section being to some extent within the extralateral right of both claims, but without any conflict at the surface. While the illustration is necessarily imperfect, owing to the difficulty of presenting such conditions by the method of perspective, yet it serves to demonstrate the persuasive force of the chief justice's views. This construction of the law disposes of the necessity of harmonizing supposed conflicts between different sections of the statute, giving operation and effect to all its provisions.

The practical application of the Arizona-California rule is shown in the accompanying figure 50, which represents a quarter section of land covered by official min

ing surveys in the Grass Valley region of the latter state, in which locality the California case arose.

A comparison of this figure with the one illustrative of the Colorado rule, shown on page 921, illustrates the radical difference

between the two doc

trines. The irregu

larly shaped surfaces shown in the California illustration are accounted for by patenting a number of claims in one group, showing only the exterior lines of the compos

25

FIGURE 50.

ite, a practice at one time followed by the land department. Under the existing rules, group surveys preserve the interior lines of all individual locations embraced therein. The Arizona-California rule denies to the junior cross-lode locator the ownership of any part of the crossvein within the boundaries of the senior location. The later Colorado decisions accept this as a correct exposition of the law.

As to any right of way reserved to the junior crosslode locator through the senior crossed claim, there was no discussion in the California case, but it is quite manifest that the analysis by the court of the federal mining laws and its expressed views therein negative the idea that a junior locator has any such right of way.

In the Arizona case this question was necessarily involved, as the entry by the junior cross-lode claimant (the Little Comet, on figure 48, ante) was by means of

a tunnel or drift along the so-called cross-vein. The decision denies the right of the junior cross-lode locator to enter within the limits of the prior location.

2 561. The views of the supreme court of the United States. The supreme court of the United States in reviewing the decision of the supreme court of Colorado in Calhoun Gold M. Co. v. Ajax Gold M. Co.,1 specifically considered each of the questions passed upon by both Colorado courts, and in affirming the judgment approved the views announced in the Arizona-California-Montana cases and the Colorado case under review, to the effect that the senior locator owns all veins, whether appearing on the surface or blind, found within his location, and a junior cross-lode claimant has no right to any ore found within the boundaries of the senior location. It also sustained the view of the courts below, which denied the right of the tunnel locator to penetrate the bounding planes of the senior location.

As to the right of way problem, it said:

"Section 2336 imposes a servitude upon the senior "location but does not otherwise affect the exclusive "rights given the senior location. It gives a right of

way to the junior location. To what extent there may "be some ambiguity; whether only through the space "of the intersection of the veins, as held by the supreme "courts of California, Arizona, and Montana, or "through the space of intersection of the claims, as held "by the supreme court of Colorado in the case at bar. "It is not necessary to determine between these views. "One of them is certainly correct, and therefore the " contention of the plaintiff in error is not correct, and, "more than that, it is not necessary to decide on this "record. A complete interpretation of the sections would, of course, determine between these views, but

1182 U. S. 499, 21 Sup. Ct. Rep. 885.

66

on that determination other rights than those sub"mitted for judgment may be passed upon, and we prefer therefore to reserve our opinion.

46

562. General deductions.—We may here recapitulate the net result obtained from a consideration of all the adjudicated cases on the subject of cross-lodes. All courts now agree upon the following propositions:

(1) The grant to the senior locator is of all veins found within his location regardless of their course, and whether they were previously known to exist or were blind and undiscovered. There is no limitation implied, and the grant is exclusive. A junior cross-lode locator has no right to any ore found upon the cross-vein within the boundaries of a senior claim;

(2) The owner of a junior tunnel-site cannot by means of a crosscut tunnel penetrate within the boundaries of a senior claim for any purpose.

As to what rights of way the owners of junior located veins may have as against senior claimants where the veins intersect or cross, it may be said that all courts agree that where two veins cross on their dips, the senior takes all the ore within the space of vein intersection and the junior has a right of way through the space. The same may be said of veins crossing on their strike or course where there is no surface conflict between the locations, as illustrated in figure 49A.

But where there is a surface conflict, and there are cross-lodes and cross-locations such as were considered in the various cases heretofore illustrated, there is a disagreement.

In Colorado and Montana the junior cross-lode claimant has a right to drift through the senior claim, follow

ing the cross-vein, yielding the ore encountered to the senior locator.

In California and Arizona he has no such right. Until the supreme court of the United States finally approves one or the other of these views, each state and territory will be left to determine which of the two conflicting rules is best supported by logic and reason.