Uranium - Mineral Or Surface? Who Owns It?

Forty years ago the atom was split and the Age of Fission dawned. Uranium was the element used in this earth-shaking accomplishment. Thitherto almost unknown to the man in the street, uranium soon became widely and persistently sought. And the quest for this unique material is not likely to diminish during this century. To find is one thing; to own is another. Who owns uranium in the ground? Where no mineral rights in the land have been severed by devise, grant, reservation or lease, the uranium belongs to the fee simple owner of the land. But where there has been a conveyance or reservation of all or part of the "minerals", determining WHAT a substance is has been the traditional way of determining WHO owns it. What, then, is this element called uranium? The 1907 edition of Watts Dictionary of Chemistry calls it "a lustrous, hard, silver-white metal". Of nature's three prime divisions it falls within the embrace of the mineral kingdom - substances neither animal nor vegetable. In its natural state uranium always is combined with other elements or substances in the form of an ore mineral. May we, then, put to rest any doubt or question as to the nature of uranium and classify it for all purposes, including that of ownership, as mineral? Not quite! That self-same logic would find oil and gas primly ensconced in the animal or vegetable kingdom. Technically, oil and gas are not minerals but legally they have been classified as such. Why? The Supreme Court of Tennessee sought the answer in 1897 in the case of Murray v. Allard, 43 S.W. 355. After citing authorities pro and con, and while admitting their origin to be "decomposition of marine or vegetable organises" that court firmly concluded that since they were obtained by a form of mining, oil and gas were minerals. From the above example two elementary truths emerge. First, for purposes of ownership, uranium is and will be whatever the courts say it is. Secondly, the courts historically and currently favor a practical rather than technical test to determine the "mineral" character of a substance. So now we turn to the jurisprudence for enlightenment and definition. EARLY CASES ALLOT URANIUM TO MINERAL OWNERS Two early cases involving the ownership of uranium followed what had been well-settled mineral within the meaning of the conveyances involved, confirming ownership in the mineral owners. In 1956 the U. S. District Court for New Mexico in the case of New Mexico and Arizona Land Company v. Elkins, 137 F. Supp. 767, appeal dism'd 239 F.2d 645 (10th Cir. 1956), found that a 1946 deed reservation of "all oil, gas and minerals underlying or appurtenant to said lands" included uranium and thorium. The court reasoned that uranium and thorium, being minerals within the scientific, geological and practical meaning of the term, would certainly constitute minerals within the purview of the reservation. While agreeing that uranium and thorium were "minerals", defendants argued that at the tine of execution of the conveyance it could not have been the intention of the parties to reserve them because they had no commercial value in the locality and were, in fact, not known to there exist until their later discovery in 1950. The court re¬jected, as a matter of law, this "lack of knowledge" theory citing the Supreme Court of Kentucky holding in Maynard v. McHenry, 113 S.W. 2d 13, that: "The mere fact that a particular mineral has not been discovered in the vicinity of the land conveyed or is unknown at the time the deed is executed rules of construction and held that uranium was a does not alter the rule . . ." that a grant or exception of "mineral" in a deed includes all mineral substances which can be taken from the land unless restrictive language is used indicating that the parties contemplated something less general than all substances legally cognizable as minerals. Further, argued the defendants, the only feasible mining procedure for such substances was open pit or strip mining, which would destroy the value of the land for grazing or agriculture. Finding that the language of the reservation was clear and unambiguous, the court would not permit the admission of extrinsic evidence as to mining procedures required. Elkins is the first uranium case construing the granting clause involved. In 1958 the Texas Court of Civil Appeals at San Antonio, in Cain v. Neuman, 316 S.W. 2d 915, no writ, held that a 1918 lease conveying "all of the oil, gas, coal and other minerals in and under" the land involved covered uranium. The lease provided a royalty of 1/10th on "other minerals." "We find no Texas precedent which discusses uranium," said the court, "but the usual arguments that uranium is not embraced within a lease are that the ejusden generis rule excludes uranium from the meaning of the lease