On Rehearing.
(Submitted May 25, 1907. Decided June 8, 1907.)
In tunnel locations veins which show on the surface cannot be located. It is only the hidden and unknown veins which may thus be appropriated. It is not contemplated that there shall be anything at all on the surface either as to development work or croppings. The discovery in the tunnel is the only requisite in such locations, so far as the discovery of a vein is concerned. (Enterprise Min. Co. v. Rico-Aspen Con. Min. Co., 167 U. S. 108, 17 Sup. Ct. 762, 42 L. Ed. 96; Campbell v. Ellet, 167 U. S. 116, 17 Súp. Ct. 765, 42 L. Ed. 101.) In the last case the point was raised and discussed as to what surface development should be made, and whether it was necessary to post a notice on the surface over the point of discovery. The supreme court held that a notice posted at the mouth of the tunnel was sufficient. The vein in this ease was five hundred and ninety-four feet from the mouth of the tunnel. It was therefore probable that the mouth of the tunnel could not be on the claim as located. Aside from the decisions cited above, the supreme court of Colorado, in Brewster v. Shoemaker, 28 Colo. 176, 89 Am. St. Rep. 188, 63 Pac. 309, has arrived at a different conclusion from this court. There a tunnel was run from a patented claim, and a vein struck in the tunnel was located pretty much as was done in this case, and the location was sustained. We call the court’s attention to the fact that the state statute in Colorado is the same as ours. In fact our statute was taken from Colorado. We submit that the state statute is nowhere violated by the defendant’s location, but that the question raised is one solely arising under the United States statutes, and that our statute does not, and does not undertake to, regulate the question. MR. JUSTICE HOLLOWAYdelivered the opinion'of the court.
We adhere to the decision heretofore reached in this ease (ante, p. 327, 89 Pac. 302). Our decision is based upon a con,sid*341eration of sections 3611 and 3612 of our Political Code, and not upon a consideration of any federal statute. We further hold to the view expressed, that the state may rightly exact of a locator certain things enumerated in our Code, in addition to what is required by the laws of the United States, for making a quartz lode mining location. And, while it may be said that our Code does not in express terms declare that the opening of the cut, crosscut or tunnel, which is designated the equivalent of the discovery shaft by section 3611 above, must be on the claim sought to be located, we do think that no other conclusion can be drawn from the language employed in that section and section 3612.
The cases cited by appellant (Enterprise Min. Co. v. Rico-Aspen Con. Min. Co., 167 U. S. 108, 17 Sup. Ct. 762, 42 L. Ed. 96, and Campbell v. Ellet, 167 U. S. 116, 17 Sup. Ct. 765, 42 L. Ed. 101) have to do with locations made pursaunt to section 2323 of the United States Revised Statutes, which are governed by different principles from those applicable to other locations, such as the attempted location of the Louise claim. That different principles are applicable to these different classes of claims, we think is made manifest in Campbell v. Ellet, above, wherein it is decided directly, for instance, that it is not necessary to mark the point of discovery or the boundaries of the claim on the surface, in case of a location made under section 2323, above, while section 2324, which applies to all other lode mining claims, particularly requires that “the location must be distinctly marked on the ground, so that its boundaries can be readily traced.”
The question which we have decided was not one of the questions determined in Brewster v. Shoemaker, 28 Colo. 176, 89 Am. St. Rep. 188, 63 Pac. 309, and what is said in the opinion in that case upon this subject appears to be obiter dictum; however, from the language employed it is possible that, under a state of facts similar to that involved in this ease and under a statute similar to ours, the Colorado court might hold contrary to the views we have expressed. But, if so, we can only *342say that we are unable to reach that conclusion from a consideration of the language employed in our statutes and the manifest purpose of the legislature in enacting them.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.