7 Mont. 550 | Mont. | 1888
The plaintiff in this case appeals from a judgment of the district court sustaining a demurrer of no cause of action; and in order that we may have a-clear understanding of the points presented, it will.be necessary to examine carefully the allegations of the complaint. It seems that the plaintiff is the owner and in the possession of a certain tunnel right and claim,
The rights of the plaintiff depend entirely upon the construction to be given section 2323, Revised Statutes of United States. Manifestly, that section was enacted for the encouragement and protection of those persons who were engaged in exploring for precious metals by
The reasonings of the case commend themselves to our view, not only as a proper construction of the rights of the tunnel claimant, but as being in accord with the mining policy of the general government. Counsel for appellant, with great earnestness and ability, press upon our consideration the case of Black v. Sierra Nevada Con. Min. Co., from Idaho, and reported on page 88 of volume 17 Pacific Reporter. We have carefully examined the case, and do not find that it conflicts with our views, but is rather in support' thereof. It appears from the statement that though' the plaintiff had located his tunnel, and marked off its length and line, setting up posts every hundred feet along the line, each post being plainly marked with the name of the tunnel, — at post No. 9 the defendants entered upon his line, sunk a shaft, and at a ■ depth of twelve feet they discovered a lode or vein. The plaintiff alleged, besides the requisite averments, that upon the prolongation of the tunnel along the line marked out, it would pass through the lode or vein discovered by the defendants in their twelve-foot shaft at post No. 9. He prayed for an injunction, which was properly granted; because as long as the tunnel claimant prosecutes diligently his' work, no one has the right to make locations on the line of his tunnel. The question at issue in the cause at bar did not come up in the Idaho case; and what we here decide is, that third persons have a right to locate any veins or lodes within a distance of three hundred feet on either side of the line of the tunnel, but not on the line of the tunnel, which we hold means a line the width of the sides of the tunnel. Of course, any locations so made are at the risk of the locators, for upon the discovery of the vein or lode in the tunnel, all locations made subsequent to the commencement of the tunnel become invalid, if they are within
The judgment of the lower court is affirmed, at cost of appellant.
Judgment affirmed.