Whittle v. Wolff

437 P.2d 114, 249 Or. 217, 1968 Ore. LEXIS 634

Opinions

O’CONNELL, J.

Plaintiff seeks to recover damages resulting from the removal of sand and gravel by defendant from land in which plaintiff claims an interest. Defendant appeals from a judgment for plaintiff.

Plaintiff is the guardian of Clifford Wilson, a member of the Klamath Indian Tribe, who was an “enrollee” of a parcel of Indian land. The United States, through the Bureau of Indian Affairs, conveyed the parcel to defendant by a deed containing the following reservation:

“All subsurface rights, except water, are hereby reserved in trust, for * * * Clifford Edgar Wilson * * *.”

Footnotes

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①

The reservation was inserted in the deed pursuant to the Klamath Termination Act which, after provide ing generally for the removal of restrictions on allotted lands, contained the following provisions:

“Provided, That the provisions of this subsection shall not apply to subsurface rights in such lands, and the Secretary is directed to transfer such subsurface rights to one or more trustees designated by him for management for a period not less than ten years.” Act of Angnst 13, 1954, Pub. L. No. 83-587, § 8(b), 68 Stat 718.

Defendant removed sand and gravel from the land and plaintiff filed the present action.

The only issue deserving review is the construction of the reservation in the deed. The trial court held that the reservation of “subsurface rights” was broad enough to include sand and gravel.②

The term “subsurface rights” has no fixed meaning. We may assume that the draftsman of the deed in question adopted the term from the statutes relating to rights of the Klamath Indians in lands conveyed on their behalf. It appears from the Congressional committee reports that the term “subsurface rights” was used in the statutes to describe mineral rights.③

Therefore, we shall construe the language in the deed as a reservation of mineral rights.

The question is whether the reservation of “subsurface rights” or its equivalent, a reservation of mineral rights, embraces sand and gravel.

It has frequently been observed that the term “minerals” is not subject to exact definition and that it has a variety of meanings, dependent upon the circumstances in which it is used.④ In some contexts sand and gravel are treated as minerals. Thus this court held in Loney v. Scott, 57 Or 378, 112 P 172, 32 LRA(NS) 466 (1910) that building sand was a mineral within the meaning of the United States mining statutes providing that “placer” claims were subject to entry. Similarly, gravel has been held to be a mineral for the purposes of classifying public lands subject to location and purchase under the mining laws.⑤

The foregoing cases are not helpful to us in construing the language of the deed in question. Sand and gravel may be classified as minerals or subsurface rights in the public land cases for reasons which have no relevance in determining whether such materials should be regarded as minerals in the interpretation of the language of a deed dividing the surface and subsurface interests between the grantor and grantee.⑥

Although the laws relating to rights in Indian lands reflect a considerable solicitude for the tribe and its members, we have found nothing in any of the legislation, administrative rulings, or cases from which it could be argued that reservations in conveyances of Indian lands should be interpreted any more favorably to the grantor than reservations in conveyances of other lands.

The scope of a reservation in a deed is to be arrived at by determining the “judicially ascertained intent” of the grantor.⑦ If the evidence does not disclose the grantor’s intent, the deed is to be construed to conform to “the intent commonly prevalent among conveyors similarly situated.”⑧

Proceeding upon this principle of construction, it has been held in numerous cases that the term “minerals” as commonly used in ordinary trading transactions does not include sand, gravel, clay and similar earth materials. Salzseider v. Brunsdale, 94 NW2d 502, 504 (N.D. 1959) is a representative case expressing this view. In that case the court said:

“* * * [A] reservation of. .‘minerals’ eon tained in a grant of agricultural lands does not, in the ordinary or commonly understood meaning of the word ‘minerals’ when so used, include gravel.”

To the same effect is Psencik v. Wessels, 205 SW2d 658, 661-62 (Tex Civ App 1947), where the court said:

* * [I]n the common vernacular of those dealing in farm lands and mineral rights the term ‘minerals’ does not include ordinary commercial gravel. It may as well he held to include fertile top soil, which, under conditions arising subsequently to the grant, should become commercially valuable for replenshing lawns in an adjacent city, or other soil for filling lots or building road.”⑨

Other reasons have been advanced for excluding sand and gravel from the mineral category in construing transfers and reservations of interests in land. Thus it has been reasoned that although an earth material is a mineral according to the definitions of science, the fact that the deposits are generally a part of the soil or near the surface warrants its consideration as a part of the surface rather than as part of the mineral estate.⑩ Since sand and gravel are normally “so closely related to the soil, so nearly a part of the very surface, the soil itself, * * * [they are] reasonably and ordinarily considered a part of the soil and as belonging to the surface estate rather than as a part of the minerals or mineral rights” by the par ties to a transfer of interests in land. Heinatz v. Allen, snpra note 10 at 997.⑪

The close relation of sand and gravel to the surface is the basis for another reason advanced by some courts. The point has been made that the removal of sand or gravel from the land normally results in the removal of the surface soil and that the “destruction of agricultural land is sufficient reason for holding that the word ‘mineral’ used in a reservation of conveyance does not include gravel.”⑫

In the present case the evidence shows that the gravel which had been removed was located under topsoil varying in thickness from six inches to two feet. Some of the gravel was removed from pits dug to a depth of four and one-half to seven feet and comprising in lateral area three and one-half acres. The total area of the land conveyed was 140 acres. The evidence does not disclose the extent to which gravel lay under other parts of the parcel. The photographs introduced into evidence show the destructive effect which the removal of the gravel had upon the surface of the land. The excavation of gravel from other parts of the land would almost certainly have the same destructive effect.

If we were to hold in this case that the right to extract sand and gravel was reserved to the grantor, we would have to assume that those who purchasé land subject to a mineral reservation do so in contemplation of the possible destruction of their interest in the event that gravel lies under the surface of the land conveyed. We do not believe that parties to land transactions in this state normally have this understanding of the effect of a mineral reservation. We hold that the right to the sand and gravel in the land conveyed to defendant passed by the deed and that plaintiff has no right to recover for their removal.

The judgment of the trial court is reversed.

Under the Klamath Termination Act (§8(c) of Public Law 587) the Secretary of the Interior, upon the request of the owner of allotted Indian lands, could sell the land on behalf of the owner.