Campbell v. Ellet, 167 U.S. 116 (1897)

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Campbell v. Ellet

No. 44

Submitted May 4, 1896
Decided May 10, 1897
167 U.S. 116

ERROR TO THE SUPREME COURT

OF THE STATE OF COLORADO

Syllabus

Enterprise Mining Co. v. Rico-Aspen Mining Co., 167 U.S. 108, affirmed and applied, and the Court further decides that the failure of the tunnel owner to mark on the surface of the ground the point of discovery and the boundaries of the tract claimed does not destroy his right to the veins he discovers in the tunnel.

On September 18, 1872, George C. Corning and other citizens of the United States located a tunnel site. They diligently prosecuted the work of excavation, expending therein $100,000.

On February 3, 1875, the Corning Tunnel Company, a corporation duly organized, was the owner of this tunnel location by sundry mesne conveyances from the locators thereof, and said tunnel company, while prosecuting the work of excavation, cut and discovered within the tunnel, and upon the line thereof at a distance of 594 feet from its face, a vein of mineral bearing rock in place, which was named the Bonanza lode, and on said February 3 it posted at the face of the tunnel a plain sign and notice, giving the name of said 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. This Bonanza lode did not appear upon the surface of the ground, and was not known to exist prior to its discovery by the Corning Tunnel Company, as above stated.

On February 9, 1875, the tunnel company filed and caused to be recorded in the office of the Clerk and Recorder of the County of Boulder a location certificate of said Bonanza lode, giving the name of the lode so discovered, and the company as the locator thereof, the point in the line of the tunnel at which the lode was discovered, and claiming 750 feet of the vein upon each side thereof; also stating the general course of the vein. The location certificate was as follows:

Territory of Colorado

County of Boulder

Know all men by these presents, that we, the Corning Tunnel Company, claim, by right of discovery and by right of location, 1,500 feet, linear and horizontal measurement, on the Bonanza lode, along the vein thereof, with all its dips, variations, and angles, together with the amount of surface necessary for working the same, and allowed by law; 750 feet of said lode so located lying and being easterly of the discovery on said lode, and 750 feet being westerly of said discovery, said lode being more particularly described as follows, to-wit: beginning at a point in the Corning tunnel 594 feet from the face of said tunnel, and extending from said point 750 feet easterly and 750 feet westerly. The bearing of said lode is about north 78 degrees east. This lode was discovered in the Corning tunnel, and it is claimed under the provisions of section 4 of an Act of Congress approved May 10, 1872, in Gold Hill Mining District. Said lode was discovered and was located on the 3d day of February, A.D. 1875.

[Signed] Frederick A. Squires, Pres.

Daniel A. Robinson, Sec’y

Subsequently, the title to the tunnel and the lode passed to the defendant in error. After the discovery of said Bonanza lode, the owners of the tunnel continuously and diligently prosecuted the work on the lode, and expended each year thereon the sum of $100. On July 10, 1886, more than eleven years after the discovery of the Bonanza lode, the plaintiff in error, Campbell, and one Cyrus Taylor, with full knowledge of the tunnel claim and of the discovery and location of the Bonanza lode aforesaid, made a location of a certain lode, called by them the J. L. Sanderson lode. This location is on the same lode and vein as that described in the Bonanza location, and the discovery cut by which it was discovered by Campbell and Taylor is within 200 feet of the tunnel line. Campbell and Taylor did everything required to be done by the statutes of the United States in discovering and marking the point of discovery of the Sanderson lode and in marking the boundaries of the claim on the surface of the ground, and thereafter did the requisite annual labor thereon. Having made application for a patent, the defendant in error filed an adverse claim, and commenced a suit, as required by the statute. Rev.Stat. § 2326. This, after a trial in the district court of Boulder County, Colorado, was taken to the supreme court of the state, and by that court a judgment was entered in favor of the defendant in error, on the ground that the proceedings in respect to the tunnel, the discovery of the Bonanza lode, and the location thereof vested in him a title to that lode to the distance of 750 feet from the line of the tunnel. 18 Colo. 510. To reverse which judgment, Campbell sued out this writ of error.