Thomas v. Markham & Brown, Inc., LR-71-C-234.

• Decision Date: 31 January 1973
• Docket Number: No. LR-71-C-234.,LR-71-C-234.
• Citation: 353 F. Supp. 498
• Parties: Rosa THOMAS et al., Plaintiffs, v. MARKHAM & BROWN, INC. and Missouri City Stone Company, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

353 F. Supp. 498

Rosa THOMAS et al., Plaintiffs, v. MARKHAM & BROWN, INC. and Missouri City Stone Company, Defendants.

No. LR-71-C-234.

United States District Court, E. D. Arkansas, W. D.

January 31, 1973.

Jeff Davis, Jr., Little Rock, Ark., for plaintiffs.

Leon B. Catlett, Little Rock, Ark., for defendants.

MEMORANDUM OPINION

HENLEY, Chief Judge.

This cause has been tried to the Court and submitted on the pleadings, discovery material, oral testimony, documentary evidence, and post-trial memorandum briefs. This memorandum opinion incorporates the Court's findings of fact and conclusions of law.

There is diversity of citizenship between the plaintiffs, on the one hand, and the defendants, on the other hand. While defendants' pleadings deny that the amount in controversy is in excess of $10,000, exclusive of interest and costs, that contention is not argued in defendants' brief, and the Court finds from the record before it that the jurisdictional amount requirement of 28 U.S. C.A., section 1332 is met. Hence, federal jurisdiction is established.

The case involves the construction of a mineral reservation appearing in a 1953 conveyance by plaintiffs of a tract of land in Pulaski County, Arkansas, to the defendants' predecessors in title. The land is located in the Fourche Mountain area of that County a few miles south of the City of Little Rock and near the Sweet Home community.

The conveyance was a warranty deed conveying eight acres of land in fee reserving to the grantors, however, "One/Fourth (¼) of all Oil, Gas and Mineral Rights in and to said lands." The specific question is whether that reservation extends to and affects stone deposits on and under the conveyed lands or a portion thereof. Since they acquired title, defendants have been quarrying and selling stone from the property, and have refused to account to plaintiffs for any part of the proceeds of such sales. Plaintiffs say that under the above quoted reservation they are the owners of an undivided one-fourth interest in the stone and are entitled to damages for the defendants' alleged conversion of the stone or the proceeds of sales thereof. The defendants deny that the reservation in the deed extends to the stone in question. The rights of the parties are governed, of course, by the substantive law of Arkansas.

The stone with which the Court is concerned is a form of granite and is referred to variously in the record. In 1890 the then Arkansas State Geologist, Dr. James C. Branner, named the stone "pulaskite" because of its occurrence in Pulaski County, and he described and discussed the stone, its properties, and uses in great detail in his annual report for that year. The Annual Report of the Geological Survey of Arkansas for 1890, Chapter IV, pp. 33 et seq. The stone consists principally of silicon dioxide and the oxides of iron and aluminum; other oxides also are present.

Pulaskite, to use Dr. Branner's name for it, has a variety of commercial uses. It is a valuable building material and has been incorporated into a number of buildings in Little Rock, including the Pulaski County Courthouse and St. Andrew's Cathedral. It is useful in road building, as railroad ballast, as a component of roofing material, and for other purposes including riprap work along rivers, which is the purpose for which defendants or their vendees are currently using it.

Pulaskite occurs all over the Fourche Mountain area and is a "common rock" of that area. The area also contains or has contained in the past substantial deposits of bauxite which is a highly valuable aluminum ore. In years past both bauxite and pulaskite have been extracted, the degree of extraction depending on demand for the materials and market conditions.

The position of plaintiffs is that pulaskite is a mineral, that it was considered as such in 1953 and prior years, and that their reservation extends to the deposit on or in the lands covered by their deed.

The defendants take two positions. They say, first, that pulaskite is not a "mineral" in the technical or scientific sense of the term and for that reason the reservation should not be construed to extend to the stone deposit. Alternatively, they contend that apart from any scientific characterization of pulaskite as a mineral or non-mineral, it was not generally considered to be a mineral in 1953, and that under ruling Arkansas cases to be mentioned in due course it does not fall within the terms of the reservation.

It appears from essentially undisputed expert testimony and from textbook definitions cited in defendants' brief that where a rock formation consists of a combination of several separate and distinct minerals, geologists and mineralogists distinguish between the constituent parts of the formation and the formation itself considered as a whole. They characterize the constituent parts of the rock as "minerals," and the rock itself as just a "rock" and not a "mineral." To put it simply, the silicon dioxide in pulaskite is a "mineral," but pulaskite itself is not.

The Court is neither qualified nor inclined to quarrel with that distinction as a matter of science or semantics, and it may well play a legitimate part or serve a useful purpose in the technical fields of geology and mineralogy. But the Court does not consider that it is particularly relevant in present context. The scope of a mineral reservation or grant in Arkansas depends ultimately on the intent of the parties, and legal scriveners and lay people buying and selling land and granting or reserving mineral rights do not ordinarily think in the technical terms employed by geologists or mining engineers. So, the first contention of the defendants will be rejected.

As to the second contention of the defendants,...