perfunctory work will not satisfy the statute;1 nor will working a tunnel two or three days each six months be considered such diligent prosecution of work as will secure to the tunnel claimant the rights conferred, and protect the tunnel from forfeiture. But it must be prosecuted with reasonable diligence, which means reasonable under all the circumstances of the case; and this is a question of fact ordinarily, unless the facts of a given case are such that reasonable men cannot differ concerning them, when it becomes a question of law. When the tunnel is thus prosecuted with diligence, as observed in the previous section, the rights relate to the date of locating the tunnel and commencing work thereon. But these rights attach only to blind or unknown lodes or veins, and this time applies to the date of the commencement of the tunnel. Whether the same rule applies to a tunnel claim that applies to the ordinary mining claim, with reference to resumption after forfeiture, has never been judicially determined. We apprehend that if during an interim when work was not being diligently prosecuted, certainly when six months' cessation had occurred, and a lode claim should be located upon a valid discovery, it would have the superior right. The effect of resumption, however, the cessation not being taken advantage of, would be the same as in a lode claim, namely, to reinstate all previously acquired rights. § 304. Miscellaneous - Excessive tunnel claims - Protecting line of tunnel.- The general rule with reference to the result of marking excessive boundaries will be carefully set forth when we come to deal with the question of marking boundaries, or marking the location upon the ground, as one of the acts of location. It may be stated that the general rule as to excessive boundaries to lode 1 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 13 C. C. A. 390, 66 Fed. Rep. 200. See also 2 Lindl. Mines, p. 1167. 2 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 167 U. S. 108. See also Back v. Sierra Nevada Cons. M. Co., 2 Idaho, 386, 17 Pac. Rep. 83; Hope M. Co. v. Brown, 11 Mont. 370, 7 Mont. 550, 19 Pac. Rep. 218. 3 Post, Part VII, ch. IIL claims applies with equal force to excessive boundaries in tunnel claims. And where more land is sought to be appropriated than allowed by statute, the claim will not be void for that reason, but will be held good for the statutory amount, and rejected as to the excess.1 In the case just cited it was held that a tunnel claim five thousand feet in length will be held good and valid to the extent of the stat utory length of three thousand feet, and the remainder rejected. The supreme court of California has said that no location of a claim can be so extended as to amount to a monopoly. While this case arose under district rules before the statute, we apprehend the same conclusion would be reached under the statute, as the same reason controls. 305. May protect tunnel by injunction.- The question has arisen several times as to how far the tunnel claimant might, and to what extent he should, protect the line of his tunnel against the encroachments of claimants of lodes discovered from or upon the surface; and it may be regarded as settled that the tunnel claimant may protect his inchoate rights by all proper remedies, including that of injunction. Likewise, that the right of injunction will be extended to prevent the issuance of the patent. But since even the issuance of a patent cannot prejudice the rights of the tunnel claimant, as the supreme court of the United States now holds, it would seem that an injunction is wholly unnecessary. But it is believed that the principle which will support one in any case will prevent the removal of ore. 2 Table Mtn. Tunnel Co. v. Stranahan, 20 Cal. 198; s. c., 21 Cal. 548. 1 Glacier Mtn. S. M. Co. v. Willis, sons, 66 Fed. Rep. 200 (C. C. A.). 127 U. S. 471. For affirmance of this last case see 167 U. S. 108. See also Campbell v. Ellet, 167 U. S. 116, 42 L. ed. 101. 4 Hope M. Co. v. Brown, supra; Back v. Sierra Nevada M. Co., supra. Hope M. Co. v. Brown, 11 Mont. 370, 28 Pac. Rep. 732; Back v. Sierra Nevada M. Co., 2 Idaho, 385, 17 Pac. Rep. 83; Rico-Aspen Cons. M. Co. v. Enterprise M. Co., 53 Fed. Rep. 321; reversed for other rea 5 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 167 U. S. 108. § 306. Summary — Construing the statute. We have elsewhere intimated that this statute is capable of intelligent construction, when considered alone and as a special statute, limiting, to the extent of its provisions, the general statute. It is only when an attempt is made to read it in harmony with the general provisions relative to locations that trouble begins. And it must be confessed that the later decisions1 have enhanced rather than diminished the difficulty. This decision did well to lay the ghost of restricted tunnel claims put forth by the early Colorado decisions, if that question remained of potential force after the Montana case and the decision of the Colorado supreme court, the latter of which politely refused to follow it. But beyond that it unsettled what was supposed to be the law requiring the marking of surface boundaries of claims discovered in a tunnel, and thereby extended the maze of difficulty as to where the tunnel claimant's rights terminate and those of his neighbors begin. For instance, we are correctly informed that the tunnel claimant has and may claim possession of the same length of the vein as if discovered from the surface; and that he may take any fifteen hundred feet thereof so that the claim so made will cross his tunnel; and that a notice at the mouth of his tunnel is sufficient to make this claim. To the uninitiated this may seem sufficient. But in realty it only sticks in the bark as compared with the magnitude of the real difficulty presented. It will rarely occur that the true strike of the vein can be given with mathematical precision, and yet, if the boundaries are not marked on the surface, this will be the only way of informing neighboring prospectors as to the true extent of the rights acquired by the reservation in favor of the tunnel claimant and of those acquired in virtue of his discovery. The tunnel claimant has an enormous reservation of ter 1 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 167 U. S. 108. 2 Hope M. Co. v. Brown, 11 Mont. 370, 28 Pac. Rep. 732. 3 Ellet v. Campbell, 18 Colo. 510, 33 Pac. Rep. 521. ritory in his favor, and should be, as other claimants are, compelled to define the extent of his claim when his inchoate right or reservation becomes merged in a real and existing lode claim; this that the remaining territory to which his claim does not attach may be lawfully located by others. Moreover, this decision makes it necessary to insert in a patent another limitation and condition, namely, that the estate conveyed is liable to be divested by a tunnel claimant, prosecuting work with reasonable diligence upon a tunnel running in the direction of any vein contained within the patented area, and which was not known to exist at the date of the location of such tunnel; and upon the discovery of any such vein in such tunnel within three thousand feet from the mouth or "face" thereof. Or, if not this, then all the patent proceedings in the vicinity must be enjoined, as in the Montana and Idaho cases, until it can be determined whether the tunnel claimant has a superior right to the vein and the incident surface ground applied for; for it must be conceded that the words "same extent" apply as well to the surface as to the length of the vein. It would seem, therefore, that this portion of the decision will scarcely withstand the searchlight of reason and analysis; and that it must give way to that long standing, controlling principle of contemporaneous construction, in virtue of which it has always been considered necessary to mark upon the surface the boundaries of any claim discovered in a tunnel, in order to perfect the inchoate right. CHAPTER III. OF PLACER CLAIMS, THEIR DEFINITION AND SIZE; AND OF ALL FORMS OF DEPOSIT SO LOCATABLE. § 807. Introductory-General observations as to placer claims. 308. Placer claims - General and special definitions-The statuteWhat locatable as placer - Petroleum, gas, hydro-carbons. 309. Same subject — Of definitions merely, by the courts and standard authorities. 310. Same subject continued-Gold placer claims-Streaming, dredging, hydraulic mining - What included in term "placer min. ing"- Unnavigable river beds. 311. Asphaltum and other hydro-carbons locatable as placer. 312. The rule as to petroleum and natural gas. 313. Same-Grants and reservations in deeds- Petroleum held to be a mineral. 314. Building stone and lime stone. 315. Size of placer claims. § 307. Introductory-General observations as to placer claims. The research made into the authorities in the previous sections of this work relative to minerals and mineral lands, and what classes of deposits were held and considered as such, and locatable as placers, will materially lessen our burdens at this time with reference to definitions. Stated generally and broadly, the plain and obvious meaning of the statute was to consider as placers, and to permit their location as such, all forms of metal and mineral-bearing earth not comprehended by and included in the term "rock in place." The word "placer" itself, considered in a restricted sense, includes merely alluvial wash or gold gravel; but in an enlarged sense, and as used in the statute, congress provided that "claims usually called 'placers,' including all forms of deposit," might be located, evidently intending the term "placer" to have two meanings: first, the ordinary and re |