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Home > Journals > Michigan Law Review > MLR > Volume 23 > Issue 2 (1924)

 

Abstract

ln Rico-Argentine Mining Co. et al v. Rico Consol. Mining Co. et al. 74 Colo. 444, the supreme court of Colorado states some interesting propositions of mining law, one of which, at least, seems of rather dubious validity. A suit was brought by the owner of the Allegheny mine to recover for (and to enjoin) a trespass on its property by the owner of the Blackhawk and 'Wide Awake mines, which adjoined the Allegheny on its westerly side. The Blackhawk and Wide A wake locations were senior to the Allegheny, and their owner claimed the right to the minerals under the surface of the Allegheny by virtue of the extralateral right conferred by §2322 of the Revised Statutes of the United States, which permits the owner of a mining location containing the apex of a mineral vein to follow that vein on its downward course even though it go beyond the side lines of the location. The trial court found as a fact that the vein in dispute-which underlay the locations of both plaintiff and defendant and from which the defendant was extracting ore under the surface of the plaintiff's location-did not apex within the defendant's location in such a manner as to confer the extralateral right on the defendant and thus justify the intrusion into the plaintiff's location. The defendant, in support of its motion for new trial (which was overruled by the trial court) presented affidavits to the effect that further development work showed that the disputed vein, in ascending from the point of defendant's operations under plaintiff's location, followed a direction tending toward another vein which unquestionably apexed in one of defendant's locations; the affidavits did not, however, show that the two veins actually came together so as to make the disputed vein a part of the defendant's undisputed vein. If it may be assumed that the evidence justified an inference that the two veins united, the decision of the Colorado supreme court may be supported by §2336 of the U. S. Revised Statutes, ("Where two or more veins unite, the oldest or prior location shall take the vein below the point of union"), as the defendant's locations were prior to the plaintiff's. But the opinion of the court goes further and holds that the defendant is entitled to extralateral rights even in the absence of a showing that the disputed vein unites with the defendant's undisputed and prior vein. The court's view on this point seems open to question.

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