dissenting.
I am unable to agree with my associates in their reasoning or conclusions in the disposal of this case. The judgment of affirmance, and the opinion upon which it is founded, will, I am convinced, leave titles to mineral lands and rights of property open to attack and overthrow upon surmises and conjectures. Such titles and property rights acquired under the mineral laws should not be left subject to uncertainties, because they rest upon the word of the government, the grantor in all mineral patents.
It appears that defendants in error, who are the owners and in possession of the Gray Copper lode mining claim, sued plaintiff in error to enjoin removal of ores from a vein which is within the extended area of plaintiff in error’s Fitchburg lode mining claim, for an accounting of ores removed, for judgment quieting title to the mineral land in controversy in them, for damages and costs'. Plaintiff in error in answer to the action, besides1 denying the right of defendants imérror to’possession of the premises, filed a counterclaim setting up, inter alia, that it is the owner and in possession of the Fitchburg claim, the: senior location and patent; that it is the owner of and entitled to all veins apexing within the extended surface limits of the Fitchburg ólaim, including the vein or lode from which the *289ore in question was taken by defendants in error. Plaintiff in error prayed that defendant in error’s claim be adjudged invalid, because of tbe foregoing alleged facts, for injunctive relief and for an accounting. After the trial plaintiff in error’s counterclaim was rejected by the court and judgment was rendered for defendants in error, based upon an elaborate finding of facts.
I am not unmindful of the grave responsibility that attaches to the final decision of a case of the magnitude and importance of this cause, now here for determination. I have come to the conclusion that defendants in error had no' right whatever to invade the vertically extended limits of plaintiff in error’s Fitchburg claim. My examination of the record discloses to my complete satisfaction, and the conclusion is irresistible, as I conceive, that defendants in error unlawfully appropriated plaintiff in error’s property. That unlawful appropriation consisted, as I read the record, of the extraction by defendants in error of ore to the value of thirty thousand dollars from plaintiff in error’s Fitchburg claim. This was done from the workings of defendants in error within the boundaries of their Gray Copper claim 277 feet below the surface. There was no opening to the surface from plaintiff in error’s claim where defendants in error extracted the ore; therefore, defendants in error were trespassers. A party has no right to tunnel through another’s patented ground to cut a vein which apexes within the boundaries of his own claim. St. Louis M. & M. Co. v. Montana M. Co., 113 Fed. 900, affirmed 194 U. S. 235; 2 Lindley on Mines (3d ed.), p. 1470, §615. “The presumption, where a .miner is found beyond his sidelines, is. against him. He is prima facie a trespasser till he has shown that he gets there by following the lode on its dip from its apex, within his lines.” Morrison’s Mining Rights (16th ed.) p. 218. See Iron Silver M. Co. v. Campbell, 17 Colo. 267, 29 Pac. 513. He must proceed downward from the surface within his own lines and not through the “back door.” The admonition laid down by the United States Supreme Court in Jim *290Butter Tonopah M. Co. v. West End Con. M. Co., 247 U. S. 450, 460, is enlightening, in this: “It is well to remember * * * that to take, from the discoverer a portion of that which he has discovered and give it to one who may have been led to make an adjoining location by a knowledge of the discovery is unreasonable.” That, in my opinion, is precisely what has resulted here. Defendants in error, the apex and extralateral claimants, had the burden of proving beyond reasonable controversy, all the geological facts which are required to establish their full compliance with sections 2320, 2332, and 2336, U. S. Revised Statutes. The burden of proof never shifted, it was plaintiffs’ throughout the entire proceeding. Cheesman v. Hart, 42 Fed. 98; 3 Lindley on Mines (3d ed.), §866, p. 2163, et seq. They were even precluded by law from stipulating as to these facts. The California Court of Appeals in Garibaldi v. Grillo, 17 Cal. App. 540, 542, 120 Pac. 425, 426, discoursed upon the law at length holding: “The parties were competent to stipulate as to their contending and conflicting rights, but they could not by stipulation relieve themselves from proving at the trial that they had made a discovery of gold * * *, as contemplated by the laws of the United States (Chrisman v. Miller, 197 U. S. 313 [25 Sup. Ct. 468, 49 L. Ed. 770]).” The court then quoted with approval the rule emphasized in Chrisman v. Miller, supra, relating- to a discovery and vein definition, in this: “ ‘ There must be such a discovery of mineral as gives reasonable evidence of the fact, either that there is a vein or lode carrying the precious mineral, or if it be claimed as placer ground, that it is valuable for such mining-. ’ The court quotes the definition given by the United States land department as follows: ‘Where minerals have been found, and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable'mine, * * See, also, 2 Lindley on Mines (3d ed.), p. 763. Tested by these principles, I think the *291learned trial court was not warranted in holding that defendants in error’s evidence met the statutory requirements. '
The first point that claims my attention is that the trial court erred, as I think, in finding that the evidence established the apex of the disputed vein to be within the area of the Gray Copper claim. In finding that defendants in error had proved beyond reasonable controversy, as they were required to do to meet the mandatory terms of the statute, that the area of the mineral land in dispute apexed within the surface limits of defendants in error’s Gray Copper claim and conferred extralateral rights on them, did the trial court rightly resolve? I think not. The court opinion here sustaining the trial court’s finding and decree on this particular question, as well as other questions mentioned in the opinion, to which I shall refer, states that the testimony of the witnesses was directly conflicting. I do not so read the evidence. I understand the law to be that no conflict of evidence could be raised by testimony on this question until the witnesses for the respective parties gave opposing testimony upon the question of the geological facts necessary to meet the requirements of the statute. I am satisfied from a critical examination' of the record on this question that defendant in error’s witnesses did not even mention the geological facts, that is, a true discovery and vein apex, necessary to meet the positive requirements of section 2320, U. S. Revised Statutes (U. S. C. A., Title 30, §23) * * no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.” The word discovery means that a vein exists. Mason v. Washington-Butte M. Co., 214 Fed. 32, 35, 130 C. C. A. 426.
The statement in the court opinion here “that the disputed vein united below [no doubt meaning the vein in dispute] with a branch of the Gray Copper discovery vein to which plaintiffs were entitled,” is not, as I conceive, supported by the evidence. In fact the contrary is made *292conclusively to appear from the record as I understand it. Defendants in error had no right to “the vein below” unless they could establish, beyond reasonable controversy, that the vein in dispute apexed within the surface boundaries of their Gray Copper claim and that it .did not connect with the Fitchburg" vein.
In determining* what constitutes a discovery that will satisfy the law within the definition of the terms vein or lode, the tendency of the courts is toward liberality of construction until, the miner asserts rights in property which prima facie belongs to someone else. 2 Lindley on Mines (3d ed.), p. 765, §336. What constitutes a discovery that will validate a location may be wholly inadequate to justify .the assertion of extralateral rights under the statutes. Grand Central M. Co. v. Mammoth M. Co., 29 Utah 490, 576, 83 Pac. 648. I am convinced from the record that there is no vein whatsoever extending up from the flat below the 44 foot level, in the Fitchburg claim to the surface. The only connection referred to is merely a fracture in the rock of the mountain. Moreover, I believe that even this fracture is not continuous in its extent from the flat upwards to the surface within the boundaries of the Gray Copper claim. The proof seems conclusive that it is a broken fracture, a joint plane, as expert testimony shows, and as is illustrated by defendant’s plates 8 and 9, which plates, as I read the evidence, are the product of and corroborated by the testimony of the learned geologist R. B. George. The physical condition shown by these plates and plaintiff in error’s testimony as to assays made by it is not in material conflict with the testimony of defendants in error’s witnesses. This is clear ’to me because the testimony of defendants in error’s witnesses does not prove or tend to prove the geological facts required by the mining-laws to establish a-valid location. ■ These witnesses did not. assay the alleged vein. The value of the testimony of experts as to what constitutes a vein or lode depends to a great extent upon the strength or weakness of the reasons, given in-support of the conclusions reached... .Booh *293v. Justice M. Co., 58 Fed. 106, 109. Defendant in error’s witnesses gave no reasons; they presented no assays. Their mere statements without basic reasons for the conclusions reached are inadequate. In further reviewing the evidence upon this question, I find that the record discloses that defendants in error did not present any evidence at the first hearing to prove the geological facts required to establish a discovery and a vein apex within the surface limits of their Gray Copper claim, which in its downward course they alleged functioned with the disputed area. At the second hearing defendant in error’s witnesses Byron and Worcester testified upon this question. The witness Byron stated that it was not required to have values in the vein in excess of the surrounding country rock and that the vein or fracture may be entirely barren. This witness also stated that no assays were made by him of this so-called vein and that no quartz appeared in the vein or fracture. The witness Worcester testified that a vein could exist without any mineralization and that no assays were made by him of the alleged vein. This was not sufficient proof to meet the requirements of the law, as pronounced by controlling decisions, nor to raise any conflict in the evidence on this important question, in view of the testimony of plaintiff in error’s witnesses and the assays made by them. I think it is directly contrary to the imperative requirements of the law. It was incumbent upon defendants in error to prove a vein apex more substantially than would have been required to sustain a discovery. It is a well established rule of mining law, as I understand it, that stronger proof is required to support a claim of apex conferring extralateral rights, than would be required to prove a valid lode location. This rule is emphasized in Grand Central M. Co. v. Mammoth M. Co., supra, wherein it is said: “* * * What may constitute a sufficient discovery to warrant a location of a claim may be wholly inadequate to justify the locator in claiming or exercising any rights reserved by the statutes. What constitutes a discovery that will validate a *294location is a very different thing from what constitutes an apex, to which attaches the statutory right to invade the possession of and appropriate the property which is presumed to belong to an adjoining owner.” The writ of error from the- United States Supreme Court was dismissed. 213 U. S. 72. Plaintiff in error was right in its contention that the seams or fractures above the flat did not have the statutory characteristics of a real vein required to confer extralateral rights on defendants in error.
I am convinced that the discovery and vein apex alleged to exist within the surface limits of defendants in error’s mineral land is shown by the evidence to be counterfeit, sham. “While the courts may be unable to define with sufficient accuracy for all purposes what is necessary to constitute a discovery, they may have no difficulty in discriminating between the genuine and the- counterfeit, the real and the sham.” 2 Lindley on Mines (3d ed.), p. 772, §336.
The court opinion here, in holding that “the testimony of the witnesses for the parties was directly conflicting” upon this question, is not justified, as I read the whole evidence, for the testimony of defendants in error’s witnesses did not prove or tend to prove the geological facts necessary to establish a discovery, within the requirements of the law, as I believe I have shown. I am not in accord with this holding of the court. It is wrong as a matter of law, as I understand. The rule is well established that where an apex claimant fails to prove, beyond reasonable controversy, a discovery having a body of mineral bearing roclc therein sufficient to meet the requirements of the statute, then the question whether a vein exists that would confer extralateral rights, becomes a question of law and not of fact. My analysis of this question involved consideration of what constitutes- a vein or lode and under what circumstances of continuity and of interruption a vein may be followed in the surrounding rock so that its identity is preserved. If it is not continu*295ous (aside from slight interruptions), or if it is not found in a crevice or opening which is itself continuous, it can not be called by that name. A mere barren fracture in the rock, or just an opening is not sufficient. Bryan v. McCaig, 10 Colo. 309, 313, 15 Pac. 413. It must be filled with vein matter, which must carry values in excess of the surrounding country rock. Golden v. Murphy, 31 Nev. 395, 103 Pac. 394; Grand Central M. Co. v. Mammoth M. Co., supra, and cases cited. It is well settled that slight interruptions of the mineral bearing rock alone would not be sufficient to destroy the identity of the vein; nor would a short partial closure of the fissure have that effect, if a little beyond it recurred again with mineral-bearing rock within it. It is clear, as I understand, that whether a vein exists is a question of fact. It is obvious, however, that this fact can only be determined by proof of other geological facts; that is, first, a discovery of mineral in place; and, second, the existence of mineral in sufficient quantities to justify a prudent person in the expenditure of his time and money. If the proof fails to establish either of these geological facts, then a vein does not exist, as a matter of law. It follows as corollary that the contra obtains where the proof establishes these geological facts. This rule, as I view it, is elementary and is unanimously supported by authoritative decisions of state and federal courts. Chrisman v. Miller, supra; Beals v. Cone, 27 Colo. 473, 486, 62 Pac. 948; Bryan v. McCaig, supra; Harper v. Hill, 159 Cal. 250, 113 Pac. 162, 166; 2 Lindley on Mines (3d ed.), §336. Defendants in error’s proof in this case failed to establish any of the geological facts required to show that a vein existed at this point. The admissions of defendants in error’s witnesses that they had not made a discovery of mineral and had no knowledge of the existence of any of the precious minerals named in the statute in the questioned vein structure did not create a conflict in the evidence, because the witnesses for plaintiff in error proved by actual assays that there was no mineral contained in the questioned vein in excess of the surround*296ing country rock. I am convinced that the trial court based its finding as to this question upon a false definition. It is obvious that in resolving in favor of defendants in error, the court virtually defined a mere barren fracture in the rock of the mountain as a vein. This was gravely wrong, as I conceive, and the error is reflected in the judgment.
The court opinion makes much of the contention that the findings of fact of a trial court are binding on a court of review. The opinion cites former holdings of this court to the effect “that the reasons given for a judgment are not judgments.” With this rule, generally, there can be no serious controversy. However, there are notable exceptions, and this case presents a typical instance. In Thuringer, Admr. v. Trafton, 58 Colo. 250, 144 Pac. 866, we said: ‘ ‘ The finding of a trial court is not necessarily binding on a court of review when it clearly appears from the whole record that such finding is wrong.” The court broadened the rule in Neelley v. Farr, 61 Colo. 485, 516, 158 Pac. 458, where we said: “But to this rule there are well- recognized exceptions, as where the finding is the result of * * *, mistake or misapprehension, or misconception of the legal effect'of the evidence; * ■ * *.” Moreover, in Mammoth M. Co. v. Grand Cent. M. Co., 213 U. S. 72, Mr. Justice Holmes, speaking for the court, said: “Of course, if these findings rest on a false definition they may have to be reconsidered, and cannot be assumed to be correct.” I am convinced that since it is clear that the trial court in this case based its findings upon numerous false definitions, its findings cannot be assumed to be correct, and should be reconsidered.
The second point that claims my attention is that the trial court erred in finding that there was no union of the footwall branches of the Fitchburg vein with the vein in controversy. The testimony of the witnesses for the respective parties in relation to this particular phase of the case has had my critical attention.
It is obvious that one of the ultimate questions to be de*297termined from the evidence in this case, involving elementary principles of mining law is: Do these branch veins of the Fitchburg exist and unite with the disputed vein? If so, then this disputed vein, as a matter of law, belongs to plaintiff in error irrespective of any other veins or fractures that might apex in defendants in error’s ground. Did the trial court err in resolving this question in the negative ? I am convinced that it did. That finding, as I believe, is the result of mistake and misconception of the legal effect of the evidence. In that view, as the authorities hold (already-cited), it is our office to examine anew.
It seems conclusive, as I read the whole evidence, that the Fitchburg vein split in its downward course and formed branches which unite with the vein here in controversy. It is asserted by defendants in error, and the trial court found, a finding approved here, that this branch No. 1, and similar branches of the Fitchburg vein, are merely a series of “stringers” and do not unite with the vein in dispute. However, defendants in error’s expert witness Worcester, the only witness to- give testimony in reference to this vein, admitted, on cross examination that a “stringer” is a vein. He said, “If you got down to minute sizes, of course, they are all veins because, there is no maximum or minimum for size of a vein that I know of.”
I do not agree with the statement in the opinion that the extent, character, size, and mineralization of the carbonate seams (really the branch veins) are matters of definite dispute between the witnesses of the parties. The testimony of defendants in error’s witnesses does not include even a reference to the geological fact required to establish that the branch vein (carbonate seams, as defendants in error’s witnesses characterizes them), did not contain mineral in appreciable quantities or that the veins could not be traced in the surrounding rock. The opinion of the court says that the formation involved in and about these branch veins was open to actual visual *298inspection, and that still the witnesses did not agree upon the physical characteristics of the structure. It is obvious from a critical study of the geological facts in evidence, involving such varied features, that it is but natural that the witnesses should differ in their conclusions.
It was incumbent upon defendants in error to establish as a geological fact that these branch veins were not mineralized and that they were not continuous from the Fitch-burg vein to the disputed vein. In fact, defendants in error’s witness admitted that the No. 1 branch vein was mineralized and that there was only a slight interruption in continuity; further, that the offset which caused the interruption was mineralized. As I see, defendants in error’s evidence alone entitled plaintiff in error to judgment upon this question. But to go further in reviewing the evidence, plaintiff in error proved conclusively that an ore body, varying in width from one to six inches, having an average value of $7.43 a ton, is continuous from the Fitchburg vein down to its union with the vein in dispute, from which defendants in error extracted the ore. It is indisputable that this evidence was not controverted by defendants in error. Therefore, there is no “factual conflict” upon this question. The trial court’s finding that this ore body was a “stringer” is a false definition and “should be reconsidered, and cannot be assumed to be correct. ” It is in effect a holding that a continuous body of ore does not constitute a vein. This was grave error, and as I have said about other false definitions, is reviewable by us.
It seems clear from the court opinion, that the court approves opposite positions in applying the elementary principles of mining law to the facts relative to vein continuity. First, it approves the trial court’s finding based on defendants in error’s evidence, that a purported slight interruption in the Fitchburg footwall branch No. 1 vein of only five feet, caused by the intrusion of a pegmatite dike, although mineralized, cut off the vein and destroyed its continuity. Second, it approved the finding that a *299total interruption or cutting off of the disputed vein by the pegmatite flat near the 44 foot level in the Fitchburg claim, did not interrupt the continuity of the vein to the surface of the Gray Copper claim, a distance of about fifty feet. The court opinion here says in regard to this last question: “To confer extralateral rights a vein need be continuous only in the sense that it can be traced by the miner through the surrounding rock.” I conceive that the court assumes such was the case here, and yet the evidence discloses without conflict as to the required geological facts that no vein or fractures of any kind could be followed on its strike in the 44 foot level from the raise, through the surrounding rock.
The third point with which I am concerned is that the trial court erred in finding there was an intersection of the vein in controversy with the Fitchburg vein on the 110 foot level, and that the veins again diverged. The court opinion here says that there was evidence to the effect that the two veins had distinct walls, meaning no doubt, distinct walls after the two veins junctioned (united). I believe, admitting this to be true, that a junction existed, because there was no evidence to show that the veins were separated by country rock. Defendants in error’s witness Byron testified, when asked to define a junction, that it was when one vein joins with another vein and continues on as one vein between one set of walls. Defendants in error’s witness Worcester, would not state definitely as to whether there was a junction or intersection of the vein in dispute with the Fitchburg vein, on the 110 foot level. He said he didn’t think it was possible for anyone to make an absolute statement on that point. He said further, relative to a junction of the veins after they came together within one set of walls, that if a practical miner saw the vein at that point and knew nothing of the history of either vein, he would go ahead and mine it as one vein.
The trial court’s finding that the line of intersection of the vein here in controversy with the Fitchburg vein con*300tinues in the 110 foot level a distance of 66 feet to the end line, established as a geological fact, that the two veins do not cross each other on their strike, bnt junction (unite) and continue from that point as one vein. In other words, the Fitchburg vein split on its strike, and the result of that split formed the vein in dispute. The evidence discloses conclusively that solid ground exists above the drift on the vein, between the 110) foot level and the surface, and that there are no workings whatever to show a separation of these veins above that level. The contrary of this condition appears in regard to the disclosure in the winze below the 110 foot level, as there is conclusive proof that there is no separation of the vein below this level. I think the finding of the trial court that the vein in dispute separated from the Fitchburg vein at some unknown point above the 110 foot level and continued upward to an alleged apex within the surface boundary of plaintiff’s Gray Copper claim, is based solely upon “speculative conjecture.” The court simply “took a look” into the solid ground above the 110 foot level and found that such separation took place. This we have said is not to be permitted. Collins v. Bailey, 22 Colo. App. 149, 164, 125 Pac. 543. The finding of the trial court on this question clearly shows that the court used the word intersection synonymously with the word junction, because, even if the disputed vein had dipped into the Fitchburg vein, above the 110 foot level, without cutting through that vein immediately below that level, then as a matter of law a junction (union) occurred. That is exactly what the evidence discloses. The court having found that the two veins united together between one set of walls and then continued tog-ether, both on the 110 foot level and in the winze, it should have, found and decreed that a junction existed.
It is urged by defendants in error, and referred to in the court opinion, that the trial court “inspected” the territory involved in this controversy, which afforded it an opportunity to better understand the evidence, especially as relating- to the physical aspects of the formation *301and veins in conflict. I venture to assert that nothing could be presumed in favor of defendants in error, who were invading’ plaintiff in error’s property. In Zambakian v. Leson, 79 Colo. 350, 246 Pac. 268, we emphasized the rule and said, at page 354: ‘ ‘ The examination of inspection made by the court cannot have the effect of supplying additional evidence.”
In conclusion, I emphasize three points in which mistakes or misconceptions of the legal effect of the evidence are made to appear It will make for clarity to keep constantly in view these three outstanding errors (false definitions) of the trial court as disclosed by the record, and approved by this court. These three points are, that the court in finding, first, that the vein in dispute apexed within the surface boundaries of defendants in error’s Gray Copper claim, had virtually to define a barren fracture in the rock of the mountain as a vein; second, in finding that the f ootwall branches of the Fitchburg vein were mere “stringers” and not veins, and do not unite with the vein in dispute, the court had to hold in effect that a continuous body of ore does not constitute a vein; and, third, in finding that there was an intersection and not a union of the disputed vein with the Fitchburg vein on the 110 foot level, the court misconceived or misapplied the legal effect of the word “intersection.” It is clear that the pronouncement of the trial court could not have, been for defendants in error had any one of these points been resolved other than as I have set forth. This conclusion is irresistible, because if the first point had been resolved in the neg*ative then the vein in dispute would belong to the owner of the senior Fitchburg’ claim as a matter of law, as an independent vein; if the second point had been resolved in the affirmative then the disputed vein would belong to the senior Fitchburg claim as a part of that vein, as a matter of law, irrespective of any other vein or veins, or where such veins apexed; and if the third point had been properly defined as a junction, then the vein in *302controversy would belong to defendant as a matter of law, because defendant owns tbe senior Fitchburg claim.
I think the judgment should be reversed, with instructions to dismiss defendants in error’s complaint, and to require them to account for ore taken, as prayed in plaintiff in error’s cross complaint.