Opinion No. Oag 30-80, (1980)

69 Op. Att'y Gen. 126

• Court: Wisconsin Attorney General Reports
• Decided: May 20, 1980
• Status: Published

Opinion

ROBERT C. BRUNNER, Secretary Department of Business Development

You have requested my opinion on the question of whether exploration and mining leases constitute an interest in land within the meaning of sec. 710.02, Stats.

In my opinion such leases do constitute an interest in land and are subject to the provisions of sec. 710.02, Stats.

Section 710.02, Stats., provides in part:

It shall be unlawful for any alien not a resident of this state, of some state or territory of the United States or of the District of Columbia, or for any corporation not created by or under the laws of the United States or of some state or territory thereof, to hereafter acquire, hold or own more than 640 acres of land in this state or any interest therein except such as may be acquired by devise, inheritance or in good faith in the collection of debts by due process of law.

It is recognized that the ownership of land comprises a bundle of rights in the land. For example, ownership in land includes such rights as possession, enjoyment, use, and profits. In sec.990.01 (18), Stats., land is defined in reference to the aggregate of interests in land. Specifically, sec. 990.01 (18), Stats., provides: "`Land' includes lands, tenements and hereditaments and all rights thereto and interests therein."

In Weber. v. Sunset Ridge, 269 Wis. 120, 68 N.W.2d 706 (1955), it was held that an "interest in land" comprehends every kind of claim to land which can form the basis of a property right.

Interests in lands are subject to conveyance. For example, the right to possession is an interest in land that is commonly conveyed by an instrument described as a lease. Possession for limited use is also commonly conveyed by an instrument which is often referred to as an easement. In these situations the owner of the land has conveyed some of the rights in the land and has retained some of the rights or interests in land.

In 14 Op. Att'y Gen. 263 (1925), this office was concerned with the question of whether one who deals in mining leases was required to be licensed as a real estate broker. The opinion concluded that mining leases did constitute an interest in land and, accordingly, one who deals in such leases must be a licensed real estate broker.

Generally, mining and exploration rights are recognized as interests in land. In 58 C.J.S. Mines and Minerals sec. 132 at 211, it is stated: "A mine or mining claiming is `land as that term is used in the law of property; hence a mine, as distinct from the surface is subject to the same rights of ownership, possession. and conveyance as other lands."

Wisconsin is in accord. In Chicago N.W. Transp. Co. v.Pedersen, 80 Wis.2d 566, 571, 259 N.W.2d 316 (1977), it was stated that mineral rights are an interest in land which may be created or transferred as any other estate in land.

Section 107.001, Stats., is consistent because it describes instruments granting exploration and mining rights as "leases" and generally refers to them as "conveyances."

Under sec. 706.01, Stats., leases are recognized as instruments which create and convey interests in land.

Section 706.01 (1), Stats., provides: "Subject to the exclusions in sub. (2), this chapter shall govern every transaction by which any interest in land is created, aliened, mortgaged, assigned or may be otherwise affected in law or in equity."

Section 706.01 (8), Stats., provides:

"Conveyance of mineral interests" means any transaction under sub. (1) entered into for the purpose of determining the presence, location, quality or quantity of metalliferous minerals or for the purpose of mining, developing or extracting metalliferous minerals, or both. Any transaction under sub. (1) entered into by a mining company is rebuttably presumed to be a conveyance of mineral interests.

Under secs. 107.001, 706.01 (1) and (8), Stats., it appears that any transaction involving the creation of exploration and mining rights constitutes the creation and transfer of interests in land.

The limitation on nonresident alien and corporate ownership of land or interests in land as set forth in sec. 710.02, Stats., is a limitation which encompasses exploration and mining leases, contracts, agreements, or any instrument purporting to create and convey such rights.

BCL:CAB