Laserfiche WebLink
behind this is that each co-tenant has an undivided right to possess and use the co-owned property, <br />and this includes the development or mining of a mineral. As a co-tenant, the applicant may <br />develop the mineral estate without seeking consent from other co-tenants. For the purposes of the <br />Construction Materials Act, the documents submitted in this matter establish that the mineral estate <br />in the amended area is held as tenants in common. Therefore, based on the application of tenants in <br />common law, the Division believes the Applicant's right of entry to conduct a mining operation in <br />the expansion area has been established. <br />Division Comment <br />Based on the application of the well established area of tenants in common law, the Division <br />believes that legal right of entry for the currently permitted site is still valid. The- Applicant, as <br />owner of an undivided 75% of the current permitted site, continues to have the right to access the <br />property and the right to grant access to the property to Hocker Construction to conduct mining and <br />reclamation. Additionally, the Divisionbelieves, based on surface ownership and the tenants in <br />common ownership of the mineral rights to the acreage to be amended, the Applicant has <br />established legal right of entry to enter and conduct mining and reclamation on the property to be <br />added to the permit. The Division has further determined that any further determination related to <br />land ownership; to interpretation of the 1991 conveyance deed; and to whether the mineral rights <br />reservation in the 1991 deed included sand and gravel should be made in a court of law. Should a <br />future court decision conflict with the Division's determination regarding legal right of entry, the <br />Division will take any necessary actions to address the legal right of entry issue, once the court has <br />made its ruling. <br />b.) The objection letter states that the submitted amendment application indicates that an access <br />road located within the current permit, which is located on property under partial ownership by <br />Zellitti Properties, will be used to access the amended acreage, and that Zellitti Properties is <br />not granting use of the access road to the permittee. <br />Division of Reclamation, Mining, and Safety Responses <br />The issue raised by this comment relates to Rule 6.3.7 - Source of Legal Right to Enter, which states that <br />with the application materials for obtaining a permit, the Applicant shall "Provide a description of the <br />basis for legal right of entry to the site and to conduct mining and reclamation." <br />The documents submitted to the Division indicate that in 1991 Zellitti Properties conveyed its 25% <br />undivided surface interest to Barry and Martha Zellitti, reserving an access easement along with the <br />mineral rights under said lands. This access easement, to which Zellitti Properties :holds 25% tenant in <br />common ownership with the applicant, is the road which Zellitti Properties is stating it will not allow <br />legal right of entry onto to access the amended acreage. <br />Although, as described in the previous section, the Applicant, as a co-tenant of the access road in <br />question, has a legal right to enter the road and a right to grant use to Hocker Construction, the <br />Applicant has chosen to avoid complications related to legal right of entry on the amended acreage, and <br />has submitted a modification to the original amendment application which indentifies a new access road <br />that will be installed. This new access road will connect the amended acreage directly to the adjacent <br />county road, therefore, access to the amended acreage will not involve use of the property whose surface <br />4