While many landowners, when asked to consider what their land consists of, would only think of the visible surface, this only encompasses one-third of their actual ownership. Through a concept known as cujus est solum, ejus est usque ad coelum et ad inferos (roughly, whoever owns the soil, owns all the way to the heavens and down to hell), ownership of the surface also gives ownership of the space below and above. While this doctrine has been impeded over time, most notably with the introduction of airplanes, it is still, in large part, intact.
Because of this doctrine, property owners are able to sell off portions of their land which still allow them to otherwise inhabit the surface, namely their mineral and airspace rights. Mineral rights have long been, and continue to be, a major concern for property owners, particularly where, as in Michigan, there is an abundance of oil and gas beneath the surface. But oil and gas are not the only things lurking beneath the surface.
In 2005, Jerry and Robert Severson sold their ranch to the Murray family, but retained for themselves two-thirds of “all right title and interest in and to all of the oil, gas, hydrocarbons, and minerals in, on and under, and that may be produced from the [Ranch],” meaning that while both had the rights to the minerals, two-thirds of any profits would belong to the Seversons. However, what was found in 2006 was neither oil, nor gas, but instead several of the rarest, and most valuable dinosaur fossils ever found, including the unique “Dueling Dinosaurs” fossil, as well as one of only twelve completely intact Tyrannosaurus Rex fossils ever found (learn more about the fossils HERE). The Murrays were able to sell several of the fossils, with the T-Rex alone being sold for “several million dollars,” and the Dueling Dinosaurs being appraised between seven and nine million dollars. The Seversons, however, disputed the Murrays’ ownership, stating that the fossils qualified as “minerals” and, per the terms of the sale, they were entitled to two-thirds of the proceeds of the sale. When the Murrays were unwilling to part with the disputed monies, the Seversons filed suit. What followed was a case of Jurassic proportions.
During the initial hearing at the United States District Court for the District of Montana, both the Murrays and the Seversons produced experts to testify as to the composition of the fossils. The Seversons’ expert testified that, while the bones of living vertebrates contain the mineral hydroxylapatite, during the fossilization process, that mineral would recrystallize into another mineral, francolite. Following tests on the fossils, the Seversons’ expert concluded that this recrystallization had occurred in these fossils, and because of this they qualified as “minerals.” Unsurprisingly, the Murray’s expert disagreed, stating that no recrystallization had occurred, and that the bones found in the soil were no different than a modern bison bone. The District Court, weighing both the scientific evidence, as well as what the District Court believed to be the definition of “mineral,” agreed with the Murrays.
The Seversons, disagreeing with the District Court’s decision, filed an appeal with the United States Court of Appeals for the Ninth Circuit, arguing that the plain definition of “minerals” included the fossils. In the Ninth Circuit, just as in Michigan, the Court noted that “words in a contract are interpreted ‘in their ordinary and popular sense unless the parties use the words in a technical sense or unless the parties give a special meaning to them by usage.” Here, to find the “plain meaning” of the word, the Court looked first to dictionary definitions of minerals, but found not only that dictionary definitions varied, but also that the interpretation of those definitions varied. While the Murrays argued that minerals only included items which were valuable because of their ability to be refined and used commercially, such as gold, diamonds, oil and gas, the Seversons argued that the fossils could also be used commercially, as evidenced by the Murray’s sale, and as such fell squarely within the Murray’s definition. The Court, after weighing each of these arguments, along with several arguments specifically focused on Montana law, decided that dinosaur fossils fell inside the definition of “mineral,” and ordered the District Court to enter an order conforming with such a decision (Read the full decision HERE)
While the Murrays may still appeal this decision to the Supreme Court, until such a time that they do so, and until the Supreme Court overrules the Ninth Circuit’s decision, the effect on landowners, both in Montana and around the country, is clear. Even though Ninth Circuit decisions are not binding upon cases in Michigan, as Michigan falls under the Sixth Circuit, as this is the only case which deals with fossils in the context of a mineral estate case, it would almost certainly be looked to for guidance. So, if you, or a friend, neighbor or family member, are looking to purchase or sell mineral rights, be sure to discuss whether or not fossils fall within the definition of “mineral,” so you don’t wake up with a pain in the neck big enough to bring down a brontosaurus.