(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 *365both 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; that its -only possible application is to veins which cross on their strike, because parallel veins never do intersect on their dip, and that if it is to be applied to veins which cross on their strike, the necessary inference is that Congress intended that the discoverer of a cross vein should have the right to lay his surface location across the surface location of the intersected vein. But in truth this conclusion is a perfect non sequitur. There is no proposition in geometry plainer or more easily demonstrable than this: that surface locations on cross veins may be so made as not to conflict, while at the same time the portions of the veins included in or covered by the respective locations will intersect in depth—in some cases within the surface lines of one or the other location extended downward vertically, and in other cases altogether without the surface lines of both locations. This results from the fact that veins generally, if not universally, descend into the earth, not vertically, but at a greater or less inclination or dip. This being so, and the law allowing the locator to follow his vein on its dip outside *366of his side lines projected downward vertically, and within the vertical lines of an adjoining or neighboring claim, it may easily happen that the parts of two intersecting veins included within entirely distinct surface locations will intersect in depth either outside of both claims or within one or the other, according to the angle of the dip and the relation of the surface claims to the point where the apices or croppings of the veins intersect.
Suppose, by way of illustration, a north and south vein dipping to the west, intersected by an east and west vein dipping to the north at the same angle. Assuming these veins to be perfectly regular in strike and dip, their intersection will be along a diagonal line descending into the earth from the point of intersection at the croppings (which for brevity I will call point A), and extending in its horizontal projection to the northwest. Now, suppose a location on the north and south vein, commencing three hundred feet or more north of point A, and extending to the north along the vein. It is evident that a full surface claim, fifteen hundred feet in length, and extending three hundred feet on each side of the croppings, may be located on the east and west vein without at all conflicting with the supposed location on the north and south vein, and it is equally evident that such location may be made to include point A, or altogether east of it or west of it. If made wholly to the east it will not include any part of the intersection at the surface or below the surface. If made to extend but a short distance west of point A it will include some of the intersection, but the diagonal of the line of intersection will carry it beyond the vertical plane of the west end line before the dip of the vein carries it beyond the south line of the other location. If made somewhat further to the west, the intersection will fall more or less within the surface lines of the north and south location, and will make a case for the application of section 2336. If made still further to the west, the line of intersection of the portions of the re*367spective veins covered by the two locations will be wholly outside of the surface lines of either location, and still another case for the application of section 2336 will arise. Here, then, are two cases for the application of section 2336, without bringing it in conflict with section 2322, and the mere possibility that such cases might some time arise under distinct locations, each entitled to all the rights conferred by the plain terms of section 2322, was a sufficient reason for incorporating in the law the provisions of section 2336,
Of course, the hypothesis of two perfectly regular veins dipping at the same angle and crossing at right angles is one which will never be realized. But the very fact that veins, instead of being regular and uniform in strike and dip, are in every way irregular and eccentric, increases the possibility of intersections of cross veins under ground, outside of the lines of surface locations, and so far from diminishing the force of the illustration used, only proves how infinitely it might be varied.
If these views are correct, it follows that the only reason ever suggested for construing section 2322 against the plain import of its terms is based upon a geometrical absurdity; and the practice of miners in making, and of the land office in permitting, cross locations on the surface, is without any justification in the mining law.