Tim Cooney/Aspen Journalism
ASPEN – Visitors and locals alike have all looked at the Compromise Mine structure, a compelling anachronism at the top of Little Nell ski run on Aspen Mountain, and wondered what exactly is going on there.
The answer is that this throw-back modern venture is the site of a historic reckoning between populists and Gilded Age capitalists that set national mining law precedent and framed Aspen’s first economic boom during the mining days of the 1880s and 1890s.
In its present iteration, the Compromise stakeholders are trying to find a way to preserve the last functioning mining tunnel into the heart of the mountain, where the romance of an undiscovered wealth of silver still lies.
This yesteryear mystery is the cachet of the operation. The complex now stands as a tidy, modern likeness of the ramshackle shacks around the many mine holes that once populated the flanks of Aspen Mountain well before the skiing era.
In 1985, the nascent Compromise group, made up of local mining enthusiasts, utilized a wrinkle in 1872 mining law, which allowed them to take over the Emma claim — now popularly called the “Compromise Mine”— after documentation of the required yearly maintenance expenses was not filed with Pitkin County. They then formed the Aspen Mountain Mining Company to work the claim, right in the heart of modern skiing.
Chris Preusch, an Aspen High School grad who is an active shareholder in the new mining company, and who runs a landscaping business in the valley, recalls a mining axiom that sums up the intrigue: “You’re either a dollar away from a million or a million away from a dollar.”
The Emma claim was originally staked in 1880, and the Compromise tunnel there still accesses the complicated underworld of some 14 levels of historical mining exploration, with uncountable side drifts, inclines, shafts, winzes, and stopes that followed the ore. Many intersect like the interior of an anthill, from the top of Aspen Mountain to several thousand feet below the city of Aspen itself.
The story of how the current mining company became what it is today began 136 years ago in November 1879, when a party of prospectors led by Charles Bennett — some of the very first Aspen pioneers — discovered a silver outcropping along the Spar Ridge.
This find became recognized as the apex vein of the upper Durant Mine, a geological summit poking out of the earth that rocked the world of mining law, leading to the nationally watched 1886 “Apex-Sideline” trial in the U.S. District Court in Denver.
One can spot the former apex site today by looking west from the gondola at the sharp cliffs above the mine dumps. About 40 yards uphill of the Bonny Bell mine dump, where the cliff face meets the ground, is the forgotten, now steel-covered entrance to the upper Durant.
In the early 1880s before the climactic Denver trial, the proxy wrangling over the issue of ore ownership between Aspen’s Victorian magnates David Marks Hyman and Jerome Byron Wheeler polarized the town. In their fight, Hyman became characterized as the controlling outside capitalist, while Wheeler, though a capitalist himself with diverse Aspen assets, agitated the populist belief that working people were being deprived of their right to prosperity by the likes of Hyman.
The resulting legal battles over ore ownership in adjacent mines put much of Aspen’s early development on hold. But with the jury’s 1886 Denver decision and a historic compromise thereafter, the frenzied silver rush in Aspen became unleashed, running until 1893 when the U.S. government quit buying silver.
Stake your claim
Imagine the scene as the Bennett party of prospectors arrived in Aspen from over Hunter Pass (now known as Independence Pass) in July of 1879 to an unpopulated valley, camping at the Ute Spring at the south end of today’s Spring Street. The hungry pioneers might have fried some salt pork in a pan over their fire, then mixed some flour, water and sugar into the hot grease to make dumplings, washing it all down with a bit of pot-boiled coffee laced with cheap whiskey.
While keeping an eye out for Ute Indians, who had been pushed out of their western Colorado territory by the expansionist Manifest Destiny policy, they scrambled over the upthrusting rocky ledges on Aspen Mountain and staked out claims where they found minerals.
These early fortune hunters had the right under 1872 mining law to stake out a maximum-sized 1,500- by 600-foot unpatented claim on government property, the object being to lay down a rectangular claim with four corner stakes so that any mineral outcroppings were near the middle. This established a lease to extract the find as long as annual maintenance fees were paid.
With a bit more investment, an unpatented claim could be upgraded to a patented claim. This granted actual ownership title as well as the unregulated right to build on the property, along with rights to the surface resources (timber, etc.) and underground minerals.
The prospector (or partners) first staking an unpatented claim might then leave his name, date, and a description of the dimensions reckoned with a pocket compass on a scribbled note in a can. Then he would have 60 days to get to a land office to file his claim and 120 days to get an official survey. Often he fancifully named the claim after his homeland, a sentiment, or a woman, such as Aspen Mountain mining claims the Irish “Connemara,” “Jefferson Davis,” and “Emma.”
If word leaked that a prospector had found a lode, others would quickly stake out adjacent claims, sometimes overlapping his if there were any surveying discrepancies. Because of the importance of “the first in place, first in rights” principle, the original claimant often faced legal expenses fighting exploitive encroachers. Such frenzied activity might turn up bigger money that would then buy out and patent all the claims under a new mining company.
Today, federally administered lands in 19 states still allow unpatented claims. But in 1994, as environmental concerns and recreational uses trumped industrial mining, the Bureau of Land Management put a moratorium in place stopping the patenting of claims.
In 1985, the Emma claim was in limbo status. Led by the late Stefan Albouy, a native Aspenite who carried a retro vision of Aspen’s silver mining and whose friends say he was born a century too late, a small crew of modern prospectors devised a 19th-century strategy.
The key to their enterprise was perfect timing. Albouy, after spending a watchful day in the Pitkin County Clerk’s office, caught a deadline anomaly. Maintenance on the Emma claim and a minimum of $200 in improvements hadn’t been documented.
At the time, the Aspen Skiing Co. had been trying to manage a hodgepodge of mining claims on Aspen Mountain, many donated by D.R.C. Brown Jr. when the original Aspen Skiing Corporation was first formed in 1946. Somehow the Emma, at the top of Little Nell, previously maintained by Aspen’s infamous Jim Blanning — known for his one-time horse trading of local mining claims — fell through the cracks.
First thing in the morning at the clerk’s office, Albouy checked the claim’s status again. The annual improvements still hadn’t been documented. Wasting no time, he went up Aspen Mountain and staked out a new unpatented claim on the legally expired Emma lease. Soon after, his small group of stockholders formed the Aspen Mountain Mining Company and began working the area.
Albouy championed old mining law and managed to become the propelling partner in the Compromise as well as the Smuggler mining operations on Smuggler Mountain, both operations sharing an assortment of the same shareholders.
Tragically, Albouy ended his own life with a bullet to the head in 1994. In some kind of Old West congruity, Blanning did the same in 2008. Yet both were friends who shared an affinity for the old mining days that had left them behind in the future.
Though the original Emma claim on which the current Compromise tunnel now sits is still unpatented, the buildings and upgrade work there were approved by the federal government in 1986 as servicing necessities for a working claim.
At first the reaction to the rebranding of the Emma was a surprise on many fronts, particularly to Pitkin County and the Aspen Skiing Co. But the rejuvenated mining operation and the ski company soon realized their mutual benefits — not so much the county.
Pitkin County red-tagged the work in 1986, but in a court hearing the miners’ attorney established that the county had no jurisdiction because federal law trumped the county. Before beginning work there, the new Compromise group had to put up a bond with the Colorado Division of Mining Reclamation that would pay for any structures to be scraped clean if the claim were ever abandoned.
At that point, Preusch says, “We established our right to be there and continue making improvements per existing mining law.”
Next, they cleaned out a cave-in at the entrance, reinforced the tunnel, put up the period-style structure that one skis past after rounding Kleenex Corner, and called it the “Compromise,” after the historic agreement that followed the 1886 court case in Denver.
With that, they turned another page in the history of Vallejo Gulch, now known as the Silver Queen ski run, where once a cluster of mines fought over the same silver-rich vein. Tracing the history of the gulch is like untangling a wad of knotted rope.
Settled mining law before 1884 held that the owners of a hard-rock claim where the apex of that mineral vein appeared at the surface within their staked-out boundaries owned the continuous vein as deep into the ground as it went. This included the right to follow it outside the vertical sidelines of the original claim, even if it continued into adjacent claims.
The difficulty then, without modern seismological tools, was in proving that your vein was continuous. Popular sentiment in Colorado disputed this principle because it meant that a handful of mining companies would control all the mineable ore, nullifying nearby claims of so-called “sideliners.”
Little did Hyman realize what he was in for when he acquired the Durant, Smuggler, and a handful of other claims in 1880 with a $5,000 deposit. As a Harvard-trained lawyer from Cincinnati who was not particularly wealthy, he entered the deal on speculation, figuring he could afford to lose that much if things went south.
New Yorker Jerome B. Wheeler, a partner in Macy’s department stores, already had a fortune when he purchased shares in various Aspen mines in 1882. By 1883, when he came to town in a stagecoach to see his assets, silver mining potential was writ large and he became a hero by completing the town’s first smelter and forming the Aspen Mining and Smelting Company. That smelter stood on the east bank of Castle Creek, opposite today’s Holden Marolt Mining and Ranching Museum.
Wheeler amassed numerous Aspen interests, including infrastructure, banking, investment in the incoming Colorado Midland Railway and, later, the Wheeler Opera House and Hotel Jerome. His holdings included shares in mines that surrounded Hyman’s Durant apex vein, most notably the Spar and the Aspen.
Though Hyman invested in town three years earlier than Wheeler, Hyman became defined as the meddlesome outside developer, while Wheeler was magnified as the civic populist looking out for the sideliners, citizens, and small businessmen. In actuality he increased his wealth, tried to pay his debts, but left mostly bankrupt after the 1893 economic crash.
As Hyman’s Durant apex on Spar Ridge showed promise, nearby mines were trying to tap the same lode. Running consecutively across the top of Little Nell from east to west from today’s Kleenex Corner to the ridge where the 1A lift currently unloads were the Spar, Vallejo, Emma, Aspen, Connemara, Schiller, and Jefferson Davis mines. On the east side of Spar Ridge, the Bonny Bell bored in, too. By angular calculations, they all hoped to hit the Durant vein deeper down.
While this neighborhood exploration ratcheted up, Hyman sold other assets to make ballooning payments on the valuable Durant. Of this interim time, Hyman wrote in his autobiography, “The Romance of a Mining Venture,” that he was like Dickens’ opportunist character Micawber in “Great Expectations,” “waiting for something to turn up.”
Much to Hyman’s ultimate benefit, in 1884 something did turn up. The Emma claim, which blatantly sidelined the Durant unchallenged, struck valuable ore. That set off a scramble for the bordering mines to dig deeper, bringing the legal issue of the apex and sideline to a boil.
In November of 1884, right next to the Emma, the Aspen mine, leased by Aspen’s Mayor J.D. Hooper, hit the rich “contact.” Hooper had successfully calculated the sideline angle to the Durant vein and found high-grade silver at 120 feet. Working the strike around the clock, he stockpiled ore on empty town lots with armed guards. He processed some at Wheeler’s smelter — which opened in the summer of 1884 — and saved the rest to ship later by train. In 60 days he stockpiled $600,000 ($15 million today) in ore.
The frustrated owners of the Aspen mine, including Wheeler, Henry “Granpap” Cowenhoven (and in-law D.R.C. Brown Sr.), and Elmer T. Butler, who sorely wanted to work their mine, had to wait out the 45 days Hooper had left on the lease.
While Wheeler had an interest in the Aspen, he also had an interest in the Emma and the Spar. Hyman had earlier offered to sell him the Durant, but Wheeler held out for a lower price, figuring Hyman couldn’t afford the legal expenses of a fight.
Meanwhile, word spread that serious silver had been found in Aspen and people flocked there to strike it rich or to start businesses. Hyman would later complain in his biography that there was standing room only on the Denver to Leadville Midland train.
You’re so vein
Hyman finally had enough of his neighboring vandals. As a man of principle, he believed he had a strong case and he set about raising capital to fight Wheeler, whose lawyers told him anti-apex sentiment would prevail if he went to court.
“Apexers” had a hard time proving that their vein ran unbroken into the earth, while “sideliners” maintained that ore pockets were often separate impregnations, and therefore they had the right to their discoveries. More mines, more miners, more businesses, and more prosperity for Colorado characterized the position of the sideliners.
In neighboring Leadville, jurors were openly hostile to supporting the apex principle. As a result of this nearby court sentiment, Aspen mines routinely ignored the law.
With this issue swirling, other claims that allegedly preceded, abutted, or overlapped the upper Durant outcropping became part of the legal churning. Though knowing that wealth lay below them, many Aspen mines ceased working while they waited for cases to be settled.
As early as Nov. 3, 1883, the Rocky Mountain Sun had complained that, “Litigation is the chief obstacle to the claim progress of the camp.” Had mining in Aspen been legally unbridled between 1880 and 1887, who knows how much more ore would have been extracted. Aspen Mountain might have been even more of an eggshell than it already is.
By 1884, Hyman sought to settle the apex-sideline matter by directly challenging the Aspen mine in court. This angered most townspeople, who saw Hyman’s legal position as holding back Aspen’s growth.
Wheeler, along with the overwhelming majority of citizens, proclaimed that the apexers were a capitalist racket. The newspapers denounced Hyman with his lawyers and his minority of high-minded backers. The Sun, on June 6, 1885, denounced the “apex horror” and compared it to the plagues of Egypt.
Yet Hyman found more partners willing to back his legal quest for shares of the ore that lay in waiting, convinced that the Aspen claim was stealing his underground property. Any legal expenses would be worth the payoff. But this proved to be a rocky road, costing more in legal fees than he ever imagined.
See you in court
Hyman gathered his legal team and expert mining engineers to bolster his case. He set to work following the Durant incline vein from the Spar Ridge down toward the invading mines below, to prove the contiguity of his vein.
In 1885, much to the shock of Aspen, after a three-week oral hearing before Judge L.M. Goddard in the District Court of Pitkin County, Goddard ruled that the Durant vein dipped into the boundaries of the Aspen, that it was continuous, and that the ore belonged to Hyman.
Wheeler and his attorneys then moved for a jury trial before the Federal District Court in Denver because the apex issue went beyond state boundaries. His lawyers told him that with the change in venue the statewide sentiment for sideliners and universal prosperity would prevail.
With this good news, Aspenites exulted that the sideliners would surely triumph in Denver. The Sun reported on July 25, 1885, that “Hundreds of pounds of Giant powder exploded on old Aspen Mountain’s side. A huge bonfire lit up the streets and apex men were hung in effigy and burned from a rope strung between two telegraph poles.”
On the same night Aspen erupted with hope, Hyman and his apexers were having a previously scheduled “jollification supper” at Delmonico’s Restaurant. Champagne and a cold ham with “Apex Forever” carved in its hide were served, but the celebrating sideliners outside drowned the toasts and the apexers adjourned their affair, the Sun wrote.
As the Denver trial proceeded, The Denver Times on Oct. 30, 1886, opined that, “Every Coloradan was interested in having the Apex fiends squelched.”
Aspenites discussed the issue in the stores, barrooms, hotels, and barbershops to the near exclusion of everything else, said the Sun. On Dec. 4, 1886, the paper printed a full page of opinions, showing that Aspenites were as colorful then as they are today:
Sam Garret: “Side-line is the peoples’ best friend; it protects the miner, the pioneer, and the orphans. The Apexers should go to Jerusalem and hunt for the tomb of Christ.”
J.P. Macdonald, contractor: “If the sideline wins I have the contract to build thirteen more houses. If apex wins I will leave my two-hundred-foot shaft on the mountain.”
Judge Watson: “The success of Apex means the ruin of this camp, although the Apex people are my best friends.”
At the height of the Denver trial, on Dec. 12, 1886, The Aspen Times headlined, “The Bastard Apex and Hyman’s Vulture Like Position Upon It.”
After numerous problems with jury tampering by sideline sympathizers, Judge Moses Hallett of the Federal District Court brought in the U.S. Secret Service to watch the jurors. On Dec. 23, 1886, after a nearly yearlong trial riddled with complicated expert testimony, a 9-2 jury upheld the apex law and Hyman’s right to the vein.
After the nationally watched battle, Hyman and his backers had spent $600,000 ($15 million today) in litigation expenses. The lawyers, of course, did well, which may explain why Wheeler was convinced to appeal the verdict, and a second trial was put on the docket for May 1888 with the U.S. Court of Appeals.
While the court fight was unfolding, the Denver and Rio Grande Railroad and the Colorado Midland Railway had been racing to get to Aspen. With ore for the taking, John J. Hagerman, the controlling interest in the Midland, looked for a compromise between Hyman and Wheeler: If mining resumed there would be much more ore to transport and plenty of profit for all.
Rather than spend millions more on litigation, they agreed to a deal. Some of Wheeler’s partners, particularly Mrs. Cowenhoven, who had acquired the family share of the Aspen in exchange for a $175 grocery-store chit, stubbornly resisted. With further pressure by Colorado Senator Teller, a personal friend of Mr. Cowenhoven, the others came on board. The result, in early 1888, was the Compromise Mining Company, wherein both sides put their disputed holdings.
A somewhat magnanimous Hyman split his apex rights 50-50 with Wheeler’s group, who divided their half into thirds. The bundled Compromise Mining Company, under the umbrella of Hyman’s Durant Mining Company, produced over $11 million ($275 million today) in ore, which they all shared.
That landmark agreement propelled Aspen’s first wave of explosive development and growth. The apex issue, which sideliners said would bring ruination to Aspen mining, became moot and the railroads arrived to haul away Aspen’s treasure.
While Hyman made his fortune, Wheeler merely added to his, until the silver crash of 1893. The Cowenhoven-Brown faction made their wealth from the deal, but bitterness over the agreement never settled well with them. Hyman, however, prospered because he owned the Smuggler Mine too, which even with reduced silver prices profited through the turn of the century.
Aspen mining continued from there in fits and starts into the 1940s, never regaining the traction it lost in 1893. With the opening of Aspen Mountain as a ski area in 1946, numerous mining claims all over the hill became part of the then Aspen Skiing Corporation’s private property, while other claims belonging to the U.S. Forest Service became part of a long-term lease for the ski area.
That was the situation in 1985 when Stefan Albouy and his partners found their loophole and started the Aspen Mountain Mining Corporation.
Guarding our heritage
At first the ski company balked when Albouy’s group restaked the Emma-Compromise claim. Trucks, materials, and equipment began arriving on Little Nell. After the new mining crew initially invested to get the operation going, they got the 1986 approval to build the workshop and bunkhouse that now stand at the top of Little Nell.
The ski company soon saw the benefit of having the historic site restored, and they proposed offering winter tours at the mine. At the time, the old Little Nell lift was being taken out and the ski company gave the miners the timbers that supported the upper terminal. They also offered an electrical connection to a pole that stood at today’s Kleenex Corner.
For a few years in the late 1980s and early 1990s, skiers could buy mine tours in the ticket office. Summer tours continued through 2012. This helped fund the working mine. Some may remember the sign and phone box at the top of Little Nell with a direct line to the mine, where skiers could call for a tour.
After a couple of years, the mining crew realized that having two tour guides there every day didn’t work economically and the winter tours shut down. At the time, silver was around $15 per ounce, but there was no economic way to ship ore to the nearest smelter in Utah. Hope for that remains slim, as the railroad right of way into Aspen has been turned into the Rio Grande Trail.
The operation has grappled to find a way to continue the dream of restoring the mine, resume tours, and maintain the last remaining historic portal into the heart of Aspen Mountain. Selling out is not an option because the group feels that the site should be maintained as an example of original Aspen.
The allure of the Compromise tunnel’s access to such history when one stands at the entrance is the hidden value. The opening exudes a cool, earthy breeze that feels like the breath of the mountain. If that tunnel had been bulldozed over like all the rest, hearsay would have been all that was left. This is what makes the goal of bringing back mine tours into Aspen Mountain’s interior a necessity.
Old maps in the workshop building show the astonishing underground geography of Aspen Mountain. Some 400 to 500 feet in, under the bottom of Silver Queen ski run, is the “Hooper Stope,” a chiseled-out room the size of the Wheeler Opera House, where Hooper carved out ore during his consequential lease. From the middle of the Hooper one can look up and see the filled-in shaft and hanging cables of the one-time contentious Aspen mine.
Going west underground below the top of the 1A ski lift, the Hooper leads to a new lookout platform near the upper level of the “Crib Stope,” another large room, described as an hour-glass-shaped shaft 1,000 to 1,200 feet deep and some 200 feet across. Roughly 90 feet farther west under Roch Run near Ruthie’s Restaurant is the “Warnick Stope,” which leads to where a spectacular, 50-foot spring-fed waterfall pours out of a shaft.
One account in the Aspen Democrat Times on July 7, 1922, highlights a visit to the waterfall by Parker Whitney, editor of The Outing Magazine, whose world-travel stories riveted readers then. The Democrat wrote that he “stood at the falls for an hour in silent wonder and astonishment, gazing at the works of God a mile below the surface of the earth, saying ‘this sight alone was worth travelling thousands of miles to witness.’”
The waterfall still flows unseen underneath Roch Run, ultimately draining out of the lower Durant tunnel just east of the Aspen Alps road. That water flows into Glory Hole Park.
But the mother of all mysteries is the “Castle Garden Stope.” Described as “massive” by Preusch, this stope lies like an unopened tomb beneath upper Little Nell. Early on, the Compromise crew tried to access the Castle Garden from the lower part of the Hooper but were unable because of an existing cave-in. Who knows what workings, equipment, and artifacts remain unfound in there.
Bear in mind that only a fraction of the ore was taken out of Aspen Mountain when the repeal of the Silver Purchase Act in 1893 pulled the rug out from under Aspen silver mining.
“We cannot allow the last vestiges of Aspen Mining history to be erased,” Preusch said. The idea is to come up with a plan that would support the operation as a historical site and bring back summer tours.
If the claim were ever sold, it could only be owned as a working mine. Still, wealthy buyers have fancied offers to buy the site, run a boutique mine, make a clubhouse out of it, and somehow get the claim patented (read: develop) in the face of the 1994 moratorium. But the Aspen Mountain Mining Company is adamant that this will never happen.
Right now, a core group of the shareholders is quietly working underground on weekends to clear debris and replace aging timbers with modern supports. To take the business to the next level, they have to bring certain sections up to code to satisfy the Colorado Division of Mining Reclamation. While currently closed for repairs, they aim to reopen for summer tours again, quite possibly in 2017.
Perhaps in the spirit of connecting the past to the present there is room for a brand-new compromise. What if the Aspen Mountain Mining Company, the Colorado Division of Reclamation and Mining Safety, the Forest Service, and the Aspen Skiing Co. found a way to preserve and enhance this singular landmark?
Talks, plans and options are still on the table amongst the shareholders, some of whom have differing opinions. But one thing is for sure, they all share the desire to hold on to their labor of love at the top of Little Nell and somehow make it into a self-sustaining example of yesteryear Aspen.
Editor’s note: Tim Cooney is a local freelance writer, veteran Aspen Mountain ski patroller, and cockeyed existentialist who appreciates history. Aspen Journalism collaborated on this story with the Aspen Daily News.