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Tenants in Common Ownership <br />From the documentation provided to the Division it appears that Anthony Zellitti and Zellitti <br />Properties own the various percentages of both the current pit property and the amended area <br />property as tenants in common, meaning each co-tenant has an undivided right to the whole <br />property. Tenants in common means there is no ownership line down the middle of the property nor <br />is there a clear division of mineral ownership-each co-tenant has an undivided interest in the entire <br />property. However, each co-tenant can treat their interest in the property as separate interests when <br />it comes to use and development. Each tenant in common can develop or use the property as they <br />see fit. So, although it is held as an undivided interest in property, in practice, a co-tenant may use <br />the property almost as if it is owned separately. The only restrictions of a tenant: in common <br />relationship is that during the co-ownership each co-tenant must not commit waste and they must <br />allow the other co-tenant to have possession of the property if they want it. One co-tenant cannot <br />"oust" the other, meaning they cannot deny the right to share the property or use the property in a <br />manner that precludes the other tenants from reasonable use. However, conflicting use or <br />development of the property does not necessarily lead to an ouster. <br />The surface right for the proposed area to be amended is apparently owned, as tenants in common, <br />by Anthony,. Marilyn, Barry, and Martha Zellitti. In a 1991 warranty deed (later corrected in 1995) <br />submitted to the Division by the Applicant and by Wilma Zellitti, Zellitti Properties conveyed its <br />25% surface interest as tenant in common to Barry and Martha Zellitti. This conveyance resulted in <br />Anthony, Marilyn, Barry and Martha Zellitti having 100% interest in the surface area subject to the <br />amendment application. Zellitti Properties no longer has any surface interest in this property (with <br />the exception of an easement road that was expressly reserved and that is not included in the <br />amended acreage). Wilma Zellitti and Zellitti Properties cannot object to the use of the surface <br />estate in the amended area as a landowner because they conveyed all the surface rights to Barry and <br />Martha Zellitti in 1991. (The reserved easement, or access road, will be discussed below.) <br />Therefore, it is the Division's opinion that legal right of entry onto the surface estate of the amended <br />area has been established, and proper supporting evidence has been supplied to the Division by the <br />Applicant. <br />In regard to the mineral estate under the proposed amended area, in the same 1991 deed (amended in <br />1995) Zellitti Properties reserved from the conveyance of the amendment property the "mineral <br />rights underlying said lands". This mineral rights reservation severed the surface and mineral estate <br />in the property, however, Zellitti Properties' reservation was only its 25% tenants in common <br />ownership of the "mineral rights". The Division believes the other 75% mineral estate is owned by <br />Anthony and Marilyn as tenant in common. <br />The reservation of mineral rights, and what those rights include, is a difficult legal area subject to <br />interpretation and possibly a court determination of property rights. Therefore, the Division is not <br />making a determination as to whether Wilma Zellitti's reservation of the "mineral rights" included <br />sand and gravel. The Division is basing its recommendation for approval over objection on the well <br />settled area of tenants in common law. <br />The Division believes Zellitti Properties demonstrated a 25% ownership of the mineral rights to the <br />amendment acreage. This mineral right is held as tenants in common with Anthony and Marilyn <br />Zellitti. The majority rule is that each co-tenant can individually develop minerals. The theory