force until the same questions have been determined by the court of last resort. The construction of an act of Congress cannot be said to be authoritatively settled until passed upon by the highest court authorized so to do. This is the Supreme Court of the United States. It has never decided the question regarding cross veins as presented in the case at bar. The decision of this court on that question may be reviewed by that tribunal; so that, although this court has given the statutes affecting cross lodes a construction which has since been followed in this state, nevertheless, as these same statutes are still open to construction by the highest tribunal of the land, their meaning on the subject of cross leads as involved in this case has not been finally determined, so as to become stare decisis. In Arizona, California, and Montana a different construction regarding the rights of cross-lode claimants has been given from that announced by the supreme court of this state. Watervale Min. Co. v. Leach (Ariz.) 33 Pac. 418; Wilhelm v. Silvester, 101 Cal. 358, 35 Pac. 997; Pardee v. Murray, 4 Mont. 234, 2 Pac. 16. Whether or not the reasons given for this conclusion are sound is not material. Sooner or later this question must be determined by the Supreme Court of the United States, and when it is the law thus settled must be followed by all the courts of the states and territories in which the act in question is in force. For these reasons we conclude that, although this court has passed upon the identical question regarding cross veins now involved, it is not precluded from again considering it, under the doctrine of stare decisis, or that the law as announced by this court in previous cases has become a settled rule of property in this state; and if, upon a reconsideration of such question, we conclude that our previous decisions thereon were wrong, we should not wait for a superior tribunal to so declare.

Before proceeding, however, with a discussion of this question, we suggest that, were it not for the expression in Argonaut Consol. Min. & Mill. Co. v. Turner, 23 Colo. 400, 48 Pac. 685, the action of the trial court in refusing to follow Branagan v. Dulaney would certainly be subject to criticism. Previous to the act of 1872 relating to mining claims, which, with a few modifications, has been in force ever since its passage, the rights of a locator were practically limited to the vein upon which his location was made. That was the thing granted. The rights to surface ground only attached for the purpose of the convenient working of the vein so located. No rights to any other vein except the one upon which the location was made were given. Under the law then in force, the surface ground, with the vein located, varied-controlled as it was, in a great measure, by local rules, or, in their absence, by the judgment of the land department in each particular case as to the area necessary for the convenient working of the mine; so that, as might be expected, the patents issued under the law prior to the act of 1872 embraced surface areas different and irregular in form. By this latter act a marked change was effected. The surface area which could be controlled

by one location was definitely fixed, and, this area being extensive, it was necessary that rights therein should be definitely declared. The rights of the locator to the mineral which might exist underneath such surface area was no longer limited to the one vein upon which he made his location. By § 2322, supra, it is expressly provided that from and after the passage of the act of which it forms a part the locators of all mining claims theretofore or subsequently made, to which no adverse rights had attached on the 10th day of May, 1872, upon compliance with the laws and regulations governing their title shall have the exclusive right of possession and enjoyment of the surface included within the lines of such locations, and of all veins throughout their entire depth apexing inside of such surface lines extended downward vertically, although such veins might so far depart from a perpendicular in their course downward as to extend outside of the vertical side lines. This section, standing alone, would seem to be clear, explicit, and unambiguous. It provides a test by which the right of a locator to a vein inside of the lines of his location extended downward vertically should be determined, namely, if the top or apex of a lode was within the boundaries of his claim, as above designated, then he should be the exclusive owner thereof; provided, of course, that no adverse rights thereto existed at the date of his location.

It is claimed by counsel for appellant that this section by implication excepts cross veins, because no extralateral rights are given such veins, such rights being measured by the end lines of the claim extended in their own direction, and, as cross veins would not intersect these lines, no extralateral rights would attach to such veins. That question is not involved in this case. Appellant is making no claim to any portion of the veins in controversy by reason of extralateral rights; and, besides, the vein of the Victor Consolidated is given no such rights, because, by the judgment, appellee is only declared to be the owner of that portion of the vein within the boundaries of its claims extended downward vertically. The most that can be said for this section, on account of its phraseology, is that cross veins are not given extralateral rights; and yet we can conceive of a location where a cross vein upon its strike may cross the one upon which the location is made, and intersect both end lines. But granting, for the sake of the argument, that veins crossing the one upon which the location is made have no extralateral rights (but upon that question we express no opinion), this would only operate as a limitation as to such rights, and not as to others which would attach by virtue of a location, for naming limits of a grant is not equivalent to saying that nothing is granted which does not extend to those limits. Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co. 171 U. S. 55, 43 L. ed. 72, 18 Sup. Ct. Rep. $95. It is by virtue of § 2336 particularly that counsel for appellant contend that the portion of the vein of the Victor Consolidated in controversy belongs to the latter,

It may be urged that the construction thus far of this section is in conflict with § 2322, for the reason that under the latter the ownership of the space of intersection would depend upon which vein filled that space. Granted that this may be true, then we must invoke the rule that an act must be construed as a whole; and, if the construction of § 2336, so far given, modifies § 2322, it is not violating any rule applicable to the construction of different sections of the same act, which apparently conflict. This construction, however, does not cause any conflict between the two sections. The former gives to the locator the veins to which his rights attach throughout their entire depth, and if upon their strike (limiting the latter to rights which vested prior to the 10th day of May, 1872), or in descending into the earth, a body of ore bounded by the foot and hanging walls of his veins extended in their general course has been intruded from an other source, or if in descending they unite with other veins, these are not reasons why he should not be the owner of such spaces of intersection, or enlargements of his veins, caused by intersecting or uniting with others, but, on the contrary, according to the terms of § 2322, he should be; provided, of course, that his title is prior to that of the location of the veins intersecting or uniting with his. So that the construction of these sections under the conditions noted renders them har monious, and § 2336 simply recognizes that in conflicts in such cases priority of title should govern,-a test which is clearly in harmony with § 2322, and limits the provisions of § 2336 thus far to easements only. It may also be said that an easement would exist in favor of a junior claimant to follow his vein through the space of intersection caused by veins crossing upon their dip, because by 2322 the locator is entitled to follow a vein in its course into the earth outside the vertical side lines of his location. This may be true, but as to veins crossing on their strike no such right is impliedly given by that section, and, as we have endeavored to demonstrate, such a right was necessary under conditions above noted. In case of locations made subsequent to the act of 1872, which cross each other, or those made under that act which likewise conflicted with locations made prior to the date it took effect, it was also necessary to provide for possible conditions, namely, the respective rights of the claimants of such locations within the conflict of their claims, and particularly for a right of way for the junior claimant and the vital question now to determine is what is meant by the "space of intersection" in such cases as employed in 2336, and which party would own the ore of the vein of the junior location within that

tent of § 2322 was to give the locator of a claim to which no adverse rights were in existence at the date of his location all veins apexing within its surface boundaries. That eminent jurist, Mr. Justice Brewer, with his extended experience in mining litigation, certainly spoke advisedly in Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co. 171 U. S. 55, 43 L. ed. 72, 18 Sup. Ct. Rep. 895 (although the precise question now being considered was not there presented), when he said, in speaking of the rights of a locator under the provisions of this section: "Every vein whose apex is within the vertical limits of his surface lines passes to him by virtue of his location. He is not limited to only those veins which extend from one end line to another, or from one side line to another, or from one line of any kind to another, but he is entitled to every vein whose top or apex lies within his surface lines." To the same effect is the language employed in 101 Cal., 35 Pac., supra. By that section he has been given title to all such veins. Such being the case, was it intended by § 2336 to modify that grant, or vest title in a cross claimant to any part of a vein apexing within the boundaries of a prior valid location, and, especially, what rights were intended to be granted or fixed under the conditions now being considered? It provides that in such cases priority of title shall be the test by which the ownership of the ore at the space of intersection shall be determined. That is in accord with the rights conferred by $2322. Locating, however, is not equivalent to a grant. That language does not import that an exception is carved out of an estate which has already passed. Under the facts now in mind, the senior locator, by virtue of § 2322, would own the ore of the junior cross vein within the boundaries of his location; and, before that right could be devested under § 2336, it must appear from the wording of the latter that such right is thereby expressly excepted. That the language of this section is not susceptible of the construction that creates such an exception, it seems to us is clear, when we bear in mind that which we have already stated, that it does not pretend to deal with the location of cross veins over senior valid locations, but the purpose of which was to provide for easements, and settle rights which otherwise might be doubtful, or the subject of controversy, without some further declarations than those contained in § 2322; and so we conclude that, to render the two sections harmonious, the "space of intersection," as used in § 2336, when applied to the facts now being considered, means the intersection of the claims. Barringer & A. Mines & Mining, 472, 473.

Under $ 2322 no rights were given the owner of a location crossing a prior one to invade the latter for any purpose in following his vein upon its strike. This was an important matter. Without such right, a portion of his claim might be rendered valueless. But, if the expression "space of intersection" is limited to the intersection of veins as the space through which he should have a right

The receiver's receipt, as well as the patent issued appellant, excepted therefrom all veins apexing within the conflict between its claim, the Victor Consolidated, and those of appellee. The patents to the latter granted all such veins, and thus all rights attaching by virtue of priority of location have been preserved to appellee. The location of the Victor Consolidated was junior to that of the claims of appellee, and from this fact, and the views expressed, it follows that appellant cannot complain of the judgment of the lower court in so far as it awards to appellee the vein of the Victor Consolidated, and all veins apexing within the boundaries of the claims of the latter, and awarded damages for the removal of ore. These views are in conflict with the case of Branagan v. Dulaney, and that case, as also those of this court following it, in so far as they conflict with the doctrine now announced regarding conflicting cross claims, are overruled. The language of the judgment of the lower court regarding the rights of appellant in the conflicting territory is very explicit, but only extends to acts of trespass, and does not prohibit those which it may exercise therein by virtue of its ownership of the Victor Consolidated claim.

The determination of the second question presented involves a construction of § 2323, supra. The contention of counsel for appellant is that in all patents for lode claims blind leads are excepted, and that the patentee takes no title thereto by virtue of patent. In answer to this, we have only to advance one step further in the construction of § 2323, and call attention to the fact that the test there applied by which the ownership of veins embraced in a valid, subsisting location is determined is that they apex within the boundaries of his claim extended downward vertically, without regard to where such apexes may be with reference to the surface, so that again the question presented is, Does § 2323 conflict with, or in any manner modify, the provisions of § 2322? and in construing them the same rules must be observed relative to the construction of an act containing different sections that have already been invoked. The former provides what rights may be acquired to blind veins discovered in a tunnel run for the development of the vein or for the discovery of mines, but upon what ground may such tunnel be run, or within what territory must the blind leads discovered therein be located, in order to give the discoverer any rights thereto? A valid location of a mining claim, so long as it is in full force and effect, operates as a bar to a second location of the premises so claimed. Belk v. Meagher, 104 U. S. 279, 26 L. ed. 735; Gwillim v. Donnellan, 115 U. S. 45, 29 L. ed. 348, 5 Sup. Ct. Rep. 1110; Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co. 171 U. S. 55,43 L. ed. 72, 18 Sup. Ct. Rep. 895. The only exception is that a given location leaves open to others such rights therein as do not attach by virtue of such location; in other words, that a location only carries with it such rights as it is entitled

made, and that rights not attaching are reserved to others. It is upon this ground that appellant contends that its rights to the blind leads in question attach; that is, that under § 2323 these veins are impliedly excepted from the locations and patents of appellee's claims. If such a conclusion can be deduced from the sections under consideration, they are hopelessly in conflict, for, first, there is granted all veins the ownership of which is determined in the manner we have designated, including blind, and then, immediately following, the grant to the latter is withdrawn. A location can take no rights which conflict with a prior valid one, so long as it is kept alive. The law contemplates, and the authorities recognize, that the very life of a mineral location depends upon the fact that it is made upon unappropriated mineral domain; and, with the one exception already noticed, this requirement extends to the entire location, that is, it cannot embrace any ground, nor can it initiate any rights, within the boundaries of a prior valid, subsisting location, except those reserved from the latter. This rule extends to all classes of mineral locations; in other words, priority determines the rights between conflicting locations. The tunnel of appellant was commenced upon ground open to location, but at the time it was located, and work thereon commenced, the ground embraced within the claims of appellee had already been located and claimed as lode claims, so that the rights of appellee to the ground within the boundaries of its claims, and the leads in question, had attached before appellant attempted to initiate any title thereto, and therefore none attached by virtue of the location of or work upon its tunnel site, unless it appears that by virtue of § 2323 a tunnel for the discovery of blind leads may be projected across and extended into prior valid, subsisting locations, and title to the blind leads discovered within the boundaries of such claims thus be secured. It provides how inchoate rights to blind veins may be initiated; how they may become absolute; but nowhere does it in terms, either expressly or impliedly, declare that for these purposes it may be projected into or across prior valid locations. To give it the interpretation that it does is to inject a meaning of which it is not susceptible, renders it irreconcilable with the provisions of the section preceding, and overthrows the doctrine of priority, the foundation upon which mining rights rest. It does not provide that under a location for tunnel-site purposes a right is granted to search for minerals in lands belonging to another, or that thereby a location for such purposes can be carved out of appropriated public domain; while limiting it to locations for tunnel-site purposes to ground not previously appropriated renders it harmonious with § 2322. That the latter was the clear meaning and intent of Congress in passing the act of which these two sections form a part is apparent from the further reading of § 2323, which in terms provides that locations, on the line of the tunnel contemplated by this section, of veins