tract of land,18 still to hold the mill site it is not enough to convey the water in pipes to a smelter two miles away,1o or to a mill and reduction works owned by claimant on adjoining ground,20 or to put on the site a dam and pipes to carry the water for use on nearby lodes.21

THE ACTS OF LOCATION OF MILL SITES.

61. The federal statute prescribes no method of location of mill sites, and the local rules and statutes must therefore be consulted. Where there are none applicable to mill sites as such, the local requirements as to lode locations should be met, except as regards discovery and discovery work.

The manner of locating mill sites is governed in some states by statute. The federal statute is silent on the subject, and in the absence of specific local legislation as to mill sites the requirements as to lode locations should be fully complied with,22 except, of course, that a discovery shaft need not be dug or other discovery excavation made. A notice of location should be posted on the ground, the tract should be marked in such a way that the boundaries may readily be traced, and a location certificate or declaratory statement should be recorded. Wherever there is local legislation regulating the location of mill sites as such, a name is required to be given to the mill site. It is important, therefore, to give the mill site a name. The mill site should also be described by reference to natural objects and permament monuments with the same particularity as is used in the case of lode claims. The record should state the number of feet or acres claimed, and, if the mill site is located by the proprietor of a lode, the record should give the name and a brief description of the claim with which the mill site is to be used, or, if it is to be used for a mill by one who does not own a lode in connection with it, the name of the mill or reduction works up

building one mill on the division line between them will not be allowed. Hecla Consol. M. Co., 14 Land Dec. Dep. Int. 11.

18 Charles Lennig, 5 Land Dec. Dep. Int. 190. That the water right becomes appurtenant to the mill site, and not to the claim the ores of which are treated, see North American Exploration Co. v. Adams, 104 Fed. 404, 45 C. C. A. 185.

19 Charles Lennig, 5 Land Dec. Dep. Int. 190.

20 Brodie Gold Reduction Co., 29 Land Dec. Dep. Int. 143. A mill site cannot be acquired as an addition to an existing mill site. Hecla Consol. M. Co., 12 Land Dec. Dep. Int. 75.

21 Le Neve Mill Site, 9 Land Dec. Dep. Int. 460. This would seem, however, to be a perfectly proper mining purpose to sustain the location of a mill site by the proprietor of a lode. See Silver Peak Mines v. Valcalda (C. C.) 79 Fed. 886.

22 Fencing is not required. Silver Peak Mines v. Valcalda (C. C.) 79 Fed. 886, 889.

on the mill site. With these additions, the acts of location are just like those for lode claims, except, of course, that no discovery shaft is required. The building of the mill in the one situation, and the actual user of the land for mining or milling purposes in connection with the lode in the other, takes the place of the discovery shaft and the subsequent annual labor.

A mill site is so far like a mining claim that it has been held to be within the phrase "any mining claim or possession held under existing laws," and hence to be excepted from a town site patent."

" 23

23 HARTMAN v. SMITH, 7 Mont. 19, 14 Pac. 648. Compare language in Cleary v. Skiffich, 28 Colo. 362, 65 Pac. 59, 89 Am. St. Rep. 207.

CHAPTER XIV.

THE LOCATION OF TUNNEL SITES AND OF BLIND LODES CUT BY TUNNELS.

62. By the federal statute the tunnel site owner acquires the right to "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." While that statute does not prescribe the method of locating tunnel sites for the discovery of such "blind veins," the land department has a rule which prescribes the posting and recording of notices and the marking of boundary lines, and that rule should be complied with.

By the "face" of the tunnel is meant the first working face when the tunnel enters cover, and by the "line" of the tunnel seems to be meant the space bounded by 1,500 feet on either side of the bore of the tunnel, projected 3,000 feet in from the face of the tunnel; but, because the land department early defined the "line" of the tunnel to mean the bore of the tunnel, a prudent locator of a tunnel site will mark on the surface both the projected bore of the tunnel and the larger area now seemingly known as the line of the tunnel.

The act of Congress provides for the acquisition of tunnel sites. for the discovery and location of veins not previously known to exist, but found on the line of the tunnel within 3,000 feet from its face; but the act does not prescribe the method of locating such tunnel sites. Acting under section 2478, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1586), however, the land office has made the rule that the tunnel locators, as soon as their tunnel actually enters cover, shall "give proper notice of their tunnel location by erecting a substantial post, board, or monument at the face or point of commencement thereof, upon which should be posted a good and sufficient notice, giving the names of the parties or company claiming the tun

1 Rev. St. U. S. § 2323 (U. S. Comp. St. 1901, p. 1426).

nel right, the actual or proposed course or direction of the tunnel, the height and width thereof, and the course or distance from such face or point of commencement to some permanent well-known objects in the vicinity, by which to fix and determine the locus in manner heretofore set forth applicable to location of veins or lodes; and at the time of posting such notice they shall, in order that miners or prospectors may be enabled to determine whether or not they are within the lines of the tunnel, establish the boundary lines thereof by stakes or monuments placed along such lines at proper intervals, to the terminus of the 3,000 feet from the face or point of commencement of the tunnel; and the lines so marked will define and govern as to specific boundaries within which prospecting for lodes not previously known to exist is prohibited while work on the tunnel is being prosecuted with reasonable diligence." The land office also requires that at the time of posting notice and marking the lines "a full and correct copy of such notice of location defining the tunnel claim must be filed for record with the mining recorder of the district, to which notice must be attached the sworn statement or declaration of the owners, claimants, or projectors of such tunnel, setting forth the facts in the case, stating the amount expended by themselves and their predecessors in interest in prosecuting work thereon, the extent of the work performed, and that it is bona fide their intention to prosecute work on the tunnel so located and described with reasonable diligence for the development of a vein or lode, or for the discovery of mines. or both as the case may be."3

In the foregoing discussion no mention has been made of state provisions, because they are all covered by the land office requirements. For instance, the Colorado statute provides that, "if any person or persons shall locate a tunnel claim for the purpose of discovery, he shall record the same, specifying the place of commencement and termination thereof, with the names of the parties interested therein.” ♦ But, as we have just seen, that and more is required by the land department."

2 Land Office Regulations, rule No. 17.

8 Land Office Regulations, rule No. 18.

4 Mills' Ann. St. Colo. § 3140.

5 In CREEDE & C. C. MIN. & MILL. CO. v. UINTA TUNNEL MIN. & TRANSP. CO., 196 U. S. 337, 355, 25 Sup. Ct. 266, 49 L. Ed. 501, there is the following dictum: "Nothing is said in section 2323 as to what must be done to secure a tunnel right. That is left to the miners' customs or the state statutes, and the statutes of Colorado provide for a location and the filing of a certificate of location." The land office rules were overlooked by the court, but they are none the less to be complied with. See 1 Lindley on Mines (2d Ed.) § 472.

The Face of the Tunnel.

The face of the tunnel has been defined by the land department as follows: "The term 'face,' as used in said section, is construed and held to mean the first working face formed in the tunnel, and to signify the point at which the tunnel actually enters cover." That seems sound doctrine..

The Line of the Tunnel.

The line of the tunnel has been a matter of controversy. The tunnel locator is given the right of possession of all "blind veins" (that is, veins which do not outcrop) within 3,000 feet of the face of the tunnel "on the line thereof," and the subsequent location by others of blind veins "on the line of such tunnel" is declared to be invalid. The land office rules also require "the boundary lines" of the tunnel to be established; and the question is: What is "the line of the tunnel," and what are these "boundary lines"?

10ܝ

In Corning Tunnel Co. v. Pell the Colorado Supreme Court refused to hold that "the line of the tunnel" meant a space 3,000 feet into the mountain by 1,500 feet wide, but instead declared that in the federal statutory phrase "line of the tunnel" the word "line" "designated a width marked by the exterior lines or sides of the funnel.' The reason why the court took this narrow view was that, under the view that the line of the tunnel embraced 1,500 by 3,000 feet, "the tunnel site would withdraw from the explorations of prospectors over 100 acres of mineral lands. A very limited number of such locations would cover and monopolize in most cases an entire mining district; giving to a few tunnel owners all its mines, not upon the condition of discovery and development, but upon the easy condition of commencement of work on the tunnel, and its prosecution with reasonable diligence." 12

11

• Land Office Regulations, rule No. 16.

7 Larkin v. Upton, 144 U. S. 19, 23, 12 Sup. Ct. 614, 36 L. Ed. 330; Enterprise Min. Co. v. Rico-Aspen Consol. Min. Co., 167 U. S. 108, 113, 17 Sup. Ct. 762, 42 L. Ed. 96.

8 Rev. St. U. S. § 2323 (U. S. Comp. St. 1901, p. 1426). That means invalid as to blind veins and as against the tunnel site owner.

9 4 Colo. 507.

10 See, also, Hope Min. Co. v. Brown, 7 Mont. 550, 557, 19 Pac. 218, 11 Mont. 370, 379, 28 Pac. 732.

11 This was estimated 1,500 by 3.000 feet on the erroneous idea that the blind lode could be followed only 750 feet on each side of the center of the bore of the tunnel. As it is established that the tunnel owner may take the whole 1,500 feet of the blind vein on one side only of the tunnel, and it is uncertain on which side he will elect to take it, the real figures are 3,000 feet by 3,000 feet.

12 Corning Tunnel Co. v. Pell, 4 Colo. 511.