that there had been no opposing or adverse claim to the premises "for two years last past," that being the statutory period of limitation for actions relative to mining claims. The court below seemed to take the view that these proceedings in the Land Department of the United States constituted an authoritative adjudication of the truth of the statements in the application, which bound the plaintiff. And counsel for defendant strenuously argues that, as the law of Congress provides that actual possession, without any adverse claim, during the period of statutory limitation, gives a right to a patent, and as the application in question put the right to a patent on that ground, therefore it should be held to have been conclusively adjudicated that the Wyoming claim was located at least two years before the date of the application, which would be March 8, 1871.

If the determination of this appeal necessarily involved the correctness of the ruling of the court below on this point, a very grave question would be presented. Where an application for a patent to mining land has been filed in the United States Land Office, and notice thereof given as required by statute, and no adverse claim has been filed, and the proceedings have regularly culminated in a patent, it may be said generally that the proceedings are conclusive against a third person as to those things with respect to which he might have filed an adverse claim. But, with respect to the united ledge which was afterward discovered to be a union of the Wyoming and the Phillip, there was nothing in the application for a patent to the Wyoming claim which called for any contest by the owners of the Phillip. The application for the Wyoming claim, if granted, would result in a patent for only the surface ground claimed, and the ledges whose apexes were within it. If it should turn out that a ledge within that ground united with another ledge, the property of an adjoining owner, the ownership of the united ledge would have to be determined upon the principle of priority of location. Moreover, at the time of the Wyoming application and patent, the union of the two ledges at a great depth in the earth was entirely unknown, and not even suspected. The owners of the Phillip ledge, therefore, with respect to the

present claim to the united ledge, would and could not have had any standing in the land department as adverse claimants to the Wyoming application. It is therefore somewhat difficult to see how the question of priority of location between the Phillip and Wyoming ledges could be adjudicated in a proceeding in which the location of the Phillip ledge was not involved at all; or how ex parte proof, offered in the Wyoming application for the satisfaction of the United States Government, is admissible in the case at bar, where the contest is about something not appearing on the face of that application, or involved in that proceeding. If, therefore, the determination of this appeal necessarily depended upon the correctness of the ruling of the court below, admitting the proceedings in the land office in evidence, we would be strongly inclined to hold such ruling to have been erroneous. In the view which we take of the case, however, it is not necessary to pass conclusively upon that question.

The court below found that there was no valid location of the Phillip ledge until 1879-about five years after the issuance of the Wyoming patent. The finding is "that no boundaries of said location [the Phillip] were ever marked upon the ground so that the same could be readily traced prior to March 25, 1879." This is a finding of fact; and, unless it can be successfully attacked as not being supported by the evidence, then it is immaterial whether the admission of evidence to show a location of the Wyoming claim at a date prior to the patent was erroneous or not; for, of course, the title of defendant would be good, at least from the date of the patent, and if at that time there was no location of the Phillip claim, then the Wyoming must be held to have been the prior location. And as to the sufficiency of the evidence to support the finding on this point, we need only say that we could not disturb that finding even though we were to go far beyond the limits of the rule so often laid down by this court for the review here of questions of fact. There was clear proof of a location of the Phillip claim on the twenty-fifth of March, 1879; and the court found that there was a location on that day, but that there was none prior to that time. Now, to upset this finding, it must be

affirmatively shown that, under the evidence, it was the clear duty of the court, forced upon it by evidence without material conflict, to find a location of the Phillip claim prior to 1879, and, indeed, prior to 1874-the date of the Wyoming patent. But such a proposition is clearly not maintainable. We, of course, will not recite the evidence here; and it is sufficient to say that if the court had found the other way it would have done so upon an exceedingly slender basis.

The record shows many exceptions to rulings of the court admitting or rejecting offered evidence; but they mostly relate to evidence offered to prove or disprove a location of the Wyoming at dates prior to the patent. But, as we have stated, these rulings, whether right or wrong, were immaterial. With respect to the rulings of the court upon offers of evidence to prove or disprove the true dates of the locations of the Phillip ledge, and of the other claims of appellant, we see no material error. (What has been said of the Phillip ledge applies equally to the small location claimed by appellant called the "Muller," and also called the "Ural Extension." It is in the same category with the Phillip, except that the court also finds that it was never marked on the ground so that the boundaries could be readily traced, and that no gold-bearing ledge having its apex within the claim was ever discovered.) And, as the alleged trespasses were committed upon the united ledge claimed by appellant by virtue of its ownership of the Phillip ledge, the above views are determinative of the main controversy in the case against the appellant.

2. There are two other propositions presented by appellant. The respondent has a patented mine called the "Ural;" and the appellant claims a ledge in its adjoining ground called the "New Year's" and "New Year's Extension." And appellant contends that near the southerly end of respondent's ground the Ural ledge passes through the side line of the Ural patented ground into the New Year's ground; thus making said side line, in law, an end line. But the court finds that said line is not an end line of the Ural ledge of respondent, and that there is no sufficient evidence to show where said ledge crosses the lines of the Ural patent. It

finds, also, that the location of the Ural mine was prior to that of the New Year's claims of appellant. Moreover, it finds that respondent has not mined, and does not threaten to mine, any ground claimed by appellant, except the united ledge formed by the junction of the Phillip and the Wyoming as above stated. And these findings are sustained by evidence. There is therefore no basis here for an injunction or damages.

3. At the northern end of the Wyoming patented ground there is another patented claim called the "Schmidt Claim," owned by the Nevada City Mining Company. And appellant contends that the north line of the one was not identical with the south line of the other; that is, that between the north line of the Wyoming, as patented, and the south line of the Schmidt, as patented, there was a small piece of ground not included within the lines of either patent; and that, therefore, the respondent would not be entitled, as against the owners of the Phillip, to follow the Wyoming ledge under this piece of land, or to the united ledge if found there. But the court found, upon sufficient evidence, that the Wyoming and Schmidt locations were both long prior to that of the Phillip; that they always adjoined each other on the north and south; that the southwest line of the Schmidt patent was for a long distance identical with the north line of the Wyoming patent; and that, where these two lines were thus identical, the Wyoming ledge crosses over the Wyoming patented ground into the Schmidt patented ground, leaving no intermediate ground between the two claims. This undoubtedly gave to the owners of the Wyoming and Schmidt claims the entire ownership of the ledge from the northerly end of the one to the southerly end of the other, with the exclusive right to follow its dips and angles laterally. It appears that at a point a considerable distance easterly of the point where the ledge crosses the line common to the Wyoming and the Schmidt, as aforesaid, the northerly patented line of the Wyoming and the southerly patented line of the Schmidt diverge, leaving a small triangular piece of ground between; and the two companies, by agreement, divided this piece of land-or, rather, the right to work the ledge under it-between them. This

they had the right to do, as against any third party subsequent in location.

From a thorough examination of the whole case we find no reason to disturb the judgment of the court below.

Judgment and order affirmed.

We concur: PATERSON, J.; SHARPSTEIN, J.; THORNTON, J.; TEMPLE, J.; McKINSTRY, J.

SEARLS, C. J., having been of counsel in the court below, did not participate in the decision.

LEE ET AL. V. STAHL.

(13 Colorado, 174; 22 Pac. Rep. 436. Supreme Court, 1889.)

Force of the opinion on former appeal. When the law governing a case has been once declared by the opinion of an appellate court on a direct appeal or writ of error, such opinion, on the retrial of the same case upon the same state of facts, is higher authority than stare decisis; it is res judicata, so far as the particular action is concerned.

Cross Lode need not adverse. A true cross vein is excepted out of the grant of the patent by virtue of Section 2336, Rev. St. U. S. And, whether a junior or senior location, it is not affected by failure to adverse, except at the point of actual lode intersection. Section 2344 does not ex proprio vigore reserve out of the grant rights other than cross veins acquired prior to the act of 1872, but secures the protection of such rights to those who avail themselves of the adverse procedure prescribed by the act itself.

The crossing of lodes does not mean the crossing of two patents, but the actual crossing of the two veins themselves. Veins which unite, but do not cross each other, are within the excep

tion of Section 2336 when they unite on the "dip," or in their downward course; but not when they unite on the "strike," or on their horizontal extension. The word "below," in Section 2336, does not mean "beyond."

Object of the Act to settle conflicts. It was the design of the act of 1872 (Sections 2325, 2326, Rev. St. U. S.) to have all conflicts, so far as

1S. C. on former appeal, 9 Colo. 208: 11 Id. 179. Morgenson v. Middlesex Co., 17 Pac. 513.