dissenting.
I respectfully dissent and would affirm the trial court. In my opinion three principles of law control this case.
First, where deed language conveys the surface and reserves one specific mineral, the entire estate passes to the grantee except the mineral specifically reserved. Ramage v. South Penn Oil Co., 94 W.Va. 81, 118 S.E. 162 (1923); Anderson v. Pryor, 51 Ohio App. 35, 199 N.E. 364 (1935); West Virginia Dept. of Highways v. Farmer, 159 W.Va. 823, 226 S.E.2d 717 (1976).
Second, where deed language conveying the surface and reserving one specific mineral is held to be ambiguous, the courts have consulted both the language of the deed and extrinsic evidence proving the intent of the parties. Ramage v. South Penn Oil Co., 94 W.Va. 81, 118 S.E. 162 (1923); Bogart v. Amanda Consolidated Gold Mining Co., 32 Colo. 32, 74 P. 882, 884 (1903); Copenhaver v. United Fuel Gas Co., 110 W.Va. 69, 156 S.E. 884 (1931).
Finally, where the original grantor was involved in a business directly related to the mineral reserved (here the phosphate industry), there is a presumption that it was the grantor’s intent to reserve only the mineral stated. Bruen v. Thaxton, 126 W.Va. 330, 28 S.E.2d 59 (1943).
The trial court correctly analyzed the facts and the law applicable thereto in its Findings 9, 10 and 11, and in its Conclusions of Law 2 through 8 which read as follows:
9. At the time the deed was made, there was no oil or gas development in Bear Lake County, Idaho. There was no evidence that leases were being made for oil or gas in Bear Lake County. The only activity was in phosphate lands. Doubtless the oil and gas was not thought of by any of the parties when the deeds were effected.
10. By viewing the four corners of the instruments by which Bear Lake Phosphate conveyed both parcels in 1922, there is no ambiguity in the language of the deeds. Although Bear Lake Phosphate conveyed only the surface rights, the specific reservation out of the grant indicates that only mineral rights in phosphate were reserved.
11. Even if the grant of the surface and the reservation of a particular mineral raises some ambiguity as to the ownership of the remainder of the minerals, the intent of Bear Lake Phosphate in conveying the parcels was to reserve only the rights to the phosphate deposits contained on and under the surface of the ground.
CONCLUSIONS OF LAW
2. Under Idaho Code § 55-604, a conveyance will be presumed to pass a fee simple estate. The same reasoning applies to severance of a portion of the estate itself; severance of minerals from the surface is not favored by the law, and a conveyance should be construed against the splitting of the mineral rights from the surface unless the intent to sever is clear.
3. A specific reservation of a particular mineral results only in the severance of that mineral from the estate, and all *934other minerals pass with the surface rights.
4.“In our judgment the term is ambiguous. And so, too, we think the term ‘surface’ does not have a well-defined legal meaning when used as the subject of conveyance, but its meaning may be limited and defined by the exception or reservation in the deed. If the deed grants the ‘surface’ but contains a reservation of all the mines and minerals, the grant includes all the land except the reservation; but, on the other hand, if it grants the ‘surface’ but contains a reservation of a specified mineral or minerals, then the grant includes all the land except the mineral or minerals specified.” 31 A.L.R. 1521-1522.
“We repeat that where the term ‘surface’ is used as the subject of a grant, the grantor and the grantee have in mind a severance of the land into two parts, and while if but one part be designated, to wit, the surface, the grant may include all the land except the minerals, though that does not necessarily follow; but if the other be also expressed by reservation or exception, it appears to us that this clearly shows the intention of the parties; and the exception or reservation, as in the instant case, controls, limits, and defines the subject of the grant. 31 A.L.R. 1522
“In other words, should not the maxim, ‘the expression of one thing is the exclusion of another,’ apply? 31 A.L.R. 1519-1520
“... where the conveyance of the ‘surface’ is followed by an express reservation, we think the effect of the reservation is to limit it to those things which are so expressed.” 31 A.L.R. 1520 “And so in this case, we hold that the express exception of the oil and gas excludes all other exceptions. We are not unaware of the contention made that the coal did not pass by the term ‘surface’ as used in the Lemley deed; but because it was not excepted or reserved, and the oil and gas were, we think all mineral passed but those expressly retained; hence the Lemleys got the coal.” 31 A.L.R. 1521 “Where the grant or reservation is of a particular mineral, specifically named, only that mineral will pass, and all other minerals will remain the property of the owner of the fee, and in accordance with the doctrine of ejusdem generis, where a grant or reservation is of certain specified mineral and all other minerals, the words “other minerals” include only minerals of the same kind, and do not include a substance which, although a “mineral” in the broad sense of the term, is not • similar to those mentioned, ... 58
C.J.S. 323
5. Under the holding of Osborne v. Holford, 40 Colo.App. 365, 575 P.2d 866 (1978), a conveyance of only the surface rights without an express specific reservation results in an implied reservation by the grantor of the mineral rights. If the surface is conveyed,however, with an accompanying clause which expressly reserves a specific mineral, only rights to the mineral names are retained by the grantor; all others pass to the grantee with the surface.
6. Any ambiguity in the deeds should be construed against the grantor, Bear Lake Phosphate Company, and in favor of Parkers’ predecessors. The term “surface” standing alone, might be interpreted as a non-conveyance of the minerals. On the other hand, a specific reservation of the phosphate rock would not reserve all other minerals. Since there is ambiguity in the terms, the word surface will be construed broadly to include all rights not included in the specific reservation by the Grantor.
7. The plaintiffs, Stucki et al, are entitled to ownership of the phosphate and phosphate rock deposits located on the property in question.
8. The defendant, Parkers, are entitled to the entire mineral interest on the property save the phosphate rights owned by the plaintiffs, and such rights shall be quieted in the Parkers against *935the plaintiffs and all other parties. Parkers are also the owners of the surface of the property in question.
I would affirm.
SHEPARD, J., concurs.