompanied by a complete notice, description and record of the lode discovered in the tunnel, is of no avail to protect a prior discovery in the tunnel against a junior surface location of the same lode.

In determining the controversy thus presented, it is necessary to consider, interpret, and, if necessary, construe the statutory enactments applicable to the discovery and location of mineral lodes. Section 2323, above cited, commonly called the Tunnel Site Act, is specially applicable to lodes and veins discovered in tunnel locations ; it reads as follows :

“ Sec. 2323. 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 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.”

Is this section the only one applicable to tunnel discoveries and locations, or must the discoverer of a lode in a tunnel, in order to protect his claim, comply strictly with other statutory provisions relating to the discovery and location of mining claims ? In resolving this question, as in other cases of like nature, the meaning and application of the statute is to be ascertained by considering its origin, its history, its purposes and objects, as well as its subject-matter and the language employed.

By the act of congress of July 26,1866, the mineral lands of the public domain, surveyed and unsurveyed, were opened to exploration and occupation by citizens of the United States. Practically, the act provided for giving away mines of gold and silver and other precious mineral deposits to those who would seek for and find them. Every encouragement was offered to those who would undertake to discover and develop the mineral resources of the country, and thus add to the volume of the precious metals. The nation had just emerged from a great civil war; and an increase of the money metals was necessary as a basis for the monetary system of the government; such increase was also essential to the prosperity of a free and enterprising people just entering upon a new era of national and individual life. The liberal acts of congress upon the subject of mines and mining have been supplemented by a liberal construction of such acts, by the national judiciary, as well as by the local courts of the mining states and territories.

It was not until the revision of 1872 that any general act was passed to encourage the discovery and development of mineral lodes by means of tunnels. Such was the date of the passage of the tunnel site act. What object or purpose could have induced congress to enact section 2323 ? There is but one answer: It was to encourage the discovery of the hidden mineral wealth which was believed to exist in the deepest recesses of the mountains. What consideration was adequate to compensate those undertaking a work requiring such large expenditures of time and money and involving such risks and dangers ? Nothing short of the guaranty of the government that they should hold and enjoy the fruits of their discoveries upon compliance with the terms of the statute. Every consideration, therefore, requires that the Tunnel Site Act should receive the most liberal construction consistent with reason and the' language employed.

Section 2323 was obviously designed to encourage the running of tunnels for the discovery and development of veins or lodes of the precious metals not appearing on the surface, and not previously known to exist. Little encouragement would the act give, if the discoverer.of a lode in a tunnel were bound also to find the apex and course of such vein, uncover the same from the surface, sink his location shaft thereon, mark the boundaries thereof, and record his certificate of such surface location the same as if he had made the original discovery from the surface.

The location of a lode from the surface is always attended with more or less difficulty and uncertainty. Mistakes occur in the location of boundary lines, even where the apex and course of the vein lie comparatively near the surface. These difficulties and uncertainties are liable to be greatly increased where a lode is discovered by means of a tunnel driven hundreds and thousands of feet into the heart of the great mountain. To require the discoverer of a lode in a tunnel to prospect for the vein upon the surface, and uncover and mark its boundaries so as to include its apex and course within the lines of the surface location, would be to require a work of supererogation; for no surface location is necessary for the convenient working of a lode discovered in a tunnel location already made. Such requirement would unnecessarily burden the tunnel locator and discoverer; to the great labor and expense of tunneling as a means of location and discovery, it would add the labor and expense devolving upon the ordinary surface discoverer and locator. Besides, such a requirement would subject the discoverer of a lode in a tunnel to the hazard of a race for its surface location; and thus the discoverer might have the fruits of his labor wrested from him by a surface locator who had done nothing and expended nothing in the original discovery.

The admitted facts of the present case well illustrated the hardship of the construction contended for by appellee. The tunnel owners have expended 1100,000 in the running and development of their tunnel location and the discovery of the lode in controversy. Eleven years after such discovery, appellee, having full knowledge of the lode discovered and claimed under the tunnel location, proceeds to make a surface location of such lode, and thereupon claims the same as his own to the exclusion of the tunnel claimant.

The suggestion of counsel, that the discoverer of a vein in a tunnel may mark the boundaries thereof, locate the same on the surface, and record his certificate without uncovering or ascertaining the position of the apex or course of the vein, seems deserving of but little consideration. For, if a discovery and location from the surface be necessary,-in case of a discovery in a duly located tunnel claim, then the surface location must be correct in order to afford adequate protection. But in case of a discovery in the depths of a great mountain, a surface location without ascertaining the position of the apex or course of the vein would be a chance location which, if it did not in fact contain such apex and course, would avail nothing against a location made by an exploration and uncovering of the vein from the surface.

Section 2323 does not provide that the discoverer of a vein in a tunnel shall make a surface location thereof; but it does declare that locations made by other parties on the line of such tunnel shall, under certain circumstances, be invalid. Thus the purpose of congress to protect the discovery of veins or lodes in tunnels is clearly manifest. In view of the purpose and language of the several enactments relating to the discovery and location of mineral lodes, and the consequences which would flow from a different construction, we feel constrained to hold that when a tunnel owner has duly located his tunnel claim and thereafter discovers a mineral lode therein, according to all the conditions specified in section 2323, he is not bound to make another discovery and location of the lode from the surface in order to be protected against a subsequent surface locator of the same lode. Thus, we interpret the section to mean what its special words plainly import, without unnecessarily qualifying their meaning by the general language of other sections.

A tunnel location has been called a “ tunnel claim ” by the highest judicial authority; and it seems that a valid tunnel location may inure to the benefit and protection of mineral lodes discovered in such tunnel. In the present case the tunnel claim was duly located by reference to U. S. government surveys ; a lode not previously known to exist, and not appearing on the surface, was discovered in such tunnel, and on the line thereof, while work in the tunnel was being diligently prosecuted for such purpose; notice of the discovery and location of the lode was immediately posted at the mouth of the tunnel, and the location certificate was duly recorded, describing the lode with reference to such tunnel location. Under such circumstances, in our opinion, appellant as successor in interest to the discover has the right of possession of such lode, and is entitled to be protected in such right against appellee, a junior surface locator of the same lode. The views we have thus endeavored to express seem to us to be in harmony with the opinion of the supreme court of the United States in the case of the Glacier Mining Co. v. Willis, 127 U. S. 471-480.

Counsel for appellee contends that the case of The Corning Tunnel Co. v. Pell et al., 4 Colo. 507, decided by this court in 1878, is opposed to the view expressed in this opinion. The Pell case was an action of ejectment brought by the Tunnel Company in support of an adverse claim ; no equitable relief was invoked; nor could any be had according to the practice under which that suit was instituted. At the trial of that case in the lower court there was no evidence, and no attempt to prove, that the lode in controversy had been discovered in the tunnel. Upon that ground it was held that the Tunnel Company had not acquired such right of possession as would enable it to maintain ejectment; and so the judgment of nonsuit was granted. Upon appeal the judgment of nonsuit was affirmed upon the same ground, but the court in its opinion discussed and passed upon several questions concerning the rights of tunnel site claimants, which, though perhaps fairly presented by the record, were not really necessary to the determination of that appeal. What the decision would have been if the lode had been actually discovered by the Tunnel Company in the tunnel, and on the line thereof, before suit brought, and before Pell discovered and located the lode, cannot be certainly known. Pell’s location was within the limits.of the tunnel location, but not on the line of the tunnel. The court expressed the opinion that the Tunnel Company did not have the exclusive right of possession to the whole tunnel location 1500 X 3000 feet, and that as the location by Pell was not upon the line of the tunnel, that is, the line of the actual bore or excavation, and as the Tunnel Company had not discovered the lode in the tunnel, it could not maintain ejectment to recover the lode.

If the Tunnel Company had discovered the lode in the tunnel and on the line thereof, prior to its discovery by Pell, and other conditions had been the same as in this case, the Tunnel Company’s right of possession to the lode might have been maintained to the same extent as if discovered from the surface, without a surface location in addition to the tunnel location. If the views expressed in the Pell case will not bear such a construction, we must decline to be governed by them under the facts admitted in this case.

Section 2323 has been considered and construed by the appellate courts of some of our sister states and territories. See Hope Mining Co. v. Brown, 7 Mont. 550; Hope Mining Co. v. Brown, 11 Mont. 370; also, Back v. Sierra Nevada Mining Co., 17 Pac. Rep. (Idaho) 83. It would not sub-serve any useful purpose to discuss these decisions at length. Though based upon facts somewhat different from the facts of the present case, they are in the main consistent with the views expressed in this opinion.

What is the extent of the tunnel owner’s right of possession to a vein discovered in a tunnel ? The language of the statute is, that he shall have the right of possession “to the same extent as if discovered from the surface.” In our opinion the words “ same extent ” mean the same extent “ along the vein or lode.” While the acts of congress leave the width of mining claims upon the surface subject to local regulations within certain limits, the length and depth may not be thus regulated. In this case the location of the tunnel and the discovery of the lode having been made subsequent to the passage of the act of congress of May 10, 1872, the discoverer was entitled to claim 750 feet of the lode each way from the point of discovery, or, in the language of the statute, “ 1500 feet in length along the vein or lode.” Secs. 2320, 2322, Rev. Stats. U. S.; Session Laws Colo. 1874, p. 185; Gen. Stats. Colo. 1883, sec. 2397; Morrison’s Mining Rights (7th ed.), 22, 23.

In the case of the Glacier Mining Co. v. Willis, supra, which was in many respects similar to the present case, the tunnel claimant was restricted to “ 250 feet each way from said tunnel, on each lode discovered; ” but in that case the location was made prior to the act of May 10, 1872, regulating the length of mining locations, and so the local laws of Colorado governed as to the length of the claim. Session Laws, 1861, p. 166; Gen. Laws, p. 627.

Our conclusion is, that the discovery and location of. the lode in controversy, as claimed by appellant, must be held valid, and that the subsequent location of the same lode made by appellee, being “ 200 feet to the east of the line of the bore of the Corning tunnel,” must be held invalid.

The judgment of the district court is reversed and the cause remanded, with directions to enter judgment in favor of appellant in accordance with this opinion.

Reversed.