PERMFILE100850

• Permit No: M1994011
• IBM Index Class Name: Permit File
• Doc Date: 12/29/1985
• Doc Name: DISTRICT COURT MONTROSE CNTY COLO CASE 95-CV-30
• Media Type: D
• Archive: No

Plaintiffs may have had an intent to retain the sand and gravel
rights, that intent was theirs alone, and there is no evidence
[hat was an agreed upon intent of the parties to the deed. The
unilateral intent of the purchaser, uncommunicated to the pur-
chaser (Fedrick/Witty and not agreed [o by the purchaser is
insufficient to sever the sand and gravel rights.
The Court heard testimony from Mr. Moon and Mr. Groom
as to the intent of the Plaintiff, but has heard no testimony to
indicate that either Fedrick or Witt understood and intended that
Plaintiff was going to retain sand and gravel rights as part of
the reservation contained in the deed. The uncorroborated
unilateral intent of the grantor is not enough. It must also be
the intent of the grantee. In fact, the court in the Morrison
case, page 213, stated: "The reservation of 'all minerals' is
inherently ambiguous." As the drafter of the legal description,
including the reservation language, this ambiguity must be
resolved against plaintiff, particularly where subsequent pur-
chasers of record would have no idea that sand and gravel was
included in the reservation. Surely subsequent purchasers under
our race-notice statute are not required to reconstruct and
ascertain the intent of both parties involved in transactions
that may have occurred 20, 30 to 50 years ago. The words 'sand
and gravel' could easily have been utilized and the plaintiff had
several opportunities to do so.
The Ferrell case sets out the general principles con-
trolling this matter and was cited in 1979 by the Court of
Appeals. The court stated, at page 373 of the Ferrell case, that
the word "minerals" when found in a reservation out of a grant of
land "means substances exceptional in use, in value and in
character and does not mean the ordinary soil of the
district which if reserved would practically swallow up the
grant .; and secondly, that in deciding whether or not in a
particular case exceptional substances are 'minerals' the true
test is what the word means in the vernacular of the mining
world, the commercial world and land owners at the time of the
grant, and whether the particular substance was so regarded as a
mineral."
In applying this standard, the testimony established
that sand and gravel deposits, together with deposits or rock and
outcroppings of rock, are everywhere on the mining claims. True,
approximately 450 acres of the total 1,051 acres are used for
farming, however the testimony established that the topsoil was
shallow and that there were deposits of rock, sand and gravel
underneath the Copsoi] and that a rock picker is used to clean
the fields in the springtime. In other words, it appears to the
Court that the mining claims are substantially covered with rock
and underlain with sand and gravel.
The evidence established the ranch was primarily
15