Radke v. Union Pacific Railroad Company

Mr. Justice Moore

dissenting.

Although I did not participate in the consideration of this case at the time the original opinion was announced I have elected to do so upon consideration of the petition for rehearing.

The majority opinion expresses a theory that does violence to settled principles of real property law. A reservation entirely clear in its expression is contained in a deed conveying land. That reservation expressed in detail the essentials' of a mineral estate, to-wit: The exclusive right to prospect for minerals, to mine and remove the same if found and to use the surface for *212 those purposes without limit as to time or any other ■condition, burden or qualification.

I cannot agree that such an estate was a mere license ¡subject to revocation in any manner by the grantee or his successors in interest. In my opinion the reservation in this case created an outstanding mineral estate vested .in the Defendant in Error under the authority of the ■cases from many jurisdictions including the United States Supreme Court and the numerous other authorities reviewed in the Petition for Rehearing and previously in the Answer Brief.

Speaking of an identical reservation, the United States Supreme Court stated that the deed reserved “an exclusive right in the Union Pacific Railroad Company to mine, under said land, for coal and other minerals, and to remove the same”; that it was a “right of the railroad ■company for all time”; and that the grantee could not compel the railroad “to surrender or waive this reservation.” Adams v. Henderson, 168 U.S. 573, 578, 580 . I agree with that ruling made over sixty years ago. That the language used is not “Obiter Dicta,” but essential to the decision of the Supreme Court, is evident to me from the fact that if the reservation had created a license, revocable at will by the grantee or his successors, it could not have been, as the Supreme Court held, an encumbrance on the grantee’s title.

6 Thompson on Real Property (1940) Section 3462 states: “A reservation of an exclusive right of mining coal or ores from the granted land clearly operates as an exception of the mines from the grant. Minerals, coals, and ores, excepted from a grant remain in the grantor as before the grant.” See also 1 Thompson on Real Property Sections 97 and 98. Jones on Easements (1898) Section 57, similarly states the rule, “a grant of exclusive right to take all the coal in certain land is in effect a sale of the coal itself. It is not an incorporeal right, but a right to part of the land itself.” 36 Am. Jur. 323 , “Mines and Minerals,” notes that, “it is only when *213 the right to mine the minerals is not exclusive that it may be classed as an easement in the nature of a license. Mills-Willingham Law of Oil and Gas, which is quoted in the majority opinion in another connection, describes the legal effects of a provision such as the present one as follows:

“If, therefore, the instrument were an unconditional grant of the exclusive right without any burdens or qualifications, i.e., without provision for royalty, it would certainly vest the estate in the grantee upon its execution and delivery. In Jurisdiction (s) where oil and gas are capable of ownership such a grant of an exclusive right would operate to transfer not an incorporeal hereditament but a corporeal one.”

The opinion of the court cites no case either holding or stating in obiter dicta that a reservation or grant of an exclusive and unlimited right to mine and remove minerals results in a mere license. Such an instrument severs the mineral rights from the surface estate. Benson v. The Miners’ Bank, 20 Pa. St. 370; Caldwell v. Fulton, 31 Pa. St. 475, 72 Am. Dec. 760 ; Delaware & H. Canal Co. v. Hughes, 38 Atl. 568 ; Lee v. Bumgardner, 10 S. E. 3 (Va.); List v. Cotts, 4 W. Va. 543 ; Jamison Coal & Coke Co. v. Carnegie Natural Gas Co., 87 S. E. 451 ; Gray-Mellon Oil Co. v. Fairchild, 292 S. W. 743 ; Stanton v. T. L. Herbert & Sons, 211 S. W. 353 .

The fact that the owner of the exclusive right to mine and remove minerals also has the exclusive right to prospect for them does not detract from or qualify his ownership rights. States Oil Corporation v. Ward, 236 S. W. 446 , (Texas); Woodside et al v. Ciceroni, 93 Fed. 1 CCA 9 (1899); Scott v. Laws, 215 S. W. 81 (Kentucky). Indeed, one of the attributes and rights that goes with ownership of minerals, even if not expressly stated, is the right to prospect for the minerals. Simpson v. Langholf, 133 Colo. 208 , 298 P. (2d) 302 . We have held that a deed may reserve or grant the mineral title even though it does not specifically refer to the minerals in *214 place. Haymaker v. Windsor Reservoir & Canal Co., 81 Colo. 168 , 254 Pac. 768 ; Simpson v. Langholf, supra; Corlett v. Cox, (decided December 15, 1958).

In my opinion the district court was correct in holding that the deed here reserved the mineral estate in the grantor. I would follow the previous decisions of this court, of the United States Supreme Court and of other states rather than overruling or rejecting them.

For these reasons I cannot concur in the majority opinion.