Mining Rights On the Public Domain Lode And Placer Claims Tunnels Mill Sites

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Montana Co. , 113 F. 900, 51 C. C. A. 530, 64 L. E. A. 207, 22 M. E. 127.
The Colorado Tunnel Acts Eminent Domain.
A Colorado Act of 1861 gave a discovery tunnel the "right of way through all lodes which may lie on its course. " The Act of 1897 enlarged this permission, and further provided for right of inspection to the owner whose lode was cut, and placed the burden of proof on the question of lode identity on the tunnel. Both these acts, in Cone v. Eoxanna Co. (HAL- LETT, J. MS. ), were held
... void (1) as to tunnel crossing prior location, because no provision was made for compensation, and (2) because not within the terms of A. C. Sec. 2338, allowing the states to legislate concerning easements. This same point (2) was ruled in Calhoun Co. V. Ajax Co. , 27 Colo. 1, 83 Am. St. Eep. 17, 50 L. E. A. 209, 59 P. 607, 20 M. E. 192 (affirmed 182 U. S. 499, 509, 45 L. Ed. 1200, 21 Sup. Ct. 885), the case making no reference to the 1897 Act, but its tenor would be against the validity of the act as a license to penetrate either a prior or a later claim.

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