COPELAND SAND & GRAVEL, INC., an Oregon corporation, Plaintiff-Respondent,
ESTATE OF ANGELINE DILLARD, aka Angeline Smith Dillard; JANE D. EVANS; and also all other persons or parties unknown claiming any right, title, lien or interest in the property described in the complaint herein, Defendants, and RICHARD SKIDMORE, Defendant-Appellant
Argued and Submitted, Gold Beach High School, Gold
Beach April 10, 2014.
Josephine County Circuit Court. 11CV0323. Pat Wolke, Judge.
Judgment for plaintiff reversed and remanded as to the declaration regarding the scope of the mineral rights reservation; otherwise affirmed.
Eric B. Mitton argued the cause for appellant. With him on the briefs was Hornecker, Cowling, Hassen & Heysell, L.L.P.
Clark E. Rasche argued the cause for respondent. With him on the brief were James R. Dole and Watkinson Laird Rubenstein Baldwin & Burgess, P.C.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.[*]
[267 Or.App. 793] FLYNN, J.
This case concerns a dispute over the scope of a mineral rights reservation contained in a warranty deed that was executed in 1954 in Josephine County, Oregon. Defendant Skidmore, current owner of the mineral rights reservation, appeals a judgment of the trial court declaring that his rights " do not include any rights to sand, gravel, or other rock or earth materials, in whatever form, used for construction purposes." Defendant does not challenge the trial court's conclusion that sand and gravel are excluded from his mineral rights reservation, but he contends that " mineral" must be interpreted to include " massive deposits of common rock, such as basalt rock," even if that rock is destined to be used for construction purposes. We conclude that the text of the disputed reservation is ambiguous, that there is no extrinsic evidence to resolve the ambiguity, and that maxims of construction require us to construe the ambiguity in favor of defendant. Accordingly, we reverse the part of the judgment declaring that the reservation of mineral rights does not include " rock * * * used for construction purposes," and remand for further proceedings consistent with this opinion.
On October 12, 1954, Angeline Dillard executed a warranty deed conveying roughly 120 acres to Sunny Valley Lumber Company, subject to a reservation of mineral rights. The reservation states:
" Excepting and reserving to grantor all minerals in, under and upon the premises with the usual rights and privileges of mining the same, grantor hereby reserving the exclusive right to mine and remove from said premises any and all minerals found therein, and to appropriate and use as her own, the proceeds ...