v. Ferrari Energy, Inc

2020 COA 113

• Court: Colorado Court of Appeals
• Decided: July 23, 2020
• Docket: 18CA1844, Moeller
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY July 23, 2020

2020COA113

No. 18CA1844, Moeller v. Ferrari Energy, Inc. — Real Property — Conveyances — Mineral Estates Plaintiffs initiated this action seeking to quiet title in a mineral

interest that was the subject of duplicative lease agreements. The

dispute originates in a warranty deed conveying a parcel of land but

reserving an undivided one-half interest in the mineral estate. The

interpretative challenge arises from the fact that one-half of the

estate had already been accounted for in a prior reservation. A

division of the court of appeals concludes that in light of the prior

reservation, the warranty deed is ambiguous because it is

susceptible of two interpretations: (1) that the warranty deed

conveyed to the grantees the half of the mineral estate that had not

previously been reserved; or (2) that the warranty deed reserved

one-half of the mineral estate to the grantors, in addition to the previous reservation, leaving no portion of the mineral estate for the

grantees.

J. Grove, specially concurring, would hold that the deed, by its

plain language, unambiguously conveyed one-half of the mineral

estate to the grantees. COLORADO COURT OF APPEALS

Court of Appeals No. 18CA1844 Weld County District Court No. 17CV30252 Honorable Todd L. Taylor, Judge

Dana Moeller and Darrell Moeller,

Plaintiffs-Appellants and Cross-Appellees,

v.

Ferrari Energy, LLC, a Colorado limited liability company,

Defendant-Appellee and Cross-Appellant,

and

Susie Velasquez, as Public Trustee of Weld County,

Defendant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE HARRIS Román, J., concurs Grove, J., specially concurs

Announced July 23, 2020

Witwer, Oldenburg, Barry & Groom, LLP, Kent A. Naughton, Greeley, Colorado, for Plaintiffs-Appellants and Cross-Appellees

Moye White LLP, Charles Greenhouse, Eric B. Liebman, Abigail L. Brown, Denver, Colorado, for Defendant-Appellee and Cross-Appellant Ferrari Energy, LLC

Bruce Barker, County Attorney, Greeley, Colorado, for Defendant-Appellee Susie Velasquez, in her official capacity as Public Trustee of Weld County ¶1 Plaintiffs, Dana and Darrell Moeller, and defendant, Ferrari

Energy, LLC,1 both assert that they are the owners of minerals

located on property in Weld County, Colorado. The dispute arises

from the relevant deed’s language reserving a “1/2 interest” in the

minerals to the grantors. That language would not ordinarily

present an interpretive challenge, but a predecessor grantor had

already reserved a one-half interest in the minerals, so the grantors

who conveyed the property to the Moellers’ predecessors-in-interest

owned only a one-half interest to begin with.

¶2 The district court concluded that the warranty deed

unambiguously reserved to the grantors, who are Ferrari’s

predecessors-in-interest, a one-half interest in the minerals. And

because the grantors only owned a one-half interest, there was no

remaining interest to convey, and the Moellers ultimately received

no interest in the minerals. Accordingly, the district court quieted

title in the mineral interest in Ferrari.

1 Susie Velasquez, in her official capacity as Public Trustee of Weld County, entered an appearance in the court of appeals but did not file a brief.

1 ¶3 On appeal, the Moellers contend that the district court

misconstrued the warranty deed and therefore erred in entering

judgment for Ferrari.

¶4 We conclude that the warranty deed is ambiguous. In our

view, the language reserving to the grantors a one-half interest in

the mineral estate is susceptible of two reasonable interpretations:

(1) the grantors reserved a total one-half interest in the minerals

and conveyed the other half to the Moellers’ predecessors-in-

interest; or (2) the grantors reserved a one-half interest in the

minerals for themselves, in addition to the prior grantor’s one-half

interest, and thereby conveyed no interest in the minerals to the

Moellers. These two interpretations remain equally plausible even

after taking into account the limited extrinsic evidence of the

parties’ intent. We therefore resolve the ambiguity by applying the

longstanding rule of construction that ambiguities in a deed are

construed in favor of the grantee. See Clevenger v. Cont’l Oil Co.,

149 Colo. 417, 421, 369 P.2d 550, 552 (1962). Accordingly, we

conclude that the warranty deed reserved a total of a one-half

interest and granted a one-half interest to the Moellers.

2 ¶5 We therefore reverse the district court’s decree in quiet title

and remand for entry of judgment in favor of the Moellers. In light

of our disposition, we need not address the parties’ other claims of

error.

I. Background

A. The Relevant Conveyances and Leases

¶6 In 1954, Russell and Velma Burns conveyed to Ruth Todd the

real property now owned by the Moellers, but expressly reserved

“one-half of all oil, gas and minerals on and under said land” (the

Burns reservation). Six years later, Todd conveyed the property to

Glenn and Sally Wilson, subject only to the Burns reservation.

¶7 Then, in 1964 the Wilsons, who now owned the one-half

mineral interest not reserved by the Burnses, sold the property to

Pete and Mary Katzdorn. The warranty deed (1964 Deed) conveyed

fee simple title to the real property “excepting and reserving to the

Grantors herein an undivided 1/2 interest in and to all the oil, gas

and minerals in, upon and under said land.”

¶8 The property was eventually conveyed to the Moellers, but the

operative reservation remained the one in the 1964 Deed.

3 ¶9 In 2002, the Moellers entered into a mineral lease agreement

with PDC Energy, Inc., and soon began receiving royalties. But in

2016, PDC learned that the Wilsons might own the mineral interest,

so it entered into a duplicative mineral lease agreement with the

Wilsons. The Wilsons later conveyed any interest they had in the

minerals to Ferrari and assigned to Ferrari the right to collect any

royalty payments owed to them by PDC.

B. Procedural History

¶ 10 The Moellers then filed this action, seeking to quiet title in the

mineral interest. Ferrari asserted its own claim to the minerals and

also sought royalty payments going back to 2002, from both the

Moellers and PDC, under a theory of unjust enrichment.

¶ 11 The district court addressed ownership of the minerals on a

motion for summary judgment. The court analyzed the conveyance

in two parts — first determining the scope of the reservation, then

determining the scope of the grant. In determining the scope of the

reservation in the 1964 Deed, the court declined to consider

extrinsic evidence of the Burns reservation. The court concluded

that the language “excepting and reserving to the Grantors . . . an

undivided 1/2 interest” unambiguously reserved to the Wilsons

4 their own one-half interest in the mineral estate, and thus extrinsic

evidence was inadmissible to interpret the phrase. Nonetheless, the

court then admitted the same extrinsic evidence to determine the

interest granted to the Katzdorns. The court reasoned that because

the Burnses had previously retained a one-half interest in the

mineral estate, the Wilsons’ reservation of their own one-half

interest meant they conveyed no portion of the mineral estate to the

Katzdorns. The court thus quieted title in the minerals, as a matter

of law, in Ferrari, the Wilsons’ successor-in-interest.

II. The District Court’s Decree in Quiet Title

¶ 12 The Moellers appeal the district court’s denial of PDC’s motion

for summary judgment and the resulting decree in quiet title.2

Specifically, the Moellers contend that the court erred in concluding

that the 1964 Deed unambiguously reserved a one-half mineral

interest to the Wilsons, conveying no portion of the mineral estate

to the Katzdorns.

2 Ferrari says that because PDC, not the Moellers, filed the motion for summary judgment, the Moellers may not challenge the district court’s summary judgment ruling. But that ruling formed the basis of the court’s decree in quiet title, which the Moellers may indisputably appeal.

5 A. Standard of Review and Principles of Interpretation

¶ 13 We review de novo the interpretation of a deed, as well as the

district court’s determination whether the deed is ambiguous.

Owens v. Tergeson, 2015 COA 164, ¶ 17.

¶ 14 Deeds are usually construed in accordance with the general

rules of construction of written instruments. Id. at ¶ 15. In

accordance with those rules, if a deed is unambiguous, its terms

must be enforced as written. Id. But if an ambiguity exists in the

deed’s reservation of mineral rights, the construction “must favor

the grantee.” Id.; see also Notch Mountain Corp. v. Elliott, 898 P.2d

550, 557 (Colo. 1995) (“[A]ny ambiguities in a reservation are

construed against the grantor.”); Clevenger, 149 Colo. at 421, 369

P.2d at 552.

¶ 15 In determining whether an ambiguity exists in the first

instance, we examine the instrument’s language, giving the words

employed their plain and generally accepted meaning. Meyerstein v.

City of Aspen, 282 P.3d 456, 468 (Colo. App. 2011). When the

instrument is a deed, however, we interpret the language “in light of

all the circumstances” surrounding the conveyance. Lazy Dog

Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235-36 (Colo. 1998)

6 (quoting Restatement (Third) of Prop.: Servitudes § 4.1 cmt. c. (Am.

Law Inst. 1994)). In other words, extrinsic evidence may be used to

determine, as a threshold matter, whether the deed is ambiguous.

Id. at 1236. If in light of extrinsic evidence the deed is

unambiguous, the extrinsic evidence should then be disregarded as

the court interprets the plain meaning of the deed. Id. If, however,

extrinsic evidence reveals the deed is ambiguous, then the court

may continue to use extrinsic evidence in discerning the parties’

intent. Id. When an ambiguity persists despite the consideration of

extrinsic evidence, the ambiguity is resolved in favor of the grantee.

Bell Petroleum Co. v. Cross V. Cattle Co., 492 P.2d 80, 81 (Colo. App.

1971) (not published pursuant to C.A.R. 35(f)).

B. Analysis

¶ 16 A conveyance of real property, which is generally defined and

designated in the deed’s granting clause, passes all title to the land

and the underlying mineral deposits, except those interests

explicitly held back. O’Brien v. Vill. Land Co., 794 P.2d 246, 249-51

(Colo. 1990).

¶ 17 The 1964 Deed conveyed the real property, together with its

appurtenances, “excepting and reserving to the Grantors herein an

7 undivided 1/2 interest in and to all the oil, gas and minerals in,

upon and under said land,” but without any reference to the Burns

reservation. The question is whether the 1964 Deed reserved a

total of a one-half interest in the minerals and thereby conveyed the

other one-half interest to the Katzdorns (in which case the Wilsons

retained no mineral interest), or whether it reserved to the Wilsons

a one-half interest along with the Burns reservation (in which case

the Moellers received no mineral interest).

¶ 18 The district court acknowledged that the extrinsic evidence of

prior conveyances created an ambiguity, but it declined to consider

that evidence in construing the reservation clause, having already

determined that the language was unambiguous as to what the

Wilsons retained. We decline to adopt that approach. Because

“circumstances surrounding the grant may be relevant to

interpreting the language of the grant,” we may consider the

extrinsic evidence of the Burns reservation in determining whether

the 1964 Deed is ambiguous in the first instance. Lazy Dog, 965

P.2d at 1236-37.

¶ 19 Terms in a deed are ambiguous when they are susceptible of

more than one reasonable interpretation. Owens, ¶ 16; see also

8 Bledsoe v. Hill, 747 P.2d 10, 12 (Colo. App. 1987) (“An ambiguity is

an uncertainty of the meaning of language used in a written

instrument.”). We conclude that in light of the Burns reservation,

which left the Wilsons with only a one-half interest in the minerals,

the language of the 1964 Deed is ambiguous.

¶ 20 On the one hand, 1964 Deed could reasonably be interpreted

to reserve a total of a one-half interest in the minerals, as the

Moellers contend.

¶ 21 This interpretation is consistent with supreme court precedent

concerning similar patterns of conveyances. In Brown v. Kirk, a

bank conveyed property to the plaintiffs through a deed that

“reserv[ed] unto the party of the first part, its successors and

assigns, an undivided one-fourth of all oil, gas, and other minerals.”

127 Colo. 453, 454, 257 P.2d 1045, 1045 (1953). The plaintiffs

then conveyed the property to the grantees, “excep[t] one half of all

oil, gas and mineral rights which parties of the first part reserve.”

Id. (alteration in original). The supreme court concluded that the

plaintiffs’ reservation clause — “one half of all oil, gas and mineral

rights” — referred to one-half of the entire mineral estate, including

the bank’s prior one-quarter reservation. See id. at 456-57, 257

9 P.2d at 1046-47. Therefore, the grantees received a one-half

mineral interest, leaving the plaintiffs with only the remaining

quarter-interest. Id.

¶ 22 The supreme court reached a similar conclusion when it

interpreted the deed language at issue in O’Brien v. Village Land Co.

In that case, the Ogren Estate conveyed to Village Land a piece of

property, “RESERVING an undivided one-half interest in and to all

oil, gas and other minerals.” O’Brien, 794 P.2d at 247. Through a

deed filed shortly thereafter on the same day, Village Land conveyed

the property to Henderson, also “RESERVING an undivided one-half

interest in and to all oil, gas and other minerals.” Id. Finding the

disputed conveyance analytically identical to the one at issue in

Brown, the supreme court held that the Village Land-Henderson

deed unambiguously reserved in total a one-half mineral interest,

and thus the deed conveyed the remaining one-half interest to

Henderson. Id. at 249-50, 252.

¶ 23 This interpretation also comports with the principle that a

deed conveys all interests associated with real property except those

explicitly reserved. 3 Am. Jur. 2d Deeds § 274, Westlaw (database

10 updated May 2020); see also 3 American Law of Mining § 82.01 (2d

ed. 2020).

¶ 24 But in our view, neither that interpretive principle nor the

precedent established by Brown and O’Brien compels a conclusion

that the 1964 Deed is unambiguous. Rather, the 1964 Deed could,

on the other hand, reasonably be interpreted to reserve a one-half

interest in the minerals to the Wilsons, in addition to the one-half

interest reserved by the Burnses.

¶ 25 That is true because we are bound, by equally well-settled

principles of construction, to give effect to each word in the deed.

See O’Brien, 794 P.2d at 249 (“[A] court must construe a deed so as

to give effect to all of its provisions[.]”). The specific reservation “to

the Grantors” suggests that the Wilsons intended to retain their

own one-half interest, independent of the prior reservation. After

all, the Burnses’ one-half interest could not be reserved to the

Wilsons. To read the 1964 Deed as reserving a total of a one-half

interest in the minerals would mean that the Wilsons reserved

nothing to themselves, rendering the phrase “to the Grantors”

meaningless. We avoid an interpretation of an agreement that

11 would nullify any of its terms or provisions. See Fed. Deposit Ins.

Corp. v. Fisher, 2013 CO 5, ¶ 12.

¶ 26 Given these two reasonable interpretations, the deed is

ambiguous. Bledsoe, 747 P.2d at 12.

¶ 27 Neither party has pointed us to any extrinsic evidence of the

parties’ intent, other than the Burns reservation — the same

evidence that gives rise to the ambiguity in the first place. In the

district court, Ferrari produced evidence that the Wilsons had

entered into lease agreements for the minerals in 1983 and 1986; it

argued that the Wilsons’ act of executing leases, and the failure of

the Moellers’ predecessors-in-interest to do the same, demonstrated

that the parties to the 1964 Deed believed that the Wilsons had

reserved for themselves an interest in the minerals.

¶ 28 True, courts may look to the subsequent conduct of parties to

a deed as an indication of their intent. 23 Am. Jur. 2d Deeds § 265,

Westlaw (database updated May 2020); see also Hall v. Nash, 81 P.

249, 251 (Colo. 1905); Town of Manitou v. Int’l Tr. Co., 30 Colo. 467,

475-79, 70 P. 757, 760-61 (1902). But here, both the Wilsons and

the Moellers entered into lease agreements at different times,

apparently with no objection from the other (or the other’s

12 predecessors-in-interest), and so the evidence suggests only that

both believed themselves to be the owners of the minerals,

presumably in reliance on the language of the 1964 Deed. In other

words, this extrinsic evidence does not help to resolve the

ambiguity. See McCormick v. Union Pac. Res. Co., 14 P.3d 346, 353

(Colo. 2000) (cautioning, in a discussion of whether a reservation

for “all minerals” included oil and gas, that decades-old extrinsic

evidence does not always shed “real light on the parties’ individual

intentions”). We therefore default to the rule that an ambiguous

deed is construed against the grantor. Bell Petroleum, 492 P.2d at

81; see also Notch Mountain, 898 P.2d at 557; Owens, ¶ 15.

¶ 29 Accordingly, we conclude that the district court erred in

quieting title in the mineral estate in Ferrari. See Bledsoe, 747 P.2d

at 12. The judgment is reversed, and the case is remanded with

directions for the court to enter judgment in favor of the Moellers on

their quiet title claim.

III. The Parties’ Other Claims of Error

¶ 30 In light of our disposition, we decline to address either the

Moellers’ additional argument that the court erred in precluding its

adverse possession defense, or Ferrari’s argument on cross-appeal

13 that the court erred in denying its unjust enrichment claim against

the Moellers.

IV. Conclusion

¶ 31 The decree in quiet title is reversed and the case is remanded

for further proceedings consistent with this opinion.

JUDGE ROMÁN concurs.

JUDGE GROVE specially concurs.

14 JUDGE GROVE, specially concurring.

¶ 32 I agree with the majority’s conclusion that any ambiguity in

the 1964 Deed should be construed in favor of the Moellers, as

successors-in-interest to the original grantees. But because, in my

view, the 1964 Deed unambiguously conveyed one-half of the

mineral estate to the grantees, I would reverse the district court’s

judgment on that ground alone.

¶ 33 In O’Brien v. Village Land Co., 794 P.2d 246 (Colo. 1990), and

Brown v. Kirk, 127 Colo. 453, 456, 257 P.2d 1045, 1046 (1953), the

supreme court construed deeds that, like this one, conveyed land

by general description while also reserving one-half of the minerals.

Although the grantors in both cases owned only one-half of the

mineral estates, they both argued that the reservation in the deeds

applied to the halves that they owned — meaning that they would

keep those minerals and transfer only the surface estates to the

respective grantees.1 The supreme court disagreed in both cases,

1 In both cases, as in this one, the dispute only extended to the fraction of the minerals that the grantor owned at the time of the conveyance. Ownership of minerals previously reserved by others in the chain of title was unaffected by any subsequent disagreement over the remainder of the subsurface estate.

15 holding in O’Brien that where “the face of the . . . deed purported to

convey all mineral interests except the one-half expressly reserved

by the terms of the deed, [the] grantor conveyed and warranted title

to one-half of the mineral interests” in the entire parcel. 794 P.2d

at 251.

¶ 34 As a general rule, “a conveyance of land by general

description, without any reservation of a mineral interest, passes

title to both the land and the underlying mineral deposits.” Id. at

249. Mineral interests may of course be excluded from a

conveyance, but interpretive questions can arise in cases where a

deed’s grantor owns less than he ostensibly conveys. Colorado is

one of a number of states that resolves any such questions by

looking exclusively to the four corners of the deed and giving

dispositive weight to the expectations that the grantee would have

had based on the language of the deed alone.

¶ 35 The Texas Supreme Court considered the interpretive

difficulties created by fractional conveyances from partial owners of

the mineral estate in Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d

878, 880-81 (Tex. 1940). Its influential opinion established the

“Duhig rule,” which relies on principles of estoppel by deed to

16 prevent a grantor who has conveyed property by warranty deed

from disputing the title that he has warranted.

The effect of Duhig is that a grantor cannot grant and reserve the same mineral interest, and if a grantor does not own a large enough mineral interest to satisfy both the grant and the reservation, the grant must be satisfied first because the obligation incurred by the grant is superior to the reservation.

Acoma Oil Corp. v. Wilson, 471 N.W.2d 476, 480 (N.D. 1991).

¶ 36 The Colorado Supreme Court has declined to adopt Duhig’s

estoppel-by-deed theory, noting that it “has been criticized as

contrived.” O’Brien, 794 P.2d at 251 n.3 (“We do not employ the

Duhig analysis in this case and instead reach our result by giving

effect to the unambiguous and unequivocal terms of the . . . deed.”).

Yet, on similar facts, O’Brien and Brown reached the same result as

Duhig by conducting a simple one-step analysis that looked to the

four corners of the deed alone to determine the scope of the

conveyance. That approach was consistent with the author judge’s

preferred reasoning2 in Duhig, which concluded that “the intention

2Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d 878 (Tex. 1940), was unusual in that the author judge essentially specially concurred by explaining his own distinct reasons for affirming the

17 of the parties to the deed was to invest the grantee with title to the

surface and a one-half interest in the minerals,” while withdrawing

via the reservation clause the half that the grantor did not own.

144 S.W.2d at 879; see also Patrick H. Martin & Bruce D. Kramer,

Williams and Meyers, Oil and Gas Law § 311 (2014). The

reservations in all three cases — O’Brien, Brown, and Duhig — did

not apply to the half that the grantor did own because otherwise the

grantee would not receive the partial undivided interest in mineral

estate that the deed purported to convey. See Appling v. Fed. Land

Bank of Wichita, 816 P.2d 297, 301 (Colo. App. 1991).

¶ 37 Here, the district court found significant the fact that the 1964

Deed’s reservation was “to the grantors herein” — language it

determined “explicitly reserve[d] one-half of the mineral estate in

the [grantors].” This reservation, it noted, contrasted with previous

cases that reserved minerals without specifying who would own

them after the sale was complete. See O’Brien, 794 P.2d at 247

(conveying real estate by general description while “RESERVING an

undivided one-half interest in and to all oil, gas and other

trial court’s judgment before revealing that the court had adopted the estoppel-by-deed approach.

18 minerals . . .”); Brown, 127 Colo. at 454, 257 P.2d at 1045

(conveying real estate by general description “except one half of all

oil, gas and mineral rights which party of the first part reserves”).

As the district court viewed it, the less specific language in these

reservations allowed the O’Brien and Brown courts to conclude that

the grantors “conveyed one-half of the mineral estate to the

grantees without doing violence to the plain language in the deeds.”

But at the same time, the district court found that the more specific

reservation in the 1964 Deed — “to the grantors herein” —

precluded a similar result in this case.3

¶ 38 In my view, the district court erred by allowing what it

concluded was the grantors’ intent to override the grantees’

expectation based on the plain language of the deed. Based on that

plain language, the grantees would have reasonably concluded that

3 It is worth noting that the attempted reservation in Duhig included language every bit as specific as the 1964 Deed: “But it is expressly agreed and stipulated that the grantor herein retains an undivided one-half interest in and to all mineral rights or minerals of whatever description in the land.” Duhig, 144 S.W.2d at 879. This reservation, the author judge would have held, did “not clearly and plainly disclose the intention of the parties that there be reserved to the grantor Duhig an undivided one-half interest in the minerals in addition to that previously reserved[.]” Id.

19 they were acquiring everything that the deed did not specifically

reserve — including one-half of the mineral estate. The 1964 Deed,

after all, conveyed the property by general description (reserving

one-half of the minerals), and its habendum clause not only

represented that the grantors were “well seized of the premises

above conveyed,” but also that those premises were “free and clear

from all former and other grants, bargains, sales, liens, taxes,

assessments and incumbrances of whatever kind or nature soever,

except taxes for the year 1964.” See Owens v. Tergeson, 2015 COA

164 (construing deed as a whole, including both granting and

habendum clause, to determine grantor’s intent). Based on these

representations, and without going beyond the four corners of the

deed to evaluate the mineral estate’s chain of title, the grantees

could only have concluded that one-half of the mineral estate was

being reserved and the other one-half transferred to them. See

O’Brien, 794 P.2d at 251.

¶ 39 Nor does the deed’s reservation of half the mineral estate “to

the grantors” render the deed ambiguous. “[T]he fact that the

parties have different opinions about the interpretation of the deed

does not of itself create an ambiguity.” Hudgeons v. Tenneco Oil

20 Co., 796 P.2d 21, 22 (Colo. App. 1990). And because the grantor

assumes the risk of title failure, “[i]f both the grant and the

reservation cannot be given effect . . . the grant must prevail.”

Gilstrap v. June Eisele Warren Tr., 106 P.3d 858, 867 (Wyo. 2005);

see also Harlingen Irrigation Dist. Cameron Cty. No. 1 v. Caprock

Commc’ns Corp., 49 S.W.3d 520, 533 (Tex. App. 2001) (“When both

the granting clause and reservation clause cannot be given effect,

the granting clause prevails and the reservation clause fails.”).

¶ 40 In short, I would, consistent with O’Brien and Brown, hold

that, whatever the grantors may have been attempting to do by

adding a reservation clause to the 1964 Deed, they could not

reserve any more of the mineral estate than what they already

owned. Thus, the 1964 Deed unambiguously conveyed one-half of

the mineral estate to the grantees, the Moellers’ successors-in-

interest, and left the grantors with nothing. Accordingly, while I

concur with the majority’s holding, I would reverse the judgment of

the district court based on the plain language of the 1964 Deed

alone.