presupposes the absence of any conflicting surface rights. at least, once perfected under the law, vests in the proprietor the ownership of not only the lode upon the discovery of which the location is predicated, but of all other lodes, the tops, or apices, of which may be found within such surface boundaries or within vertical planes drawn through them. The ownership of such other lodes so found is not made to depend upon their general direction or the position they may occupy with reference to the originally dis

covered lode.

The only limitation upon the grant authorized by section twenty-three hundred and twenty-two of the Revised Statutes is the extralateral right reserved to other locators to follow lodes having apices within their boundaries, on their downward course, outside of and beyond such boundaries, and underneath adjoining surfaces.

Instances may be conceived where two veins might intersect or cross on their strike outside of vertical planes drawn through the surface lines of the several locations. In other words, lodes may intersect on their strike without the existence of any surface conflict or the invasion of the territory included within vertical planes drawn through surface boundaries.1

To cases of this character the application of the rule under consideration is accompanied with no more difficulty than its application to cross lodes located under or prior to the act of 1866.

But it has been assumed by the courts of last resort of at least one state in the union that there is an apparent conflict between section twenty-three hundred and twentytwo of the Revised Statutes, defining the nature and extent of the grant to the lode locator, and section twenty-three hundred and thirty-six, relative to cross veins.

The subject under discussion has been considered by the supreme courts in the states of Colorado and California. and in the territory of Arizona. The importance of the

1See concurring opinion of Chief Justice Beatty in Wilhelm v. Silvester, 101 Cal. 358, 364.

question, and the fact that the supreme courts of California. and Arizona have, upon a state of facts more or less similar, reached conclusions diametrically opposed to those enunciated by the supreme court of Colorado, render it necessary to examine the adjudicated cases, the facts upon which they were founded, and the reasoning employed to reach the discordant results.

2558. The Colorado rule. The inception of what may be termed the Colorado rule is found in an opinion given by Judge Hallett, sitting as circuit judge in the United States circuit court, district of Colorado, upon a motion to dissolve an injunction in the case of Hall v. Equator Mining and Smelting Co.'

The controversy arose between the Colorado Central lode owned by the plaintiff, and the Equator lode, owned by the defendant. The Equator was located in 1866. The date of the location of the Central is not disclosed by the reported decisions; but the court records establish the fact that it was discovered November 30, 1872.

Both parties claimed under United States patents issued after the passage of the act of 1872. Plaintiff held the senior patent, based on a junior location. The relative. position of the two claims is shown in the following diagram (figure 25):—

EQUATOR LODE Sur N.522

TUNNEL LODE N°6

TUNNEL LODE N95

COLORADO CENTRAL LODE SN261

FIGURE 25.

Fed. Cases, No. 5931, Morr. Min. Rights, 3d ed., p. 282.

The controversy related to a body of ore found in or under the east end of the Central location, and extending thence westward to and across the intersection with the Equator location.

The motion to dissolve the injunction was heard upon affidavits. There was a sharp conflict as to the facts. The learned judge, with respect to the showing made, uses this language:

"As was anticipated when the bill was removed into "this court, there is no agreement between the parties as "to the structure of the lode or lodes and their outcrop. "The affidavits suggest several theories without giving certainty to any of them. There may be two veins uniting "in their onward course at some point east of the Central "location, and thence going westward as one vein, with an outcrop in that location or south of it. And the vein "may be so wide at the top as to enter both locations at "the point where this controversy arose. And there may "be two veins uniting on the strike or on the dip at the very place in dispute. But as to this, it is only necessary "to say, that the facts are not satisfactorily stated to lead to a just conclusion. It is enough that there is a

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strong controversy in which the right of neither party clearly appears. On that alone we interfere to preserve "the property for him who may at law prove his right "to it."

The motion to dissolve the injunction was denied, and the parties were relegated to the action of ejectment, then pending, for a trial of the questions of fact.

The court thereupon proceeds as follows:

"What has been said relates mainly to a question of fact, which it is the opinion of the court should be tried "by a jury. Some general remarks in addition, as to the proper construction of the act of congress, may assist the parties in that investigation."

And after "assuming that these are lodes crossing each "other in the manner indicated by the locations," the judge enunciates the following doctrine:

"The general language of section twenty-three hundred "and twenty-two seems to comprehend all lodes having

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"their tops and apices in the territory described in the "patent, whether the same lie transversely or collaterally to the principal lode on which the location was made. "Considered by itself, such would be the meaning and "effect of that section. But there is another section relat'ing to cross lodes, which is of different import. It was "numbered fourteen in the original act of 1872, section twenty-three hundred and thirty-six, Revised Statutes, "second edition, and is as follows: . ." [Then follows quotation of section twenty-three hundred and thirty-six.] It will be observed, that by this section the first locator and patentee of a lode gets only such part of cross and intersecting veins as lie within the space of intersection, to "the exclusion of the remainder of such lodes and veins "lying within his own territory. So far, this section is in conflict with section twenty-three hundred and twenty"two, before mentioned, and the matter of precedence be"tween them is settled by an arbitrary rule established "long ago. As between conflicting statutes, the latest in "date will prevail, so between conflicting sections of the same statute, the last in the order of arrangement will "control.

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"The presumption that one section of a statute was adopted before another, seems to be very slight, and per"haps this rule has no other merit than to afford the "means of solving a difficult question. But the rule appears to be well established, and to be applicable to "the present case. It gives to section twenty-three hun"dred and thirty-six, Revised Statutes, or section fourteen, "as it stood in the original act, a controlling effect over "the prior section, and limits the right of the first locator "of a mine in and to cross and intersecting veins to the "ore which may be found in the space of intersection. If "there are in fact two lodes crossing each other in these

locations, the plaintiffs, having the elder title by patent, "have the better right, but it is limited as last stated. So "much as to the theory that there are two lodes intersect"ing in their onward course."

There can be no question but that Judge Hallett, in rendering the foregoing decision, based only upon a hypothetical state of facts and presented in the form of a few

1 Citing Bacon's Abr. Stat. D. Dwarris, 156; Brown v. County Com'rs, 21 Pa. 37; Smith v. Moore, 26 Ill. 392.

general remarks," exceeded the necessities of the case under consideration.

Upon the trial of the case on the merits, a state of facts was developed entirely different from the hypothesis above assumed. Instead of two lodes intersecting each other in the manner indicated by the locations, there was but one lode, with part of its width in one location and part in the other.1

Yet a precedent had been established by these "few "general remarks" which has ever since been followed by the supreme court of Colorado in numerous cases, without even a criticism of the logic of its reasoning or a consideration of the circumstances under which the decision was rendered.

In Branagan v. Dulaney, the question arose upon the sufficiency of the answer filed by the defendant, a junior locator, justifying a trespass within the lines of the plaintiff, a senior locator, on the ground that the defendant was the owner of a cross lode and had a right under Revised Statutes, section twenty-three hundred and thirty-six, to drift through the territory covered by the senior location. The court below having sustained the demurrer to the answer, judgment passed for plaintiff.

On appeal, the supreme court reversed the judgment, basing its decision upon Hall v. Equator (supra), and the "arbitrary rule of construction suggested by the court" in that case, and holding in effect, that the answer stated a complete defense.

This doctrine has ever since been followed or sanctioned by the supreme court of Colorado.3

The circuit court of appeals, eighth circuit, in Oscamp v. Crystal River Mining Company, gave its apparent sanction to the doctrine thus enunciated by declining to

'Carpenter's Mining Code, 3d ed., p. 65. See note to 11 Fed. Cases, No. 5931.

28 Colo. 408.

3 Lee v. Stahl, 9 Colo. 208, 13 Colo. 174; Morgenson v. Middlesex M. & M. Co., 11 Colo. 176; Omar v. Soper, Id. 380; Coffee v. Emigh, 15 Colo. 184. +58 Fed. 293.