RICO-ASPEN CONSOLIDATED MIN · CO. V. ENTEnPRISE MIN. 00.
while the'faetory was in process of erection, and another set of damages since its completion. There is no evidence whatever that any damages were caused by the absence of the side track during the erection of the building. There is an item of transportation of the boiler, and with this are items for transportation of coal and of 278 tons of fibre. There is, of course, no evidence of damage to the busi· ness of the factory since its completion, for it is not yet completed, and has done no business. Considering the whole case, there is no' ground for granting damages in this court. The delay in constructing the side track was not caused by any willful act on the part of the defendant, but from its inability to do so. It did not own the right of way, and had no means of condemning it or compelling its sale. During the whole time it was earnestly endeavoring to get it, and finally, after much "effort, has succeeded. Without this successful effort a decree for specific performance would scarcely have been made. The case came on to be heard on bill, answer, and testimony taken in open court. Hearing the same, and on due consideration thereof, it is ordered, adjudged, and decreed that the defendant, the North Augusta Land Company, do, within 40 days from the date of this decree, specifically perform its contract with the complainant of building a side track to the land donated and conveyed by defendant to plaintiff on the property of plaintiff opposite the city of Augusta, by beginning the construction thereof, and by completing the same within a reasonable time thereafter; the complainant to have ]e,ave at the foot of tllli; decree to apply for any order which may become necessary. Further, let defendant pay the costs of these proceedings.
RICO-ASPEN CONSOI.IDATED :MIN. CO. et al. v. ENTERPRISE MIN. CO.
(Circuit Court, D. Colorado.
December 22, 1892.)
Nos. 2,827, 2,829,2,838. ,L
MiNES AND MINING-TUNN'EL LOOATIONS-LoCAI, REGUI,ATIONS.
The location of a mining tunnel under Rev. St. § 2323, does not entitle the locator to the full length of a suL'face location (1,500 feet) on any vein or lode discovered on the line of the nronel, but leaves the length of such location to be determined' by the local laws or regulations; and in Colorauo such length is fixed by Act 1861, § 5, (1st Bess. 166,) at 250 feet each way from the tunnel. Tunnel Co. v. Pell, 4 Colo. 507, distinguished.
SAME-MARKING ON SURFACE-DATE OF TUNNEL LOCATIONS.
InEquity. Bills by the Rico-Aspen Consolidated Mining Company and others against the Enterprise Mining Company. Injunctionl!l pendente lite granted, and final decree for complainants in respect W v.53F.no.3-·21
dne of the claims in controversy. The relative position of the sev&'aJ claims on the ·surface is shown in the following diagram.:
Charles J. Hughes, Thomas, :a. S. Morrison, and John Kinkaid, for complainants. J. F. Vaile, O. H. Toll, H. M. Teller, and Adair Wil· E. O. son, for defendant. HALLETT. District Judge. Oomplainants assert title to the ground' in .controversy under:three·locations,-one ·called ''Vestal,'' made in 1879; another, called' 'IOontention," made January 1, 1888; and the third, palled "Compromise," made November 18, 1889. These looafi()nS are in the general.course east and west, and nearly coincident with the line of the Group tunnel, which is owned by re.locations,-the Contention claim, spondents. 0Ile· of -in its western end, comes upon the eastern extension of the tunnel; and the' Compromise and Vestal,' also owned by complainants, are. adjacent on the south and parallel with it. Jumbo II. is respondents' location, traversing the west ends of complainants' locations, embracing Slome part of each. It extends across the line of the Group tunnel, 54 feet being northeast from that
MiN. co. v.
ENTERPRISE MIN. CO.
line, and 1,41'6 feet southwest from that line.. that thev discovered the lode on which this locatioh was in the ,at the, date of location, June 15, 1$92. After discovery they went on set their discovery stake immediately over the Group tunnel, and marked out the Jumbo II., and recorded a certificate of location. Assuming all the locations to be well made, if the date of its discovel'Y be given to .Jumbo II., the others are very much earlier, and they must prevail, upon the farniliar rule that t4e time shall be first in right.. But respondents aver that JumbO II., having been discovered in the Group tunnel, shall have the' date of the location of that tunnel, under section 2323 of the Revised Statutes; and the Group tunnel was located July 25, 1887, and thus. became senior to the Compromise and Contention claims, which cover the territory contiguous to the line of the' tunnel. The Vestal location is older in date, and further removed from the tunnel, and it will not be necessary to refer to it again. There is a great conflict of testimony as to the form and position of the ore body on which Jumbo II. was located, and whether it is a vein or lode which may be located in the time and mallIler adopted by, respondents. Under our practice, such contlicts are to be decided by a jury, and we are not at present concerned. to ascertain the fact. We can only inquire as to the meaning of· section 2323 of the Revised Statutes in respect of the pre-emption of lodes and veins lying in the course of a tunnel, by locating the tunnel and prosecuting work on it in the manner prescribed; and certainly the language of the act, both affirmative and negative, seems to give to the locator some such right. It is fl.rstdeclared that "the owners of such tunnel shall have the right of possession of all veins 01' lodes witlJin 3,000 feet from the face of such tunnel on the lirie thereof not previolls1y known to exist;" and this is followed by the provision that "locations on the line of such tunnel of veins or lodes not appearing on the surface, m:tl1e by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid." Clearly enough this is a grant of lodes and veins on the line of the tunnel, and the only difficulty is in ascertaining the extent of the grant. The supreme court of this state interprets the act as giving only so much of such veins aLd lodes as may be in the tunnel itself. Tunnel Co. v. Pell, 4 Colo. 507. But this seems to reduce the grant to a point of insignificance which deprives the act of all force and meaning. Certainly no one would be at the trouble and expense of driving a tunnel through a mountain for such small segments of lodes and veins as may be in the bore of the tunnel. On the other hand, respondents contend that the grant is of the length of a SlITface location in any direction from the line of the tunnel, and, as stated above, almost the entire length of Jumbo II. is in a southwesterl)" direction from that line. Under this construction the location of a tunnel, followed by some lazy and }Jerfunctory work twice in the year, will.have the effect to withdraw from the public domain:\' tract 3,000 feet square, or something more than a half section of land;
and this in t.he face of the ear;lierdeclaration of the statute that "no IGcation of a mining claim sha,llbe made until the discovery of the vein or lode within the limits of the claim located." This view is so far inconsistent with the generai policy of the law, which forbids the granting of large of rilluable mineral lands to one person or company, that it to accept it. If we look into all the acts ot relating to mines of preciolls metals, we sha,lIflnd that it,JJ,asDotbeen the practice or policy to de: Me absolutely the length oJr,'width of mining claims. The act of 189Q, which is the first oIi.,thesubject, declares s01Dewhat for "thela'w of posse&»on," meaning the local rules and CllStoinsof minerS. It has notWhg ,as to the length or width of claims. 13 St. 441. The act of 4) provides "that no location made shall 200 feet in length, along the vein for each locator, · * * *, together with a, reasonable quantity of S111'for th,e convenient working of the same as fixed by local rules." 14 St. 252. The act of 1872, which is continued in Revised Statutes, provides as follows: ':
"A mining claim 10catedafMr the passage .)f this act, whether located by on,e Ql.", more may eqUl;1l, b,ut shall not excerd, feet in length along the velifor l(lde. · ",. No claim shall el:'tend more than 300 feet on eachSlde of the middle of the vein at the surface, nor shall any clilim be llmlted by any mining regulation to less than 25 feet on' eaGh'side of the middle of th.eivein at the surface, except where adverse rights ,existing at the pasof this act shall render such limitatiounecel3sary." 17 St. 91.
is given In any of these a,nd the exact dimensions are left to the rules and regulations of minerS, or to the local legislation 1;4e states. 'rIus accQrd,s with the general congress, which not been to a complete code of laws, for taking, holding, a.:rid acquiring title to miniIlg, claims, but to recognize and establish the usages and 'custpms of' Ininers in mining districts, and ,the laws of the several sMtea relating to such matters. Jackson v. Rob v, 109 440, 3 Sup. Ct. Rep. 301; , Jennison v. Kirk, 98 U. S. 457. "Look. iIlg to the general policy ()f the government in dealing with its min· erallands, it seems highly iniprobable that cl)ngress intended to fix the length of a,location made upon, a discovery in a tunnel, and we ar.a, strongly persuaded to say that in this instance, as in others, the Inatter is subject to local regulation. In this view, the, words of section 2323, "to the same extent as if discovered from the surface," mean only that the location shall be as good as upon a, discovery from the surfMe. lJuquestionably, in the case of a location from a discovery in a tunnel, it is as necessary to mark the bOllDdaries on the surface and file a certificate for record as in any other case, because there is no other method of acquiring title to a mining claim; but, in, suchcase, the locator is not required to sink a shaft from the, surface to the depths below in which the lode may be found. The discovery in the, tunnel suffices for the usual work on the sur· fac:le, such as a shaft,adit, or other opening to the lode; but all other things must be done as in the case of an ordinary location on the sui1'ace.
,It will be observed' that only tp,e' maximum length and width :of
BELLOWS V. SOWLES.
In tbis view of the meaning and effect of section 2323 of the federal statutes, it is indeed true that, without local regulation as to the length of a claim founded on a discovery in a tunnel, nothing would pass but the line of the tunnel itself. And in the Corning Tunnel Company's Case the statute of the state on that subject was not reo felTed to. Indeed, it would seem from the court's statement of tlw case that the law the state was not at all considered, for it is said that appellant's "claim is entirely upon the right of tunnel owners under section -1 of the act of congress." If the act of 1861 had been presented to the supreme court of the state, there is every reason to believe that it would have been recognized as a sound and effective supplement to the act of congress, on which alone the opinion of the court proceeds. The act of 1861 (section 5) provides that a tunnel locator shall have 250 feet each way from the tunnel· on all lodes diseovered in the tunnel. 1st Sess. 166. It bas sur\ived through all revisions of the statutes to this time. No reason is perceived for declaring it obsolete. On the contrary, it appears to be of the highest obligation, as one of those laws relating to mines which has endured the scrutiny of many successive legislative assemblies of the state, and has repeatedly received the sanction of congress. A similar act of the state of Montana (Comp. St. Mont. 1887, § 1488) was recognized and enforced by the supreme court in Mining CO. Y. Brown, 11 Mont. 370, 28 Pac. Rep. 732. If, then, we give effect to Jumbo IL as a discovery in the Group tunnel, under section 2tJ2H Rev. St., in connection with the act of the state of 18!)1, we are' able to give it the date July 25, 1887, when the tunnel was located, and the length 250 feet southwesterly from the tunnel. So undel'l3'too'd; it traverses the end of complainants' Contention claim, and a small part of the Compromise claim. As before stated, there are questions of fact touching the form and extension of the ore body, and the validity of the several locations, which must be refelTed to a jury. In the cases based on these titles the usual orders for injunctions pending the controversy will be en· teredo In the view now adopted, Jumbo II. does not extend into the Vestal telTitory, and we can enter a final decree for complainants in the case, based on that title, without a trial at law.
BELLOWS et al. v. SOWLES et aI.
(Circuit Court, D. Vermont. December 13, 18fl2.)
EXECUTORS-RIGHTS OF LEGATEES TO FOLLOW .ASSETS.
In Vermont, after a decree by thl' proper probate court charging an ex· ecutor with aSStlts snfiident to pay all the legacies, the rights of the legatees vest entirely upon the decree, and they cannot follow the assets into the hands of third persons, who acquired them from the executor after the decree was rendered.