Gilpin observer., 1899-11-30
AN IMPORTANT DECISION.
The Colorado Supreme Court Reverses
Itself on the Apex-side Line Question.

AtScAi Oh tho Apex-Sluo Llhe OueStlOns
A decision jast handed down by the
Supreme Court of Colorado has created
sensation among mining men, mas
much as 1t practically reverses the Gus
tom regarding the rights of claimants
holding cross veins. and advances n
new theory regarding the rights of To-
Gators of tunnel sites.
The case was the Calhoun Gold Min
ing Company, appellant versus the
Ajax Gold Mining Company, appellee,
both holding conflicting claims in Grip
pie Creek district the appellant com
pany holding Il tunnel location, and the
appellee owning several claims of
prior location which the tunnel COM
pany proposes to penetrate.
The Calhoun company claimed that
1t had discovered Il number of blind
leads in the territory of the Ajax COM
pany. some of which cross the vein of
the latter. and claimed the right to the
ore thus found. basing its claim upon
the statute which has heretofore been
construed in such II manner as to give
the prior location all the ore found at
the point where the veins intersect
each other, but permitting the junior
location to work its vein up to the line
of the conflicting vein and follow its
own vein through the claim of its op-
ponent.
So well has the principle been estab-
lished that when the District Court of
Ell Paso county several months ago
enJoined the Calhoun company 'from
further taking out. extracting or re-
moving ore by means of said tunnel or
otherwise. from within the side and
end lines of the plaintiffs said claims.
extending downward vertically" lthe
plaintiff in the case being the Ajax
company. the decision was regarded as
an absurdity. reversing as it did all
previous decisions on this important
point and the customs of all mining
communities since the passage of the
act of 1872. which declares explicitly
in section 1896 that such prior loca-
tion shall be entitled to all ore or min
eral contained within the space of in
tersection: but the subsequent location
shall have the right of way through
the space of intersection for the pur-
poses of the convenient working of
the mine
In sustaining the decision of the
lower court the Supreme Court takes
the ground that in constituting the
statute 1t must be taken as n whole:
that discrepancies between the differ
ent sections of the same act must be
reconciled. if possible. and that where
applied on account of n long series of
erroneous decisions. it should be dis
regarded If the harm that might result
from its perpetuation would be greater
than that already done. 1t has been
held that the mining industry is in its
infancy and that to maintain the
theories and construction of the law
upon which the question involved in
the case have heretofore been decided
would be to work n serious injury to
the rights of claimants.
The decision has the practical effect
of giving prior locations the right of
all veins crossing their side lines and
to all blind lodes existing within the
territory embraced within the side and
end lines of the claim, and makes side
lines as well as end lines the limits of
operation in following vein on its
vertical dip.
The crossing of two veins practically
parallel on their dip was also con
sidered by the court and the same
principle held to apply
The court has also decided another
point in the same case. and that is,
where Il mining property has been TAX
en- up and patented without having the
mineral in place in direct contradiction
to the law. which allows citizens of the
United States to take up mineral land
and patent the same. but provides that
if in doing so they shall expose min
eral in place. the patent or receiv-
er's receipt to such territory shall be
given as prima facie evidence that the
owners of the claim had complied with
the law and that no subsequent claim
ant can set forth the fact that the
ground was patented without any vein
of mineral in place having been dis
covered on the property
1t seems TO us. says the Western
Miner and Financier. that decision
of that kind Is simply an invitation TO
commit fraud. Our experience has
taught us that great many fraudu-
lent entries are being made to-day by
parties who. just as soon as they find
Il camp springing into prominence be-
cause of some recent discoveries. go to
work and patent up the territory around
as mining claims without any attempt
to find mineral on them, not only fail
ing to open up the property to
benefit themselves. hut practically pro.
hibiting any one else from doing so. A
decision of this character seems to us
TO be an encouragement to that kind
of fraud and in direct opposition to
the intent OF Congress when II passed
the law throwing open the mineral
lands to settlement and location, ms It
has always been understood that the
intent Of Congress. at that time and
since then In subsequent acts. has been
TO have the mineral territory of the
United Stntes exploited, the mtles
opened up and the riches contained
therein extracted for the benefit OF the
human race and to increase the wealth
of the country.