Laserfiche WebLink
As a matter of Colorado common law, a co- tenant in <br />mining property may mine and extract, mill, and dispose <br />of the ore subject only to the duty to account to the <br />nonworking co- tenant for his or her proportionate share <br />of the profits produced by the mining activity. <br />"In addition," says CC &V, on Pages 34 -35: <br />Colorado has a special statute granting broad rights to <br />a co- tenant of mining property. The statute specifies <br />that any tenant in common shall have the right to <br />"enter upon, occupy, prospect, develop and work" a <br />mine, "in a miner like manner, extracting, milling, and <br />disposing of the ore from the common property without <br />the consent of any nonworking tenant in common, subject <br />to accounting to the nonworking tenant for his <br />proportionate share of the net profits of such mining <br />operations," citing Colo. Rev. Stat. ' 34 -44 -103. <br />On Page 36 of the Cresson Project Mining Development Plan, <br />Amendment 1, Attachment 1, under the heading "E. Legal Right to <br />Enter Severed Mineral or Surface Estates," CC &V states that: <br />As a matter of Colorado common law, a surface owner may <br />use the surface estate in any manner that is not <br />inconsistent with the rights of [the] mineral owner. <br />The surface owner must allow the mineral owner access <br />to his /her property. <br />CC &V assumes that Colorado common law, insofar as it existed <br />prior to Colorado statehood and the adoption of the State <br />Constitution in 1876, controls here and now, save only for a 1923 <br />Act of the Colorado General Assembly granting rights even broader <br />than those allowed by the common law. CC &V presumes that there <br />has been no change in the law during the past 85 years. <br />Article II, Section 14, of the Constitution of the State of <br />Colorado, effective August 1, 1876 (with supplemental exceptions <br />Not relevant here), plainly states that: "Private property shall <br />not be taken for private use unless by consent of the owner." <br />From then until enactment of the 1923 Act, a fair number of cases <br />involved consent as between working and nonworking co- tenants, <br />but none of those cases and the very few cases since then created <br />legal liability in the nonworking tenant for the acts of the <br />working tenant. <br />By 1980, however, with passage of the Comprehensive <br />Environmental Response, Compensation and Liability Act of that <br />year ( "CERCLA "), 42 U.S. Code ' 9607, anyone "with an ownership <br />2 <br />