controvert it, and in a later case invoked it as an aid to the interpretation of the tunnel laws.'

It thus appears that a "few general remarks" made by a judge upon a motion for a preliminary injunction, upon a hypothetical state of facts which was subsequently determined to have had no potential existence, have ripened into a rule of property in at least one state, which, when applied to certain localities and conditions found in that state, is productive of unique results. An illustration of the practical application of the rule accepted by the supreme court of Colorado is shown by an inspection of the official map of the mining region of Cripple Creek in that state.

In figure 26 we reproduce from that map a quarter section of land, upon the surface of which mining claims have been officially surveyed, many of which have been patented, overlapping in the manner indicated. Further comment is unnecessary.

1

Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. 200, 210.

2 559. Cross lodes before the supreme court of Montana. The subject of cross lodes came before the supreme court of Montana in the case of Pardee v. Murray.' This case involved a controversy between the Salmon, located in 1866, and the Cliff Extension, No. 2, located in 1867, on the one hand, and the Shark Town and Scratch All lodes,

discovered and located in 1875. The relative position of the claims of the contending parties is shown in figure 27. The court thus expressed its views as to the meaning of the section of the Revised Statutes under consideration:

"If a vein with a prior location crossed another, such "vein would not disturb the possession of the subse"quent location, except as to the extent of the cross vein, and would entitle the prior location to the ore and min"eral contained in the space of intersection. If with a "subsequent location, the locator would be entitled only to a right of way to the extent of his cross vein, for the purpose of working his mine, and to no other right; and

66

14 Mont. 234.

"if he should take the ore contained in the space of inter"section, he would be a trespasser against whom the prior "locator in possession of the surface ground might main"tain an action of trespass."

This suggests the view adopted by Mr. Morrison in his Mining Rights,"_1

"That a cross lode takes no estate in the claim it crosses, " and has no rights as against the crossed claim, except the mere right to drift through, leaving all the ore as the property of the crossed claim."

2560. The Arizona-California rule.-A case arose in Arizona out of the following facts, which are illustrated by a diagram, which we here repro

duce as figure 28.

The Black Eagle was the prior location, based upon the discovery of a vein having a southeast and northwest course. The Big and Little Comet are locations covering a vein with a course approximately north and south, the owners of which, through means of a tunnel originating in the Big Comet, had penetrated underneath the Black Eagle surface, justifying their right to do so under section twenty-three hundred and thirty-six of the Revised Statutes, claiming the Comet vein to be a cross vein. The surface conflict is shown on the diagram.

area

The Colorado rule was urged in support of their contention. The supreme court of Arizona declined to follow the doctrine of the Colorado courts, and in a well-considered opinion asserts that,

2

"The construction urged and supported by the Equator "and subsequent Colorado decisions, violates the language

18th ed., p. 102.

2 Watervale M. Co. v. Leach, 33 Pac. 418.

"of the statute, injects into it things not there, results in "conflict in the statute among its parts, and makes infinitely more complex the old system of lode claims."

With reference to cases arising under the act of 1872, the rule announced in Arizona recognizes the controlling force of surface boundaries, and denies the right to the junior locator of a so-called cross lode to invade the domain of the senior claimant for any purpose. Says the court:

"Section twenty-three hundred and twenty-two gives, "not the lode alone, but all lodes, veins, and ledges, "throughout their entire depth, the top, or apex, of which "lies inside of the surface lines of the claim extended "downward vertically; and as lodes may dip, so that, "when followed, they may be found to extend beyond the "boundaries of the claim, congress further provides that "they may nevertheless be followed. In other words, congress has said to the miners, Comply with the requirements that we impose, and the government of the "United States will grant absolutely to you a piece of "the earth bounded at the surface by straight lines, dis"tinctly marked, and by planes extending through those "lines to the center of the earth; and you shall have all "lodes of mineral-bearing rock whose apex is within "these boundaries.' This is simple, plain, and the miners' rights are thereunder easy of ascertainment."

66 6

The opinion of the court is elaborate, and a clear exposition of the law from its standpoint. The court fails to see any conflict between the different sections of the law, and thus denies the necessity for invoking the rule of statutory construction applied by Judge Hallett.

The position assumed in this decision compels the owners of lodes located under the act of 1866 to adverse the application for patent filed by one asserting rights to an overlapping surface location. The right of the first locator to pursue his so-called cross lode into the overlapping claim is lost by failure to adverse. This is in harmony with the rule in Colorado' only so far as it affected the right to the ore at the space of intersection.

'Lee v. Stahl, 13 Colo. 174, 9 Colo. 208.

In California it has been held, that as to ledges, rights to which accrued prior to the act of May 10, 1872, the act itself reserves them without the necessity of adversing,' and the supreme court of Utah, by a divided court, coincides with the views announced in California; but as to locations made subsequent to 1866, the supreme court of California agrees with the supreme court of Arizona.

The question presented to the California court3 arose out of an attempt to locate a so-called cross lode over the surface of a prior location. The conflict between the two is illustrated in figure 29, the New Idea being prior in point of time.

In an elaborate opinion,

written before the Arizona decision was published, the California court reached the same conclusion as that enunciated by the supreme court of Ari

zona.

Commenting on the Colorado rule, the supreme court of California asserts,

"That it would leave the "rights of prior locators in

"the greatest confusion: their

property interests in their claims would be undefined, "and the result would be ruinous litigation and perhaps "personal conflicts."

Chief Justice Beatty, whose great judicial experience in mining litigation in Nevada and California, in both trial and appellate courts, is a matter of current history, writes a concurring opinion, embodying additional reasons for the rule announced by the court.

The practical application of the Arizona-California rule is shown in the accompanying figure 30, which represents

1 Eclipse G. & S. M. Co. v. Spring, 59 Cal. 304.

2 Blake v. Butte Silver M. Co., 2 Utah, 54.

3 Wilhelm v. Silvester, 101 Cal. 358.

J