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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,1 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:

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"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

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

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presented to the supreme court, based upon the belief "that after a more careful consideration and examina"tion 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 under"stood that without any intention whatever of presum"ing 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 final"ly 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. 400,1 where the significant use of "the word 'perhaps' is apparent, and also by the opin❝ion of Mr. Morrison, given in his work on cross-veins, "and again from the information given me as to the "consideration given to the case of Branagan v. Du"laney, and also by the comments on Hall v. Equator "etc. Co. in first Lindley,2 section 558, and the Cali"fornia and Arizona cases." 3

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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 owned the Ithaca tunnel-site and the Victor Consolidated lode. All the claims of the Ajax company were prior to the tunnel-site and lode claim of the Calhoun company. The outcrop of the vein in the Victor Consolidated, it was assumed, followed practically the course of the Victor side-lines and passed through the

158 Am. St. Rep. 245, 48 Pac. 685. 1st edition. *1 Legal Adv., p. 432.

north and south end-lines of the claim, necessarily crossing the Monarch and Mammoth Pearl claims of the Ajax company and the veins therein. As to these two last-named claims, the Victor vein was therefore essentially a cross-vein.

The questions considered by the court, so far as the subject now under discussion is concerned, were as follows:

(1) Whether or not the Ithaca tunnel is entitled to a right of way through the Mammoth Pearl and Monarch claims;

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(2) Whether or not the Calhoun company has acquired by virtue of said tunnel and tunnel-site location the ownership of the blind veins cut therein,—to wit, veins or lodes not appearing on the surface and not known to exist prior to the date of location of said tunnel-site;

(3) Whether or not the Calhoun company is the owner of and entitled to the ore contained in the vein of its Victor Consolidated claim within the surface boundaries and across the Monarch and Mammoth Pearl.

Judge Lunt held :

(1) That the Calhoun company had no right to drive the Ithaca tunnel underneath the surface of the Monarch and Mammoth Pearl claims, and its further prosecution must be enjoined;

(2) The Calhoun company could not acquire by virtue of the tunnel and tunnel-site location the ownership of any blind veins within the Monarch or Mammoth Pearl locations. All such veins passed to the owners of these claims by virtue of the priority of their location;

(3) As a corollary to this, the Calhoun company is not the owner of any of the ore found in the Victor Consolidated claim underneath the surface of the Mammoth Pearl and Monarch claims, and must pay the value of such ore extracted to the Ajax company.

The judge adds (italics are ours) :

"If the defendant desires to follow its alleged Victor "Consolidated cross-vein as a cross-vein to the veins "of the Mammoth Pearl and Monarch claims, it will "not be entitled to any ore within these claims from "the point where its cross-vein enters the Mammoth "Pearl claim (on the south) until it leaves the north

"side-line of the Mammoth Pearl and again enters "its own territory of the Victor Consolidated lode "claim."

From this we infer that in Judge Lunt's opinion the cross-lode locator has a right to follow the vein through the senior location,-yielding the ore therein encountered to the owner of the latter,-but he could not, as we have already shown, reach the cross-vein by means of a crosscut tunnel (such as the Ithaca tunnel).

The supreme court of Colorado sustained Judge Lunt in all of these rulings, accepting gracefully his apology for reversing the former decisions of that court.1

As to the right of way to which the junior cross-lode locator might be entitled, the court was clearly of the opinion that this was reserved to him, to be exercised within or on the vein, the "space of intersection" being held to mean the intersection of the claims and not vein intersection.

The case was taken to the supreme court of the United States on writ of error, and the decision of the supreme court of Colorado was affirmed, with the exception of that part of it which dealt with the right of way reserved to the junior cross-lode locator. As to this question the court declined to express an opinion, as it was not necessarily involved. We will have occasion to again recur to this decision.3

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

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Calhoun G. M. Co. v. Ajax G. M. Co., 27 Colo. 1, 83 Am. St. Rep. 17,

59 Pac. 607.

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885.

Calhoun G. M. Co. v. Ajax G. M. Co., 182 U. S. 499, 21 Sup Ct. Rep.

Post, § 561.

44 Mont. 234, 2 Pac. 16.

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