Hart v. Craig

August 25 2009

DA 08-0402

IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 283

THOMAS E. HART, JR. and KIMBERLY R. HART,

Plaintiffs and Appellants,

v.

JAY CRAIG and TWILA CRAIG,

Defendants and Appellees.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 07-0600
Honorable Susan P. Watters, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Mark L. Carman, Carman Law Office, PC, Billings, Montana

For Appellees:

Daniela E. Pavuk and Bruce F. Fain, Crowley Fleck, PLLP, Billings, Montana

Submitted on Briefs: April 29, 2009

Decided: August 25, 2009

Filed:

__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.

¶1 In 1988, members of the Craig family purchased the property in question from

members of the Hart family. The deed conveying the property contained the following

reservation:

EXCEPTING and RESERVING, however, unto the Sellers/Grantors and their
heirs and assigns forever, all of the coal, oil, gas, metals and other minerals
and mineral rights, whether metallic or non-metallic, lying in, under or upon
said lands, and including the perpetual right of ingress and egress to and from
said lands for the purposes of drilling, exploring, mining, producing and in
every way operating for such minerals and removing the same; and including
all rights in and to all leases and royalties therefor.

¶2 The Craig family conveyed the property to Jay Craig. The reserved mineral interest

has been conveyed to Thomas and Kimberly Hart as joint tenants. Subsequent to these

conveyances, the Craigs mined and sold sandstone from a quarry on the property. Harts

brought suit in the Thirteenth Judicial District, Yellowstone County, claiming that they had

reserved the sandstone pursuant to the mineral reservation, and praying for judgment that the

Craigs owed them the amount the Craigs had been paid for the sandstone. The Craigs

answered, claiming that sandstone was not a mineral reserved by the Harts. Both parties

moved for summary judgment. The District Court granted the Craigs’ motion, ruling that

sandstone had not been reserved in the deed. The Harts appeal.

¶3 We review a district court’s decision to grant summary judgment de novo. Libby

Placer Mining Co. v. Noranda Minerals Corp., 2008 MT 367, ¶ 25, 346 Mont. 436, 197 P.3d

924. The moving party must establish the absence of any genuine issues of material fact and

entitlement to judgment as a matter of law. Libby Placer Mining Co., ¶ 25; M. R. Civ. P. 56.
2
We review for correctness a district court’s conclusions of law. Libby Placer Mining Co.,

¶ 26.

¶4 The issue before the Court is whether the District Court erred in its conclusion that

sandstone is not a “mineral” that was reserved in the deed from the Harts to the Craigs.

¶5 In early 2006, the Craigs began to operate a pit to extract sandstone. The sandstone

was sold for rip-rap and landscaping. The sandstone mined is orthoquartzite in character and

tends to be somewhat harder than typical sandstone. It also tends to fracture into blocks.

Thus, it is suited for landscaping and rip-rap. However, this rock is not very special, nor is it

exceptionally rare and valuable. It does not have to be changed, refined, or processed to be

used commercially.

¶6 In this case, we are dealing with a general mineral reservation containing the word

“mineral” but not stating that sandstone is a mineral that is reserved. Thus, our task is to

analyze whether the sandstone in question falls within the category of “minerals” in the

reservation. In Farley v. Booth Bros. Land and Livestock Co., 270 Mont. 1, 890 P.2d 377

(1995), this Court addressed a not dissimilar mineral reservation to decide if scoria, or rock

which results from burning coal outcrops, was a reserved mineral. The Court applied the

reasoning from an often-cited 1949 decision of the Supreme Court of Texas to answer the

question:

In our opinion substances such as sand, gravel and limestone are not minerals
within the ordinary and natural meaning of the word unless they are rare and
exceptional in character or possess a peculiar property giving them special
value, as for example sand that is valuable for making glass and limestone of
such quality that it may profitably be manufactured into cement. Such
3
 substances, when they are useful only for building and road-making purposes,
are not regarded as minerals in the ordinary and generally accepted meaning of
the word.

Heinatz v. Allen, 217 S.W.2d 994, 997 (Tex. 1949) (cited in Farley, 270 Mont. at 6-7, 890

P.2d at 380; Holland v. Dolese Co., 540 P.2d 549, 550-51 (Okla. 1975)). Considering these

criteria, the Farley court held the use of scoria in constructing roads did not elevate it to the

status of rare and exceptional and thus a general mineral reservation did not apply to the

scoria. Farley, 270 Mont. at 5-8, 890 P.2d at 379-81.

¶7 The sandstone at issue in this case is not exceptionally rare and valuable. The

composition of the sandstone is not valuable for production purposes based upon a refining

process, such as limestone that is particularly appropriate for making cement or sand that is

particularly appropriate for making glass. Using sandstone for landscaping and rip-rap is

analogous to using ordinary rock for road making and building purposes. Sandstone is not

rare or exceptional simply because it can be sold commercially.

¶8 Considering the established facts of this case, the sandstone is not a mineral included

in the general reservation at issue. The District Court did not err in granting the Craigs’

motion for summary judgment.

¶9 Affirmed.

/S/ JOHN WARNER

We Concur:

/S/ JIM RICE
4
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON

5