concurring specially.
[¶ 14] I agree this case is governed by our decision in Hild v. Johnson, 2006 ND 217, 723 N.W.2d 389. However, it is clear to me on the facts of this case as found by the trial court that neither the landowners who executed the original lease nor Contex Energy Company, the original lessee, intended to include the mineral acres under White Lake in the lease. As the majority opinion notes, not only did the notation on the leases describe only the “dry acres” and not the acres under the lake, the bonus payments for those acres under the lake were not paid at the time of execution of the lease. EOG only offered to make those payments some five years after the execution of the lease when the State disclaimed ownership of the land beneath the lake.
[¶ 15] Nevertheless, by operation of law the mineral acres under the lake are subsequently determined to be included in the lease at the time the State disclaimed ownership, thus rendering the actual intent of the original parties to the lease immaterial. This concept is captured by the decision in Hild when we cited with approval authorities from other jurisdictions and treatises holding that where an instrument conveys all of the tract, the significance of the conveyance is that the grantor “intended” to convey all the land in the tract, whatever its acreage and that “intent” is not abrogated by a difference between the description of the tract and the number of acres recited in the conveyance. Hild, 2006 ND 217, ¶¶ 13-15, 723 N.W.2d 389.
[¶ 16] In Hild we also cited with approval North Dakota Mineral Title Standards (1989), Standard 3-02, which, at *54least as to the grant of an undivided mineral interest, provides that the grantee of an undivided mineral interest acquires the mineral acres in the conveyance “but such interest is limited to the extent the grantor has title to such lands.” Hild, at ¶ 10. This provision apparently protects the grantor of an undivided interest from breach of warranty of title where the grantor does not own all the mineral acres in which the lease purports to convey an interest. It is not clear to me that the same rule applies where the lease, as we construe it, purports to convey the interest in all the mineral acres but it is determined that the lessor does not own all the mineral acres.
[¶ 17] If this decision were truly based on the actual intent of the parties as contrasted with the intent ascribed to the parties by the law, I would affirm the trial court. However, as I note above, it is the intent ascribed to the actions of the parties by the law that is controlling in these circumstances. There are instances in which the need for certainty in titles and the resulting expedience for the title examiner take precedence over the actual intent of the parties. This is such an instance.
[¶ 18] Gerald W. VandeWalle, C.J.