Full opinion text
PETERS, P. J. Plaintiff and defendant Cooley Butler each operate gold mines in the Grass Valley mining district of Nevada County. Plaintiff instituted this action against Cooley Butler, Wallace Butler and Fred Kalenborn for injunctive relief and damages. The last two named persons were joined as defendants as employees of Cooley Butler. The action was dismissed as to Fred Kalenborn. The theory of the complaint was that defendants had drilled holes from their mine through which water was artificially and wrongfully introduced into that portion of the workings of plaintiff’s mine which is located below the workings of defendants. For this water trespass plaintiff sought damages and to enjoin any future trespasses. Plaintiff also sought to enjoin defendants from continuing to sink a designated winze from their mine into the mine of plaintiff. The trial court awarded plaintiff injunctive relief, in terms that will hereafter be set forth in detail, and damages of $2,531.34. From this judgment defendants Cooley Butler and Wallace Butler appeal. Inasmuch as the major problems involved on this appeal are dependent upon vein ownership, each party claiming title to that portion of the vein into which the drill holes empty, and since defendant Cooley Butler is the only defendant to claim ownership, references hereafter to “defendant” in the singular are to Cooley Butler. The other defendant and appellant, Wallace Butler, joins in Cooley Butler’s contentions insofar as they are relative to his liability. General Facts and Contentions of the Parties. The vein owned by plaintiff is known as the Pennsylvania vein, while that owned by defendant is designated as the Dromedary vein. Some 1200 feet vertically below the surface of the ground these two veins come together. The line of contact of the two veins is referred to as the rake of encounter. Below the rake of encounter are located certain workings of plaintiff into which the drain holes above mentioned empty. Defendant contends that these workings of plaintiff are located on a continuation of the Dromedary vein owned by him, and that plaintiff’s workings thereon are a trespass. The plaintiff contends, and the trial court found (Cl. Trans, p. 2, line 11), that where the veins come together there is a junction of the Dromedary and Pennsylvania veins; that thereafter there is but one vein; and that title to this vein is in plaintiff under the terms of an agreement made in 1915 between plaintiff’s predecessor in interest and defendant’s predecessors. If this theory is correct, inasmuch as the drill holes penetrate workings upon the vein below the rake of encounter, defendants were guilty of a trespass in drilling into these workings. In defendant’s analysis there is an intersection of the defendant’s Dromedary vein and plaintiff’s Pennsylvania vein above where the drill holes penetrate, with each vein continuing on beyond the intersection as a separate vein. Under the agreement of 1915, if there is an intersection of veins, each owner is entitled to follow his vein beyond the intersection; if there is a junction, the single vein below the junction is the property of plaintiff. It is defendant’s position that the drill holes penetrate workings which, although made by plaintiff, are in fact upon the downward extension of defendant’s Dromedary vein beyond its intersection with the plaintiff’s vein. The fourth member of the intersection is claimed to be the Wiggly vein, which, in defendant’s analysis, is the downward extension of the plaintiff’s vein. It is plaintiff's position, and the trial court found, that the Wiggly vein is a minor, insignificant down dipping branch which departs from the single vein formed by the union of the Pennsylvania and Dromedary veins. The vein into which the drill holes penetrate is referred to by defendant as the disputed vein, and sometimes will be so designated herein. Defendants’ briefs refer to the plaintiff’s vein above its meeting with defendant’s Dromedary vein as the Penn-yellow vein because of the fact that in a diagram included in the briefs the line depicting a cross-section of that vein is colored yellow. The question as to whether the Dromedary and Pennsylvania veins intersect, each continuing beyond the intersection as separate veins, or whether they join and become one vein, is the major factual question in the case. On that question depends the ownership of the vein where the drill holes penetrate. The court has found that there was a junction, with the result that the vein below the junction was adjudicated to be the property of the plaintiff under the contract of 1915. The defendant’s contention is that the evidence as a matter of law shows an intersection rather than a junction. To succeed in this contention defendants have the burden, of showing that the court’s finding of junction is without any substantial support whatsoever in the record. It is, of course, as defendant is well aware, not enough that the trial court on the evidence before it could have decided for defendant. Defendants make the further contention that even though there is a junction of the Pennsylvania and Dromedary veins which continue downward as a single vein, such vein has a subsurface apex at the rake of encounter, which apex is so located that the vein below the junction is the property of defendant under the agreement of 1915. The defendant’s mine upon the Dromedary vein is known as the Golden Center Mine. The court found that in 1936 the defendants drilled a hole from the 1100 level of their Golden Center Mine which penetrated workings of plaintiff on the disputed vein below. The defendants then laid pipes along the 1100 level, into which they conducted water from their mine, and by means of a pump artificially forced water into the dammed up area surrounding the top of the drill hole, and thence down the drill hole into plaintiff’s workings on the disputed vein. The plaintiff had acquired the Pennsylvania mine property in 1929. These Pennsylvania workings on the disputed vein had been allowed to fill with water by plaintiff’s predecessor before plaintiff acquired the property in 1929, with the result, the court found, that plaintiff did not make discovery that water was being introduced through defendant's drill hole until December, 1939, when it was informed of the fact by one of its employees who had formerly worked for defendant. The plaintiff immediately plugged up the hole. In February, 1940, plaintiff unwatered its own workings. The court found that, when the first hole was plugged, defendants commenced artificially to introduce water into plaintiff’s workings through a second hole, drilled in 1939, and when plaintiff plugged that hole, defendants sent the water down a third hole, which they had also drilled in 1939. The court further found that the defendants' agents and employees knew, or reasonably should have known, that the drill holes had penetrated lower levels of plaintiff’s mine,, and that the water from the Golden Center Mine that was thereafter wrongfully, wilfully and intentionally diverted by artificial means into plaintiff’s mine put plaintiff to the expense of pumping out such water, to its damage in the amount of $2,531.34, as computed by representatives of both parties. Defendants do not object to the award of damages, since they concede that, regardless of the ownership of the disputed vein, the water ultimately passed into workings which unquestionably are on plaintiff’s vein. (Op. Br., p. 311.) In addition to the award of damages, the judgment also contained an injunctive provision restraining defendants “from introducing or causing to flow through said drill holes, or any other drill holes similarly driven, or through any artificial conduits, any water from the Golden Center mine so that it will escape through artificial means into the Pennsylvania mine.” (Cl. Tr. p. 87.) By the complaint plaintiff also sought injunctive relief as to a winze which defendant had constructed on its Dromedary vein from its 1650 level to its 1800 level, and which, if continued, would break into the workings of plaintiff. (It has been stated heretofore that the workings particularly involved in this action are located about 1200 feet vertically below ground. The mine levels referred to in this opinion are reached by workings descending into the earth at an angle, rather than vertically, which accounts for the levels being indicated by larger figures than 1200.) This winze is in close proximity to the drill holes through which the water was introduced into plaintiff’s mine. Plaintiff alleged that the sounds of blasting were becoming increasingly audible in plaintiff’s mine and that if defendants caused the winze to break into plaintiff’s workings there was grave danger that serious injury would be caused plaintiff’s workmen; that the roof and supporting timbers in plaintiff’s workings would be injured, and that additional floods of water would be permitted to flow into plaintiff’s mine through said workings. The findings recite that the court had granted an injunction pendente lite restraining defendants from extending the winze “so as to break into and jeopardize” any of the workings of the Pennsylvania mine. (Cl. Tr., p. 78.) The winze is referred to in the briefs as the “enjoined winze. ’ ’ By the injunctive provisions of the decree here appealed from it is provided that whenever a close approach of the workings of the two mines is indicated by sounds of blasting or otherwise, maps of the workings in the vicinity shall be exchanged. If after the exchange of maps and further consultation any breaking into or injury to plaintiff’s workings seems reasonably imminent, defendants are enjoined from further pursuing their vein in the enjoined winze or at any other point where it may endanger life or property of plaintiff. The decree further provides that “if, in order to avoid breaking into and injuring plaintiff’s workings in violation of the court’s findings and judgment herein, defendant Cooley Butler shall find it necessary to leave intact any protective pillar of rock containing ore which he deems valuable, he shall notify plaintiff of this fact and request a joint appraisal of said ore by representatives'to be designated by him and representatives to be designated by plaintiff.” If the representatives fail to agree as to value, the question shall be referred to the court, which retains jurisdiction to enforce the decree. If plaintiff fails to pay the value so ascertained within ten days, or if plaintiff at any time notifies defendant that it does not object, defendant may proceed to mine the protective pillar. (Cl. Tr., pp. 88 and 89.) The decree recites that “equitable considerations and the fact that plaintiff’s workings in this vicinity have been constructed and were in existence long prior to the approach thereto of defendants’ workings” lead to the decree in this form. (Cl. Tr., p. 88.) Defendant argues that even though it is held, contrary to his contention, that there is a junction of veins and that, therefore, the plaintiff owns the disputed vein, nevertheless the above injunctive provisions are not called for by the exigencies of the situation. The decree forbids defendant to mine his own Dromedary vein up to its junction with plaintiff's vein by requiring him to leave a protective barrier, and this, in defendant’s view, constitutes an exercise of eminent domain in favor of a private corporation for its private purpose. Interpretation of the phrase “parts of veins” in the 1915 Agreement. Reference was made above to defendant’s contention that even though there is a junction of the Dromedary with the Pennsylvania vein, nevertheless, under the agreement of 1915, made by the predecessors in interest of the parties to the present suit, the defendant is the owner of the vein below such junction. The shaft of the plaintiff’s Pennsylvania mine is located to the south and east of the shaft of defendant’s Golden Center mine. The plaintiff’s shaft is located outside the boundaries of the townsite of the city of Grass Valley, defendant’s shaft within those boundaries. Development of the Pennsylvania mine in the area of the Pennsylvania shaft commenced more than seventy years before the present action. The Golden Center mine is of much later development. Both mines contain extensive workings. In the case of federal mining patents the locator acquires what is known as an extralateral right to follow a vein which apexes on his location beyond his own surface side lines beneath other lands. (Rev. Stats., § 2322.) The federal law further provides: "Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purpose of convenient working of the mine. And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.” (Rev. Stats., § 2336.) The extralateral right above described does not exist in townsite lots which are held under non-mineral townsite patents. As to such townsite lots, extralateral rights do not apply even though the original location of the vein is outside the townsite. As to townsite lots, title to the surface carries title to fixed mineral deposits beneath. The workings upon the disputed vein, into which the defendant’s drill holes penetrate, are within the Grass Valley townsite, being beneath lots 6 and 7, block 18, of the townsite. In 1915, when plaintiff's and defendant’s predecessors entered into the agreement upon which their rights depend in the present suit, plaintiff’s predecessor owned mineral rights in a number of lots in the Grass Valley townsite, including lots 6 and 7, block 18, and defendant’s predecessors owned such rights in other lots under grants from the surface owners. The divided ownership is described in plaintiff’s brief as a “checkerboard,” which made economical mining operations impractical. It was to try to settle the problems growing out of this “checkerboard” ownership that the 1915 agreement was entered into. The agreement recites that the parties each own land and mineral rights situated in the townsite within an area bounded on the north by the center line of Main and West Main Streets, on the east by the center line of Auburn Street, and on the south by the south boundary of the townsite as delineated on an official map of 1872; that one of the parties of the second part (one of defendant’s predecessors) also owns properties west of the western boundary of the town-site; that it is contemplated that each party may acquire hereafter other property and mineral rights within the above described boundaries of the townsite and also property outside the townsite and west of the west boundary thereof. (Agreement is printed, Supp. to App. Op. Brief, p. 1, et seq.) It is then provided that the purpose of the agreement is to adjust amicably and finally controversies which have arisen between the parties with regard to the extent of their respective rights within the boundaries described. By paragraph first of the body of the agreement the predecessor of plaintiff grants and conveys to defendant’s predecessors “all veins and parts of veins which have their tops or apices within the areas bounded as follows: on the North by the center line of West Main and Main Streets, on the East by the center line of Auburn Street, and on the South by the South line of the Grass Valley Townsite,” as shown on the official map, and “all veins which have their tops or apices west of the west boundary of said Townsite, and which lie beyond the center line of West Main Street extended indefinitely in its own direction northwesterly, and the south boundary of said Townsite extended indefinitely westerly, with the right to follow said veins on their downward courses indefinitely westwardly between said North and South boundaries, and said boundaries extended in their own directions westerly and eastwardly to the intersection of said veins with a vertical plane drawn through the center line of Auburn Street, and northerly to a vertical plane drawn through said center line of West Main and Main Streets, and southerly to a vertical plane drawn through the south line of said Grass Valley Townsite, extended in their own directions westerly.” (Supp. to App. Op. Brief, p. 3.) It is to be noted that the area within which veins must apex to be the property of the defendant’s predecessors is the area described in the preamble of the agreement. The apex of the Dromedary vein, which extends on strike for a considerable distance in a general north-south direction, lies, in part, within the bounded area. With any portion of such apex that may extend outside the bounded area we are not here concerned. The defendant’s predecessors, in turn, conveyed to plaintiff’s predecessor by paragraph second “all veins and parts of veins which have their tops or apices outside” the area bounded as described above, “with the right to follow said veins on their downward courses indefinitely.” (Supp. to App. Op. Brief, p. 4.) It is to be noted that plaintiff’s predecessor is given the right to follow veins apexing without the area indefinitely on their downward course beneath the bounded area, but that it is only in a westerly direction that defendant’s predecessors were to have the right to follow indefinitely to full depth veins apexing within the area. The apex of the Pennsylvania lies outside the bounded area. It was also provided that properties and rights which the parties might thereafter acquire within the defined areas should be subject to the agreement. Paragraph third of the agreement is as follows: “Should any of the veins hereinbefore described and conveyed to said parties of the second part [defendant’s predecessors] unite or form a junction on their downward course with any vein or veins hereinbefore described and conveyed to the party of the first part [plaintiff’s predecessor], the party of the first part shall be deemed to be the owner of the vein in its further downward extension below the line of union or juncture. If the veins, or any of them, belonging to the party of the first part intersect or cross a vein or veins of the parties of the second part, the ore at the space of intersection shall belong to the party of the first part. Below such intersections each party shall be entitled to pursue and mine its or their own vein.” (Supp. to App. Op. Brief, p. 6.) The court found that in framing the above paragraph the parties had in mind § 2336, Bevised Statutes, above quoted. (Cl. Tr., p. 65.) The parties admit that the words “unite,” “union,” “intersect,” “cross” and “space of intersection” were used in the agreement with the same meaning as those terms have in the statute. The obvious purpose of the agreement was to provide by contract for a form of extralateral right in the townsite lots somewhat similar to what would exist under a federal mining patent. This was done to overcome the difficulties of the “checkerboard” ownership above described. It will be noted that both the federal statute and paragraph third of the 1915 agreement provide for two situations, first, for an intersection or crossing of veins, and secondly for a union or junction of veins where they form a single vein below the rake of encounter. The contract provides that each party shall be entitled to pursue his vein below an intersection, and this is also the clear meaning of the statute. Defendant’s main contention, hereafter considered, is that there is an intersection within the meaning of the contract and the statute, with the result that the disputed vein is the downward continuation of the Dromedary vein beyond the intersection and is the property of defendant, and that the Wiggly vein, the fourth member of the intersection, is the downward continuation of the Pennsylvania vein and the property of plaintiff. But, in addition, and this is the point now under discussion, defendant makes an alternative inconsistent contention that the situation is something other than an intersection or junction as those terms are used in paragraph third of the contract; that even though the Pennsylvania and Dromedary veins unite to form a single vein, that vein thereafter divides into the disputed and Wiggly veins, which are “parts” of the single vein formed by the union, and such parts have their apices at the line where the vein divides. Since such line lies within the area bounded on the north by Main Street, on the east by Auburn Street and on the south by the south line of Grass Valley townsite, defendant argues that the Wiggly vein and the disputed vein are both its property under paragraph first of the contract of 1915. By that paragraph plaintiff’s predecessor conveys to defendant’s predecessors “all veins and parts of veins which have their tops or apices” within the bounded area. Defendant concedes that, if there is a clear-cut intersection, each party is entitled to pursue his own vein below the intersection under paragraph third. But, says defendant, where the identification as junction or intersection is “obscure” (Op. Br., p. 56), or where the veins meet and follow a common course along “a space of intersection for some distance to another and downward divergence” (Op. Br., p. 39), then paragraph third does not control, but the ownership of the down dipping forks is governed by the provision that “all veins and parts of veins” which have their apices within the bounded area are conveyed to defendant’s predecessor. If this construction be correct, it would mean that every vein, in addition to its normal apex, might have one or more subsurface apices at every point where it met another vein. If, as defendant contends in other portions of his argument (and as we are prepared to hold), there may be an intersection notwithstanding one vein cannot be visibly traced through another, then, under paragraph third, each party is entitled to his vein below the intersection. If, on the other hand, on the facts of the particular case, there is a union or junction, rather than an intersection, then, in our view, ownership of the single vein below the junction carries with it ownership of the forks into which the vein may later divide. In the absence of the phrase “parts of veins” in paragraph first there would be no ground for contending that ownership of the single vein below a union does not, under paragraph third, carry with it ownership of the forks into which the vein may divide. Furthermore, the single vein formed by a union within the bounded area, although without a branch, equally with the forks below a union, would be a part of vein with a subsurface apex, as would both lower members where there is without doubt an intersection. Yet in these situations ownership under the contract is clearly not made to depend on location of a lower subsurface apex. It is plain that under § 2336, Revised Statutes, ownership of the single vein below a union embraces ownership of down dipping forks into which the vein splits. The court found that the parties had the statute in mind in drafting the contract. It is true that the statute does not use the phrase “parts of veins” as does the contract, but we are of the view that the phrase was not used with an intent to alter the statutory scheme in this particular. Defendant cites no statute nor any decision involving a contract where ownership is made to depend on location of a lower apex rather than the apex nearest the surface. We are of the opinion that, had the parties to the contract of 1915 intended such an unusual result so contrary to the general mining law, they would have so provided expressly in paragraph third, rather than have left the matter to a strained implication from the phrase “parts of veins.” It would seem that the inclusion of this phrase is of little significance. There is no difference in the meaning of the contract whether these words are included or omitted. The phrase is probably referable to the fact that the parties held divided ownership of mineral rights in the bounded area west of Auburn Street, with the result that each might own parts of a vein. Obviously, plaintiff’s predecessor intended to convey to defendant’s predecessors only such parts as plaintiff’s predecessor owned. Or the parties may have had in mind a vein extending longitudinally along its strike beyond the bounded area, in which event only the part lying within such bounds extended vertically beneath the surface was conveyed to defendant. Then again the parties may have included the phrase with the thought that up dipping forks with separate apices under the agreement might be parts of veins in the sense that they were branches of other stronger forks. The interpretation for which defendant contends would not only be contrary to the general mining law, would not only lead to confusion and endless disputes, but would also lead to uneconomical mining. If defendant be correct, all downward forks with a subsurface apex west of Auburn Street would belong to defendant. In the event there was no nearby upward fork, with apex west of Auburn Street, the defendant would have no direct approach to the downward fork and could reach it only by cross-cut, that is, by cutting across country rock from vein to vein, rather than by following a vein. Occasionally, cross-cuts are used in mining operations. In fact, the Pennsylvania 2400 level near the shaft was originally reached by cross-cut from the plaintiff’s Empire vein. But a construction making cross-cutting the rule, rather than the exception, would be uneconomical and opposed to reason. For these reasons, we think that defendant’s construction of the contract based on the phrase “parts of veins” must be rejected. It follows that the ownership of the disputed vein depends on whether there is a junction between the Dromedary and Pennsylvania veins, in which event the vein is the property of plaintiff, or an intersection, in which event it is the downward continuation of defendant’s Dromedary vein. The trial court has found that there was a junction, and this finding must be affirmed unless as a matter of law it is without support in the evidence. Definition of “intersection” and “junction.” The parties disagree as to the definition of the terms “intersection,” and “junction,” as those terms are used in the 1915 agreement. Defendant contends that the basic finding of the court that there was a “junction,” is based upon an erroneous definition given the term “intersection” by plaintiff’s witnesses. In his memorandum opinion the trial judge stated that he did not base his judgment on plaintiff’s definition, but, in the view of defendants, the findings cannot otherwise be sustained. Plaintiff squarely takes the position that an intersection results only when a vein of one geologic age cuts across a vein of an earlier geologic age, in which event the later intersecting vein may be visibly traced through the earlier one. In this analysis a difference in age of veins is a sine qua non to the existence of an intersection, and visible traceability of one vein through the other is a manifestation of the process of formation. Also, in this analysis, the only vein that exists in the area of intersection is the vein of the youngest geologic age, it being the vein that intersects, cuts across, and displaces the older vein where the two veins meet. Defendant rejects plaintiff’s test of different ages, and contends that the criterion is principally one of position and appearance. Position is determined by strike and dip. “Dip” is broadly defined as the downward course of a vein, the direction or inclination toward the depth, while “strike,” at right angles to dip, is used to designate the longitudinal or horizontal course of a vein. (1 Lindley on Mines, p. 718, § 317.) Defendants concede (Cl. Br., p. 12), as they must, that, if plaintiff’s test of intersection be accepted as the correct one, then the finding that there was a junction and not an intersection is supported by substantial evidence. On the other hand, if the test proposed by plaintiff is incorrect, and that proposed by defendants is correct, then the question is presented as to whether, using defendants’ standards, the finding is supported. In the memorandum opinion of the trial court reference is made to the opposing definitions, and, it is stated: “. . . the court views the question as one not entirely controlled by legal definition but also a question of fact to be determined from the particular facts and circumstances as shown by the evidence in the case.” In the findings the trial court describes the relative positions of the respective veins, and describes in detail the differences in physical appearances between the Dromedary and the Pennsylvania veins. It is upon these findings that the trial court determined that there was a junction and not an intersection. Thus, it was the theory of the trial court that, applying the tests proposed by defendants, there was a junction and not an intersection. Plaintiff urges that the basic finding that there was a junction is supported by either of two theories. It first urges that, independent of the findings relating to the position and appearance of the veins, if its definition of “intersection” be accepted, there can be no doubt, and defendants admit, that there is substantial evidence that the two veins are of the same geologic age, and that one cannot be traced through the other. Therefore, it urges, the finding that there was a junction, is supported. On the other hand, if its definition of “intersection” be found to be incorrect, and, if the tests offered by defendants be applied as the proper criterion, it urges that the findings as to the relative positions and appearances of the veins are supported, and that these findings support the finding of junction. In view of this twofold argument in support of the ultimate finding under attack, logical considerations suggest that we should first determine the proper definition of the term “intersection,” because, only if the definition proposed by plaintiff be found to be incorrect, need there be considered the sufficiency of the evidence to support the findings relative to the position and appearance of the veins. We are convinced that the definition proposed by plaintiff must be rejected, and that the trial court properly applied the tests proposed by defendants. The parties are agreed that the term “intersection” has the same meaning in the agreement of 1915 as it has in § 2336, Revised Statutes. The contract gives to plaintiff rights which, under the statute, go to the prior locator. Dr. Buwalda, expert witness for plaintiff and head of the department of geology at the California Institute of Technology, testified that his conception coincided with the definition given in the Glossary of the United States Bureau of Mines. That definition is as follows: “Intersecting Veins. A vein or lode which cuts across one of earlier formation.” (Tr., pp. 978, 1586.) In elaborating upon that definition the witness testified that in order that there be an intersection there must be a deposition of the materials in the respective veins at different times; that the fracturing and deposition of vein material in the Pennsylvania vein was simultaneous with the fracturing and deposition of vein material in the Dromedary vein; that intersection, as a term in mining law, involves a time relation—a later vein cutting across an earlier one—differing in that respect from the meaning of the term as used in application to streets. The witness further testified that it was the “possibility of tracing one vein through another, through an older one,” which gave “rise to the relation of intersection.” (Tr., pp. 984, 925.) In this analysis the tracing through process is evidence of the difference in age of veins, and that one has cut the other. In illustration of his definition, the witness said that if a quartz vein and a galena vein came together at right angles, and the galena could be observed passing through between the edges of the quartz, there would be no doubt that there was an intersection. After the witness had said that the analogy was an unhappy one in that it would not be likely that a quartz vein and a galena vein would form simultaneously, he was asked by defendants’ counsel to draw a diagram depicting a junction of a galena vein and a quartz vein at the angles above specified. The witness then prepared a diagram, in form a right angle cross, introduced as defendants’ Exhibit L (Tr., p. 930), showing a quartz vein colored yellow and a galena vein colored brown. The central area is colored mottled brown and yellow to show a commingling of veins, with inability to trace either upper member through the central area to a corresponding lower member. The witness testified that under his definition there would not be an intersection even in such a case of definite correlation in position and kind of vein material between the upper and lower members. The plaintiff’s witness Mann also drew a diagram in the form of a right angle cross, depicting veins meeting, which was introduced as defendants’ Exhibit E (Tr., p. 452). He testified that unless one vein could be traced through from upper to lower member there would not be an intersection. Other witnesses for plaintiff gave similar definitions. In the analysis of plaintiff’s witnesses traceability of the vein is evidence that a later vein has cut or intersected an earlier vein. The fact that both the Dromedary and Pennsylvania veins are quartz with certain similar characteristics would not preclude there being an intersection within the meaning of plaintiff’s witnesses. That is, it would not be necessary that a different material be traced through. The witness Buwalda referred to a “structure” as running through where there is an intersection (Tr., p. 923), and one of plaintiff’s other witnesses referred to a tracing through of the gouge from an upper member to a lower member. In plaintiff’s brief it is said that some “distinguishing feature” of the younger vein must be traceable through the older one. (Resp. Br., p. 146.) Defendant contends that subsequent geological developments may affect traceability, thus destroying the evidence of intersection as plaintiff defines the term. Defendant refers to a statement as follows in Clark-Montana R. Co. v. Butte & Superior Copper Co., 233 F. 547, 570: “It is obvious, and also admitted, that if the veins cross at any one point, they must cross at all points, even though so obscurely as to be undiscover able. But this is not so of union. Every appearance of union and merger may exist at many places, but if one point of crossing is proven, all evidence of union avails nothing and the veins are proven to cross throughout. Sealing and cementation may destroy evidence of crossing in many places.” (Italics added.) Reference is also made to Clark-Montana Realty Co. v. Anaconda Copper Mining Co., 20 F.2d 1008, 1014, where the court stated: “Plaintiffs refer to the sometime appearance of union of veins, when in fact one intersects the other, and recementation by mineralizing solutions conceals the evidences, as of reference in the Elm Orlu Case [Clark-Montana R. Co. v. Butte & Superior Copper Co., supra].” The witness Buwalda testified to the Pennsylvania and Dromedary veins being of contemporaneous creation which, in his analysis, precluded an intersection, but' whether for this conclusion he relied solely on the fact, as he found it, that one vein could not be traced through the other, or on additional factors, is not plain. Defendants’ witnesses, on the other hand, testified that in determining whether there was a junction of veins they attached no significance to the relative ages of the two veins. The position of defendants is illustrated by the testimony of the witness Tolman (Rep. Tr., p. 1565): “Q. We have a particular question here: To your mind what is the distinction as the terms are used by geologists and mining men, between the situation where, on the one hand, the vein crosses another and intersects it, and, on the other hand, where a ve'in joins or unites with another ? A. I think the question is one entirely of geometry and identification. Q. Just explain that ? A. If one vein crosses another vein, the crossing is proved if the two portions of the first vein are correlated and the two portions of the second vein are correlated beyond each vein. In other words, the correlation is just as simple as the correlation of a street crossing. We know that one street crosses another when we find each street on either side of the other street, beyond the crossing, and it doesn’t make any difference at all how the street was developed, whether the grader went down one street and swung around the other. The relative age of the streets makes no difference, nor even whether one street was paved later than the other. The question is a question of crossing, in the minds of miners and in the minds of the common people: Are the two portions of one vein identifiable on each side of the crossing, and likewise are the two portions of the second vein identified as on each side of the crossing 1 Q. And with that definition, is it necessary that one vein be traceable or discernible throughout the point of meeting in its crossing of the other vein? A. I do not think it is necessary that the actual penetration of the two structures should be followed and, moreover, I believe in Grass Valley it might be a very, very difficult problem and work that is entirely unnecessary. Q. To that definition, is there necessary any questions of relative times of the fissures in which the veins appear or relative times of the deposits within either vein! A. I do not think that it is necessary to go into the question of relative times and I think that is especially true in regard to the Grass Valley District. Q. Why is that particularly true as respects that district? A. Because in the Grass Valley District, as is well known, we have a long series of events that have fashioned these ore deposits. We first had some fracture that controls the ore solution and controls the deposits or intrusion of the ores. The fissures were opened up and solution under pressure came up these fractures. Then, the ore was deposited, but even under the assumption that the ore came out at a general time it must have reached the different veins by different routes and the ore itself could be scarcely thought to be contemporaneous in different veins. Furthermore, the fracturing continued after the deposits of the ore and all of these features are a part of the vein. The deposition of the vein material itself took place in different stages.” The question, as we have said, is the sense in which the words “intersect” and “intersection” are used in § 2336, Revised Statutes, which provision, the court found, the parties had in mind in drafting the contract of 1915. Neither counsel has found decisions which squarely consider whether the time element is necessarily involved in the definition, or, if such element is involved, whether tracing through is essential to show different ages. To what weight is the definition in the Glossary of the Bureau of Mines entitled? Buwalda testified that he would take the definition there given as the one in current use and as representing the understanding of the mining profession. He also testified that such bulletins as the Glossary are usually made up by one of the senior members of the bureau and then passed around to others in the bureau with a view to getting as precise a definition as possible; that the definitions contained therein represent an agreement among the older men in the bureau; that he had no direct evidence as to the Glossary, but every reason to believe it was thus prepared. Defendant brought out, however, that the Glossary does not even attempt to define “junction” or “union,” as opposed to “intersection.” The definition of the Glossary is an interpretation by an administrative tribunal charged with development and promotion of the mining resources of the country. It does not appear, however, that the bureau in the performance of its duties has had occasion to apply this definition in determining rights among private owners or rights of such owners in relation to the government. Its definition is entitled to consideration, but it is not conclusive. Although there seems to be no decision squarely considering the meaning of the terms “intersect” and “intersection” as used in §2336, Revised Statutes, both parties construe judicial remarles as favoring their contentions. Plaintiff again quotes from Clark-Montana R. Co. v. Butte & Superior Copper Co., 233 F. 547, as follows (p. 561): “Defendant’s witnesses are of the opinion the Rainbow and Jersey Blue are of the same age and unite, the latter a strand of the former. Plaintiff’s witnesses are of contrary opinion. The latter definitely describe places where the Jersey Blue crosses the Rainbow, from observation.” (Italics added.) Plaintiff also refers to p. 568 of that opinion where the court stated: “. . . the Jersey Blue is found cutting the Rainbow.” There is no doubt implicit in these quotations the thought that veins of different age cross, while those of the same age unite, and that such crossing can be observed visibly. Plaintiff also refers to four quotations from Clark-Montana Realty Co. v. Anaconda Copper Mining Co., 20 F.2d 1008, 1010, where the court in discussing the facts and contentions of the parties there involved stated: “. . . at crossing, the Emily vein penetrates the Poser vein”; “. . . And in lower levels certain veins of East-West age . . . are intersected by veins of Northwest age”; “. . . plaintiff’s theory that the Poser vein is of Steward age . . “ . . . intersection affords an infallible test of. age. ’ ’ Plaintiff also places some reliance upon Consolidated Wyoming Gold Min. Co. v. Champion Min. Co., 63 P. 540, where the court seemed to imply that there is a union, rather than an intersection, where veins are formed and filled “at the same period of time, by the same force of nature.” (p. 545.) From these isolated phrases and sentences plaintiff draws the implication that intersection is an infallible test of age, and that the term “intersection,” in mining law, can only be .used in the sense of a later vein cutting across an earlier one. Defendant cites Esselstyn v. United States Gold Corporation, 59 Colo. 294 [149 P. 93], and Butte & B. Min. Co. v. Societe Anonyme Des Mines, 23 Mont. 177 [58 P. 111, 75 Am.St.Rep. 505], as discussing the nature of an intersection without indicating that a tracing through is required. The text-writers have little to say on the subject. Defendant includes in his briefs diagrams copied from Costigan’s Mining Law purporting to illustrate “veins uniting” and “veins crossing.” (Op. Br., pp. 40-41; Clos. Br., p. 10; Costigan, Mining Law, pp. 455, 457.) In these illustrations each vein is represented by a single dark line. They show two single lines meeting to illustrate “veins uniting” and two single lines crossing to show “veins crossing.” The discussion in connection with the diagrams says nothing of tracing through, or of age. Since the veins are illustrated by single dark lines on these diagrams, rather than by double lines, as on the Mann and Buwalda drawings, it cannot be ascertained from them whether the writers regarded one vein as passing through the other in the sense of being traceable through. Plaintiff quotes from Le Conte’s Elements of Geology, page 248, as follows: “The relative age of veins in the same region is determined in the same way as that of dikes, viz., by the manner in which they intersect each other: the intersecting vein being, of course, younger than the intersected vein.” This statement can be construed to mean that if veins do intersect in the sense of a later vein cutting across an earlier one, the vein which is the younger is, as the writer says, of course, the intersecting vein, while the older vein is intersected, rather than as expressing a view that in the law of mines there cannot be an intersection, as that term is used in the statute, if two veins are of the same age. It is apparent that there are neither definitive decisions nor convincing analysis by textwriters specializing in mining law on this subject. However, we are not without a guide to the proper meaning of the term. We think that the language and theory of the statute which the parties had in mind in drafting the contract demonstrates, to a certainty, that a tracing through is not essential to show an intersection. Section 2336, Revised Statutes, may well be quoted again: “Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purpose of the convenient working of the mine. And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.” Under plaintiff’s definition there must be a visible tracing through of the intersected vein by the later intersecting vein, or, perhaps plaintiff would admit that if that evidence has been obliterated by time, other evidence may be offered that in fact a later vein cut across an earlier one. If either of these tests be applied to the statute, strange results follow. Under the terms of the statute where veins “intersect or cross” the mineral within the space of intersection is given to the prior locator. If an intersection existed within the meaning of the statute only where one vein could be traced through another, then but one vein, the intersecting vein, exists in the area of intersection. If that is so, then the vein traced through in the space of intersection logically should be the property of the person who owned that vein, rather than of the prior locator, and it is reasonable to infer that the statute would have so provided. The only reasonable interpretation of the statute, is that it is drawn on the assumption that it may be impossible to tell one intersecting vein from the other in the space of intersection. Otherwise, why give the vein in that space to the one who happens to be the prior locator, rather than to the one whose vein occupies the space? The same result follows if the test that is applied is that, where there has been an obliteration of evidence that a later vein has cut across an earlier one, other evidence must be introduced to show a difference in age and to show that in fact a later vein cut across an earlier one. Such proof, if required to establish an intersection within the meaning of the statute, would at the same time establish to which owner should belong the ore in the space of intersection, without necessity for assigning it arbitrarily to the prior locator, as the statute does. The later vein would, by virtue of plaintiff’s very definition, occupy the space of intersection. From this reasoning it seems apparent that, while the words “intersect” and “intersection” are used to describe the geological process by which one vein cuts across another of earlier formation, in which sense a time element inheres in the use of these words, that they were not used with that limited meaning in the statute, or, consequently, in the contract of 1915. The statute was designed to regulate subsurface ownership, rather than to describe geological development. Defendant’s definition is not only a more logical one than that presented by plaintiff, but it results in a more equitable division of natural resources. Under plaintiff’s construction, even though veins or vein segments meet at right angles, and are equally strong, unless one can be traced through the other the owner of one upper member, the prior locator under the statute, the plaintiff under the contract of 1915, takes both lower members. A fairer division of the earth’s bounty is to give the owner of either upper member one of the lower members, and this is what the statute does. Plaintiff envisions great difficulty and uncertainty in mining operations unless the tracing through test be accepted. It is urged that if tracing through is the test, an owner can know which downward member connects with an upper intersecting member. Without that criterion he may go off upon the wrong down dipping member. But any test involves difficulties. Under the tracing through test experts may differ as to whether tracing is possible, as they have done in this case. We do not hold that a down dipping member however remote from an opposite up dipping member will be held to correlate with it. Nor do we hold that a lower vein however weak it may be, and unlike an up dipping fork, will be held to be the fourth member of an intersection of veins, rather than a branch of a single vein below a junction point. The question of intersection depends on a careful study of position and physical characteristics of veins and must be determined on the particular facts of each case. There are many problems in the law which admit of no other basis of decision. Since it is our conclusion that a tracing through is not essential to establish an intersection, the question is whether, as defendant contends, the factors of position and appearance, as a matter of law, show an. intersection. As already pointed out, these were the factors, and not plaintiff’s definition, that led the trial court to find there was a junction and not an intersection. The real question presented is whether, independent of the definition urged by plaintiff, and adopting the definition of defendants, as did the trial court, there is any substantial evidence to support the finding that a junction and not an intersection occurred between these two veins. Burden of Proof. Before directly discussing the sufficiency of the evidence, brief mention should be made of the contentions of the parties in relation to the burden of proof. Each party contends that the other has the burden of proof. Plaintiff urges that defendants must prove an intersection, while defendants insist that plaintiff has the burden of showing there is not an intersection, but a junction. Defendants’ theory is, that since the Empire Star Mines Company is plaintiff, and its right depends.on there being a junction, rather than an intersection, it had the burden of proving that there was a junction, in accordance with the usual rule that the plaintiff has the burden of proof. Plaintiff refers to extralateral right eases involving conflicting claims between those holding mining patents from the federal government, which indicate that although the plaintiff has the burden of proof, he makes a prima facie case of ownership of subsurface minerals by showing that they lie within his surface boundaries projected into the earth. The burden of going forward is then on the defendant, who must show that the mineral beneath plaintiff’s land is part of a vein which apexes outside plaintiff’s boundaries, and one line of authority holds that, in addition, defendant must show that the vein apexes within defendant’s surface boundaries. (3 Lindley on Mines (3d ed.) p. 2163, § 866; 36 Am.Jur. §§ 109-114, pp. 359-365.) By analogy plaintiff would apply a similar rule in this ease. It claims that it made a prima facie case by showing that it owned the mineral rights to lots 6 and 7, block 18, below a depth of 200 feet from the surface, under grant from the surface owners. But the adjudication of ownership, as hereafter will be pointed out, goes beyond those lots to the extent that the workings immediately below and above the 2400 level drift extend beyond the lines of said lots. Plaintiff did not show that the parts of such workings lying outside lots 6 and 7 were beneath lots which it owned. Upon the trial plaintiff did not rest upon a mere showing of ownership of lots 6 and 7, but, rather, set out affirmatively to prove a junction. We are of the view, therefore, that the burden was on plaintiff to establish a junction. However, we are also of the view that plaintiff has satisfactorily discharged that burden. We turn now to a discussion of that problem. Sufficiency of the evidence to support the finding that there was a junction. ■ Plaintiff and defendants introduced into evidence models of workings of the Pennsylvania mine, and of the Golden Center mine, in which the Dromedary vein is located. These models show drifts, winzes, raises and stopes in the general area where the two veins meet. A drift is a horizontal mine passageway driven on, or parallel to, the course of a vein. A vertical or steeply inclined passageway driven to connect a mine working with another at a lower level is a winze. Where a passageway is driven from a lower level to a higher, it is a raise. Excavations formed by mining ore are known as stopes. The position of veins in a general way is indicated by the workings, since they are run on the veins. The models show that the veins here involved are vast bodies of mineral which descend into the earth and extend on strike for hundreds of feet. The average strike of the Pennsylvania vein is just off due north and south, being N.10°W. The strike of the Dromedary vein is N.40°E. The veins vary in thickness from a few inches to four or five feet. Since the apex of the Penn-yellow vein lies east of the apex of the Dromedary, and since the dip of the veins is from east to west, the Penn-yellow vein may be said to underlie the Dromedary vein. The plaintiff’s 2400 level drift was run along the Penn-yellow vein in a northerly direction for a considerable distance to the meeting of that vein and the Dromedary vein. The drift was continued without break beyond the rake of encounter along a vein which plaintiff contends is a single vein formed by a union of the Dromedary and Penn-yellow, which single vein below the junction, it is contended, is the property of plaintiff under the 1915 agreement. It is plaintiff’s position that the Wiggly vein is a minor, insignificant down dipping branch of the single vein formed by the union of the Dromedary and Penn-yellow vein. Defendants contend that where this 2400 level drift proceeds in a northerly direction after the meeting of the Dromedary and Penn-yellow veins, it is on a continuation of the Dromedary vein beyond the intersection. The vein followed by the 2400 level drift where that drift continues northerly beyond the meeting of the Dromedary and Penn-yellow is called the disputed vein by defendants. From this portion of the 2400 level drift, that is, the portion north of the rake of encounter, stoping extends up dip to the east. The stoped area, from which ore has been removed, extends some distance south of the rake of encounter of the Dromedary and Penn-yellow veins onto what is admittedly Penn-yellow vein. According to the evidence produced by plaintiff, the stoping extends up dip 80 feet south of the meeting of the Dromedary and Penn-yellow. This factor is of considerable importance, as will later appear. It is defendants’ theory that, in the area in which the stoping took place above the 2400 level drift to the north of the rake of the Dromedary and Penn-yellow veins, the veins, both Dromedary and Penn-yellow, must be said to follow a common course, which constitutes a space of intersection, notwithstanding it is not possible to identify two separate veins in that area. In defendants’ analysis, as depicted on its model S, the two lower down dipping members, disputed and ■Wiggly, take off just above the 2400 level drift, with the result, in defendants’ view, that the 2400 level drift and lower workings of plaintiff are in fact upon the downward continuation of defendant’s Dromedary vein. On the model a space on the stope, just above the 2400 level drift, is colored a mottled red and yellow, indicating the area of commingling of the two veins before the separation into the disputed and Wiggly veins. Under the contract of 1915 both parties agree that the plaintiff is the owner of any vein material in the space of intersection. The basic question involved is whether there is, as defendants contend, a space of intersection, and then two veins, or whether, as plaintiff contends, after the rake of encounter, there is merely the downward continuation of a single vein formed by a junction of the Dromedary and Penn-yellow, with the Wiggly vein constituting a branch of the Pennsylvania. The drill holes through which water was introduced into the plaintiff’s workings penetrate the vein below the 2400 level, that is, the disputed vein, rather than what defendants contend is the space of intersection. The plaintiff’s Go Devil raise leads up dip from the 2400 level drift, commencing at a point north of where the Dromedary and Pennsylvania meet. For the most part it is upon the Penn-yellów vein, although it is defendants’ contention that immediately above the 2400 level drift it follows up the space of intersection where, in defendants’ view, the two veins, Pennsylvania and Dromedary, mingle before they separate again. The lower end of the Go Devil raise is shown on defendants’ model S in the mottled red and yellow which defendants use to depict what they contend is the space of intersection. The Prospect drift, a short drift, is run from the Go Devil raise in a southerly direction for a distance of 40 or 50 feet. Below the 2400 level drift are the Y and Z level drifts, both workings of plaintiff, the Z level being the lowest of plaintiff’s workings. It is conceded that these drifts are run along the same vein as the 2400 level drift north of the meeting of the Dromedary and Penn-yellow veins, that is, that they are upon the disputed vein down dip from the 2400 level drift. The Y and Z level drifts are reached by the No. 4 winze which extends down dip along the vein from the 2400 level drift, starting at a point a short distance north of the meeting of the Dromedary and Penn-yellow veins. The ■X level drift, on the same level as the 2400 level drift, is upon a branch of the vein followed by the 2400 level drift. The Y and Z level drifts extend on both sides of the No. 4 winze. There are large stopes between the X level and the Y level, and between the Y level and the Z level south of the No. 4 winze, and smaller stopes up dip from the Y level and Z level north of that winze. Two of the three drill holes through which the water entered plaintiff’s workings penetrated the stope south of the No. 4 winze between the X and Y levels. The earliest of the three holes penetrated the No. 4 winze below the Y level. ■ The models also show workings upon the Dromedary vein above its encounter with the Penn-yellow vein. The 1800 level drift of the Golden Center mine, which is upon the Dromedary vein, is but a few feet above and northwest of that portion of plaintiff’s 2400 level drift south of the meeting of the Dromedary and Penn-yellow. Above the Golden Center 1800 level drift are the 1650, 1400 and 1100 level Golden Center drifts, connected by winzes along the dip of the vein. The enjoined winze extends from above the 1650 Golden Center level drift to below the 1800 level drift. Plaintiff seeks to enjoin defendant from continuing that winze downward to a point where it will break into plaintiff’s workings. Before directly discussing defendants’ contentions as to the evidence, consideration must first be given to the argument of defendants that plaintiff has made an admission that demonstrates, to a c