dissenting:
I agree with the majority that this case is “primarily one of contract interpretation.” The parties entered into two contracts. The trial court found, and the majority of this Court agrees, that the “1943 contract was unambiguous as a matter of fact and law.” Ante at 1020. It is the trial court’s conclusion that the 1944 contract was ambiguous, affirmed by the majority, with which I disagree.
In the 1943 contract, the parties comprised their possible conflicting claims to the rich body of ore which Sunshine had found in the Syndicate-Chester vein within the interlimital boundaries of the Majestic and Rambo claims. It was thought that Silver Syndicate might have a legitimate claim of extralateral rights in those ore bodies, and so the parties agreed to divide the profits from the mining of that ore body within that carefully defined area, being not only 1,100 feet of the vein itself, to which Silver Syndicate’s extralateral rights would have applied, but also to a zone 200 feet to the north and the south of that vein. That 400-foot zone was to run from the dividing plane on the east, to the westerly end of the Majestic and Rambo claims, a distance of 1,100 feet. However, Sunshine Mine owned additional mining claims west of the Majestic and Rambo claims, and the 1943 agreement did not apply to them.
After operating the 1943 agreement, Silver Syndicate expressed dissatisfaction with the arrangements, which resulted in the parties entering into the 1944 agreement. However, unlike the 1943 agreement, the 1944 agreement did not give Silver Syndicate rights in a zone 200 feet on either side of the Syndicate-Chester vein; rather, in that 1944 agreement Sunshine merely agreed “not to contest Syndicate’s claim to extralateral rights on or in the Syndicate-Chester Vein . . . .”1
*239The majority upholds the trial court’s conclusion that the 1944 agreement was ambiguous. There was nothing ambiguous about the language wherein Sunshine agreed not to “contest Syndicate’s claim to extralateral rights on or in the Syndicate-Chester Vein . . . .” The mere fact that Sunshine had, in the 1943 agreement, agreed to Syndicate’s claim to extralateral rights in the Majestic and Rambo claims, plus an additional 200 feet on either side thereof, does not mean that the failure of the 1944 agreement to create the same 200-foot zone on either side of the Syndicate-Chester Vein west of the Majestic and Rambo claims creates an ambiguity. The majority admits, ante at 235, “the 1944 contract does not, however, specifically refer to the 400 foot zone . . . .” In fact, in the same paragraph 2 of the 1944 agreement, Syndicate agreed to quitclaim to Sunshine any “ ‘blind’ veins, lodes, ledges or ore bodies which have their tops or apices beneath the surface and within Sunshine’s verticle boundaries,” and Syndicate recognized that “such apices might exist close to the Syndicate-Chester vein or remote from it and upon the south or north side of it.” This language cannot be reconciled with a claim by Syndicate of a 200-foot zone on either side of the vein.
There is no ambiguity m the 1944 agreement. There is nothing in it to suggest that the 400-foot zone created in the 1943 agreement was extended to the west of the Majestic and Rambo claims. The trial court erred, in my view, in holding the 1944 agreement to be ambiguous and admitting extrinsic evidence of what the parties intended. I would reverse and remand the matter to the district court with directions that the trial court enter findings of fact and conclusions of law and judgment that the 1944 contract did not create a 400-foot zone along the Syndicate-Chester vein, west of the Majestic and Rambo claims, but that it merely acknowledged “Syndicate’s claim to extralateral rights on or in the Syndicate-Chester Vein.” However, that would not preclude Syndicate from claiming the ores in the veins in question, the “625”, “H”, and “J” veins. Silver Syndicate’s second complaint sets forth an additional claim to those ores based upon the fact that those veins were, geologically, expressions of the Syndicate-Chester vein and thus the ore was theirs by virtue of their extralateral rights. The trial court made no findings of fact or conclusions of law on that theory because it found the contractual theory to be dispositive of the case. Syndicate should still be entitled to a ruling upon the geological claims that it had made.
. The pertinent language of the two agreements is as follows:
The 1943 agreement:
“8. Chester vein as above identified shall be considered to mean the extension of this vein on its strike and dip and all parallel and branching or intersecting veins or other veins and ore bodies for 200 feet to the north and 200 feet to the south of the center of said Chester vein. Displacement by faulting of the Chester vein zone or local pinching or absence of ore in the Chester vein zone shall not be deemed a termination of its extension on its strike or dip.”
The 1944 agreement:
“2. EXTRALATERAL RIGHTS: BLIND VEINS: In consideration of the above conveyance, Sunshine agrees that it will not contest Syndicate’s claim to extralateral rights on or in the Syndicate-Chester vein, within Sunshine’s vertical boundaries, west of the dividing plane described in said Agreement of August 4th, 1943. Sunshine and Syndicate, for their mutual benefit, agree to the cancellation of the leasing arrangement under *239which Sunshine heretofore has conducted mining operations on a portion of the Syndicate-Chester vein within Sunshine’s Rambo claim, effective as of August 1st, 1944. For the purpose of this agreement the Syndicate-Chester vein is identified as that vein or fault encountered by crosscuts in the Sunshine Mine at points established by Sunshine survey coordinate intersections, as follows:
Place Latitude Departure
1900 Level — Crane Claim S-78640 E-75950
1900 Level — Sherman Claim S-78775 E-76525
3100 Level — Rambo Fraction Claim S-79440 E-77008
3100 Level — Rambo Claim. S-79635 E-77575
“Syndicate agrees that it will not claim extra-lateral rights to any other vein, lode, ledge or ore body within Sunshine’s vertical boundaries unless it can be shown with reasonable certainty that such vein, lode, ledge or ore body has its top or apex within the vertical boundaries of Syndicate’s claims.
“It is recognized that future development and exploration work may disclose the existence of ‘blind’ veins, lodes, ledges or ore bodies which have their tops or apices beneath the surface and within Sunshine’s vertical boundaries, and that such apices might exist close to the Syndicate-Chester vein or remote from it and upon the south or north side of it. Where it can be shown with reasonable certainty that such a condition exists, Syndicate upon request agrees to quit claim to Sunshine such blind veins, lodes, ledges or ore bodies. Sunshine and Syndicate agree to cooperate in promptly determining the facts in such cases, and if agreement cannot be reached by this means, both parties agree to promptly submit such apex questions to arbitration as hereinafter provided.”