explained the rights upon located veins as they were asserted under, and prior to, the passage of the act of 1866. It having been definitely settled by the supreme court of the United States in the Flagstaff-Tarbet case, that under the act of 1866 a locator could not pursue his vein on its strike beyond the lines of his location, the application of the doctrine of that case to locations made under the act of 1872 was natural and logical. The rule may be said to be elementary.3

This being true, it follows that no other locator can, in the pursuit of his vein on its strike, pass through the bounding plane of a senior location, with the possible exception of the owner of a cross-lode. An entry underneath the surface of a prior location is only permitted in the exercise of a right to pursue a vein on its downward course. This suggests the subject of crosslodes.

557. Section twenty-three hundred and thirty-six of the Revised Statutes and its interpretation.-As we have observed in a previous chapter, under local rules

1 Ante, § 58.

Ante, § 60; fig. 3, p. 92, and illustrations with § 586, post.

Argentine M. Co. v. Terrible M. Co., 122 U. S. 478, 7 Sup. Ct. Rep. 1356; Terrible M. Co. v. Argentine M. Co., 5 McCrary, 639, 89 Fed. 583; Wolfley v. Lebanon M. Co., 4 Colo. 112; Patterson v. Hitchcock, 3 Colo. 533; Hall v. Equator M. and S. Co., Morr. Min. Rights, 3d ed., p. 282, Fed. Cas. No. 5931; New Dunderberg v. Old, 79 Fed. 598. Post, § 562.

Ante, § 58.

existing prior to the passage of the act of 1866, as well as under the act itself, the lode was the principal thing granted, and the adjacent surface, if any was actually appropriated, was a mere incident; that only one lode could be held by a single location, and that this could be followed on its course, or strike, wheresoever it might lead, to the lawfully claimed limit, without the necessity of inclosing it within surface boundaries.

Where surface boundaries had been established by the prior locator for the convenient working of his lode, a subsequent locator appropriating a separate vein might pursue it into and through the surface ground of the senior locator, but no one was permitted to invade such surface for the purpose of searching for undiscovered veins.1

Such being the recognized rules, it is not difficult to imagine instances of two lodes held in different ownership intersecting or crossing each other on their strike, or onward course, without creating any conflict of title, except at the place of lode intersection or within the space of actual lode crossing.

The act of 1866 made no provision in terms for the determination of rights growing out of such crossings or intersections.

Such were the conditions existing when the act of 1872 was passed, which contained the following provision, now preserved in section twenty-three hundred and thirty-six of the Revised Statutes:

"Where two or more veins intersect or cross each "other, priority of title shall govern, and such prior "location shall be entitled to all ore or mineral con"tained within the space of intersection; but the subse"quent location shall have the right of way through the 1 Atkins v. Hendree, 1 Idaho, 95. Lindley on M.-58

66

space of intersection for the purposes of the conve"nient working of the mine...."1

This is the enunciation of a rule of law, the usefulness of which when applied to the conditions existing at the time of its passage cannot be denied. It established a rule of decision based upon the equitable maxim that "priority in time establishes a priority of right." The application of this provision to locations made prior to its enactment is not involved in any serious embarrassment. It is only where attempts are made to apply the rule to locations made and rights asserted under the act of 1872 that apparent difficulties have been encountered, giving rise to a conflict of opinion and diversity of decision.

Whatever may have been the relationship existing between the lode, which was the subject of location, and the adjacent surface ground under the act of 1866, under the existing law the right to any portion of any lode is, as a general rule, dependent upon its having its top, or apex, within the surface boundaries of the location. Of course, there may be exceptions to this rule, as heretofore pointed out. A location overlying the dip of a vein may hold everything within the vertical boundaries, in the absence of an outside apex proprietor with a location which conferred an extralateral right. A regular valid location, 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 discovered 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 some difficulty has been encountered by the courts in different jurisdictions in construing section twenty-three hundred and twenty-six of the Revised Statutes and endeavoring to harmonize it with other sections of the mining laws, resulting in a radical conflict of opinion. While time and the progressive interpretation of the general body of the mining laws have induced some of the courts to recede from their original doctrines, closing the breach to some degree, yet there is still a radical difference of opinion upon one of the most important questions arising out of the "cross"lode" conditions which still awaits final adjustment by the supreme court of the United States.

1 See concurring opinion of Chief Justice Beatty in Wilhelm v. Silvester, 101 Cal. 358, 364, 35 Pac. 997.

In order to ascertain to what extent the courts are in harmony, and to point out wherein there is still a wide divergence of views, it will be necessary to state the rule in the different jurisdictions, the reasoning upon which such rule is predicated, and the extent to which the supreme court of the United States has given its sanction to one view or the other-or has declined to pass upon either. We may then state the net results in the form of general deductions.1

558. The Colorado rule.-The inception of what may be termed the earlier 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.2

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

EQUATOR LODE Sur N$82

COLORADO CENTRAL LODE SÜTN261

TUNNEL LODE N96

FIGURE 44.

TUNNEL LODE NO5

disclosed by the reported decisions; but the court records establish the fact that it was discovered November 30, 1872.

1

1 Post, § 562. 'Fed. Cas. No. 5931; Morr. Min. Rights, 3d ed., p. 282.