PERMFILE123615 - Laserfiche WebLink

Home Browse Search

08/18/2006 07:07 7192751715 CONST SERVICES BLDG PAGE 10 Ms. Kate Pickford Division of Reclamation Mining and Safety August 17, 2006 Page 4 Colorado is in accord with other jurisdictions that have considered the issue. See, e.g., Slade v. Rudman Resources, Inc., 230 S.E.2d 284, 286 (Ga. 1976) ("[T]he weight of authority is in favor ofthe co-tenant's right to extract minerals, subject to an accounting"); White v. Smyth, 214 S.W.2d 953, 965-67 (Tex. App. ].947) (accord); Earp v. Mid-Comment Petroleum Corp., 27 P.2d 855, 858 (Okla. 1933) (owners of frecrional interest in oil and gas are contenants and each contenant has right to enter property to explore for and develop those minerals). Colorado has also codified this principle. 13y statute, a cotentant holding an interest in a mining property "shall have the right to enter upon, occupy, prospect, develop, and work said mine in a minerlike manner, extracting, milling, and disposing of the ore from the common properly without the consent of any nonworking tenant in common, subject to an accounting to the nonworking tenant in common for his proportionate share of the net pro£ts of such mining operations." C.R.S. § 34-44-103. Thus, even ifa court determined that Cargill owns 50 percent ofthe sand and gravel within the Allen property, Allen has the right to enter its property and mine the sand and gravel. Cargill's quiet title action, has no bearing on Allen's right tv obtain Board approval of a reclamation pernnit for such purposes. ~ 13. Cargtll's Cotnplatat is Uosupported As discussed above, Cargill's claim to a 50 percent interest in the sand and gravel, even if proven, would not affect Alien's right to enter the property and mine sand and gravel therefrom. Moreover, it is clear under Colorado law that Cargill has failed to show any valid basis for its claim to a 50 percent interest in the sand and gravel. The mere filing of a quiet title complaint in no way affects the underlying interests of the parries or prevents a party from entering the subject property, until a court has made a final determination of the parties' rights. In a quiet title acdan, "each party is required to assume the burden of establishing by competent evidence its title to the lands respectively claimed. Kinney v. Keit1~ 128 P.3d 297, 302 (Colo. App. 2005). As the Division has previously concluded, A11en is the only party which has produced such evidence-specifically, its deed to the property. See May 5, 2006 Rationale for Recommendation for Approval Over Objections, pp. 6-7, indeed, Cargill's quiet title complaint contains no new information supporting Cargill's claim. A property reservation is construed more strictly than a grant, and any ambiguities iun a reservation are consulted against the grantor. Notch Mountain Corp. v. Elliott, 898 P.2d 550, 557 (Colo. 1995). Under Colorado law, the "general rule" is that "gravel and common sand are ' (n fact, the Board approved reclantation permits allowing Park County to mine sand and gravel on property adjacent Allen's property, even though that County property is subject to the same 50 percent minerals reservatioa undm the 1963 Warranty Deed. See MI,RB Permit M-1980-251 (Ansley Fltu Pit Permit issued on April 1,1981) and MLitB Permit M-1995-027 (Ansley Flat Pit #Z Permit issued on May 8, 1995). That County property Is also subject ro Cargill's quiet tide action.