United States Court of Appeals For the Ninth Circuit . different. Also see Costigan, page 441, note 112, where theauthor in discussing this case points out the error of 10 the Court in failing to determine the case upon thebasis of extralateral rights and states that to the extent of such failure the decision mustbe wrong. While the case has the support seem-ingly of JValrath vs. Champion Min. Co., 171 U. S.,293, that case is discredited as the discussion inthis section (infra p. 447) shows, and any wayshould be confined to locations under the Actof i866.» And the author then points out furthe
United States Court of Appeals For the Ninth Circuit . different. Also see Costigan, page 441, note 112, where theauthor in discussing this case points out the error of 10 the Court in failing to determine the case upon thebasis of extralateral rights and states that to the extent of such failure the decision mustbe wrong. While the case has the support seem-ingly of JValrath vs. Champion Min. Co., 171 U. S.,293, that case is discredited as the discussion inthis section (infra p. 447) shows, and any wayshould be confined to locations under the Actof i866.» And the author then points out further inconsistenciesin the decision. In the Niagara-Black Rock case {Fitzgerald , 171 U. S., 92) the Supreme Court of theUnited States has held that a junior claimant is en-titled to exercise an extralateral right, even under-neath the surface of a senior claim containing a por-tion of the apex of the vein in question and is diamet-rically opposed to the Jefferson vs. Anchoria Lelandcase. The Fitzgerald-Clark case is illustrated by Dia-gram ictr^^S /*/ Diagram D. II The Black Rock was the older claim with part ofthe apex. The ore bodies in dispute were underneaththe Black Rock surface beyond the point where thevein passed out of the side-line common to the twoclaims. Such ore bodies were in a sense intralimitalto the Black Rock, but extralateral to the State Court and the Supreme Court of theUnited States in effect denied to the Black Rock anyintralimital rights on that portion of the vein under-neath its surface extending beyond the point wherethe apex crossed the side-line, awarding such under-ground parts to the Niagara—the junior claim—under its extralateral right. The case of Ajax Gold M. Co. vs. Hilkey, 31 Colo.,131, decided by the same Court that decided theJefferson-Anchoria case, but at an earlier date, in ouropinion, expresses tne correct rule to the effect thatthe extralateral right on a secondary vein is deter-mined by the length of apex of
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