Town of Moorcroft v. Lang

CARDINE, Chief Justice,

dissenting, with whom THOMAS, Justice, joins.

The majority opinion begins' its analysis of statutory dedication with the flat statement that the act of dedication creates three separate interests: a fee simple determinable in the surface used for the street, a possibility of reverter in the same property, and a separate mineral estate below the street. While I have no quarrel with the characterization of the first two interests, there is no basis for the statement that the mineral estate under the street is somehow severed from the mineral estate under the adjoining property. Since the majority’s result is based on this erroneous premise, I dissent.

The statement by the majority that a separate mineral estate underlying the street is created by dedication sets the stage for bizarre results. This separate mineral estate is presumably bounded on its sides by a vertical extension from the edges of the street above, with the upper limit of the mineral estate defined by the deepest points used for the street. Central to the majority’s thesis is the premise that this estate is severed on dedication from the remainder of the dedicator’s property and can thereafter only be conveyed by express reference and description in a conveyance. Thus, following the reasoning of the majority, the following scenario is possible:

1. The owner (O) in fee simple absolute of Blackacre subdivides the property.
2. O files a plat which shows streets in accordance with W.S. 34-12-102, and the plat is duly approved in accordance with W.S. 34-12-103. According to the majority, at this point a separate mineral estate under the streets is severed from the fee held by O.
3. Before any lots in the subdivision are sold, the plat is vacated in accordance with W.S. 34-12-106. The property dedicated for the streets reverts to O, who now owns the same property which he had prior to the dedication. However, it is now permanently divided into two estates, the mineral estate under the non*1187existent streets and the remainder of the fee.
4. 0 subsequently conveys “all of Blackacre in fee simple absolute.”
5. According to the majority, the separate mineral estate under the location of the formerly platted streets is not conveyed with Blackacre because it is not specifically described in the conveyance. As a result, 0 retains the separate mineral estate, which is described by a plat which has been vacated, with reference to streets that do not exist.

While I recognize that such a result could be reached by proper conveyancing, I do not agree that this type of “mineral reservation by implication” is required, or even supported, by the statutes providing for dedication of streets for the public use.

Our previous decisions treat the statutes concerning dedication of streets as being concerned with the streets, not with the dedicator’s remaining property. When streets are dedicated by the filing of the plat, the property interests which the dedicator relinquishes include “only the surface and so much of the subsurface as is necessary for street construction and municipal services.” City of Evanston v. Robinson, 702 P.2d 1283, 1289 (Wyo.1985). Only the shallow strip required for the street is severed from the property of the dedicator.

While it is true that such statutory dedication effects a horizontal severance of the mineral estate from the surface estate dedicated for the purposes of streets, this court has never held that said dedication effects a vertical severance of the mineral estate underlying the street from the mineral estate underlying the abutting property. In the City of Evanston case, we rejected the theory that the dedication of the street causes a vertical severance in the mineral estate below the street:

“We would impermissibly strain the express statutory provisions were we' to hold that those areas set apart for streets and alleys include a band of ground extending to the center of the earth and encompassing all of the minerals beneath the roadways.” 702 P.2d at 1289.

Dedication under the statute therefore results in a severance of only the width, depth and length of the property required for the street. The dedicator still retains the entire remaining estate, including the complete and undivided mineral estate underlying his property. Since the mineral estate underlying the street is not severed from the surrounding land held by the dedicator at the tíme of the statutory filing, the dedication statute does not affect the later disposition of the property.

Thus, the true question is whether a subsequent transfer of the abutting property implies a reservation to the grantor of the mineral estate underlying the street. This question may be answered by reference to the existing law of the state and does not require adoption of the “implied reservation” theory advanced by the majority.

In the absence of statute or contrary judicial decision, the common law is the law in the state of Wyoming. W.S. 8-1-101. The majority correctly recognizes the common law rule, which is that a conveyance of property described as bounded by a street is presumed to extend to the center of the street. Coumas v. Transcontinental Garage, 68 Wyo. 99,118, 230 P.2d 748, 754, 41 A.L.R.2d 539 (1951); see also cases collected at 49 A.L.R.2d 982 (1956). This rule is not, as the majority suggests, based on theories of appurtenant easements and unity of title. Rather, it provides a presumption to clarify the legal boundary of property that has been described in a conveyance by reference to a street or a plat. The basis for the presumption is succinctly stated in 2 Thompson on Real Property § 360, pp. 371-72 (1980 Replacement):

“It is an established rule that a conveyance of land bounded on or by a way, whether public or private, carries the title to the center of the way, if the grant- or’s title extends so far. The reason in support of this rule rests partly upon the principle that the legal terminus of a boundary by a monument is at the central point of the monument, and partly upon the presumption that ordinarily the grantor has no intention of reserving a fee in the boundary street or way when *1188its fase [sic] has ceased to be of benefit to him.” (footnotes omitted)

While the conveyance cannot grant the street area itself because the fee is held by the municipality, there is nothing in the record to indicate intent of the grantor to reserve the mineral estate under the streets. The intent of the parties at the time the conveyance is made is not subsequently altered by the discovery of valuable minerals. I see no reason to imply a reservation merely to provide a windfall to the grantor. A basic principle of conveyancing is that reservations and exceptions must be expressly spelled out; in the absence of such language, a conveyance is presumed to transfer the entire estate owned by the grantor.

Nor can the grantor rely on an implied reservation by operation of law. At the time when the lots were originally conveyed, Wyoming had not ruled on the question; but in other states there were two general rules concerning the land under dedicated streets. In some states, the abutting landowners owned the entire fee subject to an easement for the street. In others, the municipality owned the entire fee, including both the surface and mineral estates. See, e.g., Lambach v. Town of Mason, 386 Ill. 41, 53 N.E.2d 601 (1944) (quoted in majority opinion at 1183). However, in no state was the grantor presumed to have retained the mineral estate under the street absent express reservation after the abutting lots have been conveyed. See, e.g., Buell v. Redding Miller, Inc., 163 Colo. 286, 430 P.2d 471 (1967) (discussing statutory dedication in conjunction with City of Leadville v. Bohn Mining Co., 37 Colo. 248, 86 P. 1038 (1906)). There is no basis for an assertion that a grantor could rely on the law to imply a reservation of the land under dedicated streets. Therefore, absence of an express reservation of such land logically infers a lack of intent to reserve such land.

Since there is no evidence of intent by the grantor to retain the mineral estate, the common law presumptions should apply.1 When the legislature enacts a statute dealing with property, it does not necessarily follow that all of the common law rules dealing with property are abrogated. We construe the meaning of statutes in light of the common law. Goldsmith v. Cheney, 468 P.2d 813, 816 (Wyo.1970). More specifically, we have said that “in construing statutes the rules of the common law are not to be changed by doubtful implication nor overturned except by clear and unambiguous language.” McKinney v. McKinney, 59 Wyo. 204, 213, 135 P.2d 940, 942 (1943). While W.S. 34-12-104 describes the property interests dedicated to the public use, it does not purport to affect the remaining property of the dedicator. The only statute which makes reference to disposition of property after lots have been sold according to the plat is W.S. 34-12-109, which provides that on vacation of a street in accordance with statute “the proprietors of the lots so vacated may enclose the streets * * * adjoining lots in equal proportions.” Neither of these statutes refers to the mineral estate underlying the street.

There is nothing in the statutes which is contrary to the common law presumption. Application of the common law results in the title to the mineral estate under the street being in the abutting landowners, and I would so hold. Accordingly, I dissent from the result reached by the majority.

. The cases cited by the majority for the proposition that the common law presumption is not applicable where dedication creates a "fee,” (majority at 1183, n. 2) do not involve a situation where the "fee" of the street has been severed from the “fee” of the underlying mineral estate. The cited cases are all from jurisdictions which treat statutory dedication as vesting title to both the surface and mineral estates in the municipality, a situation different from that presented here. See Annotation, Relative rights, as between municipality and abutting landowners, to minerals, oil, and gas underlying streets, alleys, or parks, 62 A.L.R.2d 1311 (1958).