"of the surface ground might maintain 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." This, as we have seen, is the rule ultimately adopted by the supreme court of Colorado. 2560. The Arizona-California rule.-A case arose in Arizona out of the following facts, which are illus MAMMOTH WIDE WEST M.G. RAIN BOW M.C Jan. 11885 LITTLE B Jan. 11882 BLACH EAGLE M.G. Apex 30ff from Surface trated by a diagram, which we here reproduce as figure 48. 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 area is shown on the diagram. The earlier Colorado rule was urged in support of their contention. Tunnel on JOOFILOVA BIG COMET FIGURE 48. 110th ed., p. 127. The supreme court of Arizona declined to follow the original doctrine of the Colorado courts, and in a wellconsidered opinion1 asserts that, "The construction urged and supported by the "Equator and subsequent Colorado decisions violates "the language 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: 66 66 "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 ex"tended 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, 'Com"ply with the requirements that we impose, and the "government of the United States will grant abso"lutely to you a piece of the earth bounded at the sur""face by straight lines, distinctly 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 there"under easy of ascertainment." 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 1 Watervale M. Co. v. Leach (Ariz.), 33 Pac. 418. Lindley on M.-59 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 Colorado1 only so far as it affected the right to the ore at the space of intersection. 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,2 and the supreme court of Utah, by a divided court, coincides with the views announced in California; 3 but as to locations made subsequent to 1866, the supreme court of California agrees with the supreme court of Arizona. 2009! LODE LINE NEW FIGURE 49. M. 1500 The question presented to the California court 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 49, the New Idea being prior in point of time. In an elaborate opinion, written before the Arizona decision was published, the California court reached 1 Lee v. Stahl, 13 Colo. 174, 22 Pac. 436, 9 Colo. 208, 11 Pac. 77. * Eclipse G. and S. M. Co. v. Spring, 59 Cal. 304. 3 Blake v. Butte Silver M. Co., 2 Utah, 54. 4 Wilhelm v. Silvester, 101 Cal. 358, 35 Pac. 997. the same conclusion as that enunciated by the supreme court of Arizona. 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 wide 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 forcible reasons for the rule announced by the court. 66 66 He says: "There is no proposition in geometry plainer or more easily demonstrable than this: that surface locations on cross-veins may be so made as not to conflict, while "at the same time the portions of the veins included in 66 or covered by the respective locations will intersect in "depth-in some cases within the surface lines of one "or the other location extended downward vertically, "and in other cases altogether without the surface lines "of both locations. This results from the fact that "veins generally, if not universally, descend into the "earth not vertically, but at a greater or less inclina"tion or dip." Chief Justice Beatty's view is, that the law under consideration was intended to meet the conditions assumed by him, an underground crossing or intersection of two veins on the strike or dip, without any surface conflict between the two locations. We have endeavored to present the case assumed by him on figure 49A an isometrical projection exhibiting two veins intersecting on their strike, or partly on the strike and partly on the dip, the plane of inter 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 |