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 was followed or sanctioned by the supreme court of Colorado in a number of subsequent

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 controvert it, and in a later case invoked it as an aid to the interpretation of the tunnel laws.36

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, ripened into a rule of property, which, when applied to certain localities and conditions found in that state, was productive of unique results. An illustration of the practical application of the rule so long 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.

34 Lee v. Stahl, 9 Colo. 208, 11 Pac. 77, 78, 13 Colo. 174, 22 Pac. 436, 438, 16 Morr. Min. Rep. 152; Morgenson v. Middlesex M. & M. Co., 11 Colo. 176, 17 Pac. 513, 514; Omar v. Soper, 11 Colo. 380, 7 Am. St. Rep. 246, 18 Pac. 443, 447, 15 Morr. Min. Rep. 496; Coffee v. Emigh, 15 Colo. 184, 25 Pac. 83, 85, 10 L. R. A. 125.

35 58 Fed. 293, 296, 7 C. C. A. 233.

36 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. 200, 210, 13 C. C. A. 390.

In figure 45 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.37

37 While the rule, the practical operation of which is intended to be illustrated in figure 45, has been in some degree modified by the cases hereafter referred to, yet the illustration is still applicable to the modified rule, which denies to the junior cross-locator the ownership of the

Lindley on M.-78

The rule thus enunciated established two principles:

(1) The owner of the junior cross-lode was the owner of so much of his cross-vein as was found within the vertical boundaries of the senior location, except the ore within the space of actual vein intersection. The ore within this space belonged to the senior locator. In other words, that portion of the cross-vein within the senior locator's boundaries on each side of this space of vein intersection was excepted out of the grant to the prior locator;

(2) The owner of the junior cross-lode had a right of way through this space of vein intersection, and, being the owner of the remainder of the cross-vein, of course could work it within the boundaries of the senior claim.

This rule remained practically undisturbed in Colorado, though frequently challenged, from the year 1879 (the date of Judge Hallett's ruling in Hall v. Equator, supra), until 1898, when Judge Lunt, district judge of El Paso county, in that state, in the case of Ajax Gold Mining Company v. Calhoun Gold Mining Company, had the courage to decline to follow the long line of decisions of the supreme court of his state, thus rendering himself liable to the charge of judicial insubordination. As to this Judge Lunt thus expressed himself:

cross-vein within the boundaries of the prior location, but permits him to drift through the senior claim. Besides this, the complexities shown in the figure are certain to arise to a greater or less degree from the practical application of the rule permitting junior locators to place the lines of their claims upon or across those of a senior claim, fully discussed in previous sections (ante, §§ 363, 363a). The contrast between the situation disclosed in figure 45 and that flowing from a different interpretation of the law in other jurisdictions will be observed by comparing figure 45 with figure 50 (post, § 560).

88 Reported in full in 1 Leg. Adv., p. 426.

A very strenuous effort was made by the counsel for the plaintiff to induce the court to deny this right upon the ground that Hall v. Equator Mining etc. Co., 11 Fed. Cas., p. 222, No. 5931, Morr. Min. Rights, 282, 3d ed., 1879, Branagan v. Dulaney, 8 Colo. 408 (1885), 8 Pac. 669, and the Colorado cases based thereon, were not, at the time they were rendered, carefully considered, do not express the true and just interpretation of the United States act, and should be disregarded. I am frank to say that an extensive attempt on my part to obtain a consensus of the opinion of the legal profession, especially those who are prominent in mining law, has convinced me that a very general desire exists in the profession to have this question again presented to the supreme court, based upon the belief that after a more careful consideration and examination of this all-important question of title, the supreme court may reconsider its former opinion and fall in line with the apparently more just rule of the courts of California and Arizona. By reason of this opinion of the bar, and it must be expressly understood that without any intention whatever of presuming to lightly disregard and overrule a decision of the supreme court, I shall decide against what is known as the "Colorado rule" of cross-veins, with the hope and expectation that the question will be finally determined and the very general feeling of doubt as to the rule within the profession set at rest. I feel fortified in my opinion by the language of the chief justice on page 405, in the case of Argonaut etc. Co. v. Turner, 23 Colo. 400, where the significant use of the word "perhaps" is apparent, and also by the opinion of Mr. Morrison, given in his work on crossveins, and again from the information given me as to the consideration given to the case of Branagan v. Dulaney, and also by the comments on Hall v. 39 58 Am. St. Rep. 245, 48 Pac. 685, 686.

39

Equator etc. Co. in first Lindley," section 558, and the California and Arizona cases."1

The facts of the case which called forth the opinion may be illustrated by reference to a diagram (figure 46) which accompanies the opinions of the supreme court of Colorado and the supreme court of the United States, to be hereafter referred to.

The Ajax company owned the Monarch, Mammoth Pearl, and Ajax lode claims, and the Calhoun company

40 1st edition.

41 1 Legal Adv., p. 432. See post, § 560.