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08/18/2006 07:07 7192751715 CONST SERVICES BLDG PAGE 09 Ms. Kate Pickford Division of Reclamation Mining and Safety August 17, 2006 Page 3 (tenancy in common is a form of ownership in which each cotenant owns a separate fractional share of undivided property). The principle that conveyances or reservations of fractional interests in real property typically create a tenancy in common applies equally to mineral interests. With regard to mines and minerals when a person owning the entire fee conveys a fractional interest in the minerals to another, he or she becomes a tenant in common with the grantee. The same rule applies to the converse of such a transaction, that is, where the owner of the fee, on conveying it to another, reserves or excepts a fractional interest in the minerals. 20 Am. Jur. 2d Cotenancy and Joint Ownership § 39 (2006). See aLro C.L. Thornhill v. System Fuels, Inc., 523 So. 2d 983, 985 (Miss. 1988) (A "reservation of or a conveyance of a fractional interest in the minerals ... creates a tenancy in common between the parties to the minerals."). The Colorado legislature has expressly codified this long-standing principle. C.R.S. § 34-44-103 ("If two or more persons own any mine they shall be considered tenants in common."). The 1963 Warranty Deed conveyed a 100 percent interest in the surface estate of the subject lands to the grantee (Allen's predecessor Jn interest), and created a tenancy in common in the mineral estate held 50 percent by the grantor and 50 percent by the grantee. Consequently, even if Cargill was successful arguing that the 50 percent mineral reservation includes sand and gravel, Cargill would own that interest as a tenant in common with Allen. It is well established that a tenant in common has the right to use his or her property as well as receive a proportionate share in any income produced from the property without the consent of the other cotenants. Taylor, 92 P.3d at 964. Without the consent of their cotenants, tenants in common may also transfer their interests by deed or lease, and may encumber their interests with a mortgage or other lien. Id; see also, William 13. Stoebuck & bale A. Whitman, The Law ofPraperty 179 (3d Ed. 2000). Stated more broadly, "[u]nder fundamental concepts of property law, [e]ach tenant in common holds his interest and his title independently of the other cotenants." Sant v. Stephens, 753 P.2d 752, 759 (Colo. 1988} (internal quotations and citation omitted). Thus, Allen's rights in the mineral estate are distinct and independent from the rights of any other parties, and Cargill's quiet title action, if successful, would have no effect upon Allen's ability to use, profit from, transfer or encumber its interest in the mineral estate, including any sand and gravel included therein. The Colorado courts have long recognized, as a matter of common law, that a cotentant need not obtain the consent of other cotenants prior to entering property and extracting minerals. See, e.g., Walfv. Childs, 94 P. 292, 294 (Colo. 1908) (holding that where first cotenant extracted mineral resources without consent of second cotenant, first cotenant was stilt entitled to retain the proceeds of the resources he extracted, and acknowledging that an action for accounting could be brought by the second cotenant); Wahl v. Larsen, 201 P. 48, 49-50 (Colo. 1921) (recognition of a cotenant's right to enter and mine without the consent of other cotenants).