Wilhelm

This case was submitted to the court below upon an agreed statement, which shows the following facts: Defendant’s grantor, in December, 1879, *359 discovered a gold-bearing quartz vein, which he called the New Idea Lode, and made a valid location thereof, including surface ground fifteen hundred feet long and six hundred feet wide. The New Idea Lode runs nearly north and south through the center of said surface ground, and the land on which the location was made was at the time public, unclaimed, and unoccupied public land of the United States. It is admitted that said location was a valid one, and that since then defendant and his grantor have complied with all the laws and customs necessary to continue the validity of said location. About a year afterwards, to wit, on December 4, 1880, the plaintiffs discovered a gold-bearing lode which commenced east and outside of the said New Idea claim, and thence ran westerly across said New Idea claim at nearly right angles, and intersected said New Idea Lode, and they attempted to locate a claim fifteen hundred feet long and six hundred feet wide across the said prior location of the defendant, and did the formal acts which are required…

(concurring.)—I concur in the judgment and in the conclusion of the court as to the proper construction of sections 2322 and 2336 of the Revised Statutes. I think, however, that too much is conceded *365 both in the opinion of the court and in the argument of counsel for respondent in assuming that the provisions of section 2336 cannot be applied to locations made since the passage of the mining law of 1872, on veins which intersect upon their strike, without bringing it in conflict with the plain terms of section 2322. This wholly unwarranted assumption has been the source of all the trouble and difficulty which the land office and some of the state courts have encountered in their attempts to construe provisions of a statute which are in perfect harmony, but which have been erroneously supposed to be inconsistent.

The sum of the argument in favor of the construction thus imposed upon the statute—which is in effect a nullification of the express terms of section 2322, and a relegation of mining rights to the same condition of uncertainty and confusion in which they were before the act of Congress was passed—has been that section 2336 must be allowed some operation and effect;…