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Kinney v. Keith <br /> 128 P.3d 297 (2005) <br /> Stephen H. KINNEY and Rocky Mountain Bluebird Ranch, a California corporation, Plaintiffs- <br /> Appellants, v. Raymond E. KEITH, Brenda M. Keith, Thomas K. Colbert, Virginia N. Colbert, and <br /> Mountain Gravel and Construction Co., a/k/a Mountain Gravel and Construction, Inc., a <br /> Colorado corporation, Defendants-Appellees. <br /> No. 04CA1406. <br /> Colorado Court of Appeals, Division V. <br /> December 1, 2005. <br /> *300 Jon Lewis Kelly, Cortez, Colorado; Charles G. Kinney, Oakland, California, for Plaintiffs- <br /> Appellants. <br /> Dufford, Waldeck, Milburn & Krohn L.L.P., Nathan A. Keever, Grand Junction, Colorado, for <br /> Defendants-Appellees. <br /> it *304 There is a diversity of judicial thought on the recurring question of whether ordinary <br /> gravel and common sand, which are primarily used, as they are in the instant case, as <br /> aggregates in the mixing of concrete, are minerals. The general rule appears to be that gravel <br /> and common sand are not included within the meaning of the word "mineral" as that term is <br /> used in conveyances either granting or reserving mineral interests: <br /> Generally, the courts appear to find no intention on the part of those entering into a "mineral" <br /> conveyance to include ordinary building sand in the category of minerals unless there appears <br /> some positive intention to do so. This seems to be particularly true in areas where sand and <br /> gravel are common but where the most usual subjects of mineral conveyances are oil and gas. <br /> Also, where a large part of the surface is occupied by sand and gravel, the courts are likely to <br /> find that inclusion of these materials in the term "minerals" would tend to swallow up the <br />