Cooper v. Anschutz Uranium Corp., s. 42584

• Decision Date: 15 September 1981
• Docket Number: Nos. 42584,42585,s. 42584
• Citation: 625 S.W.2d 165
• Parties: Donald G. COOPER, Plaintiff-Respondent, v. ANSCHUTZ URANIUM CORPORATION, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 165

625 S.W.2d 165

Donald G. COOPER, Plaintiff-Respondent, v. ANSCHUTZ URANIUM CORPORATION, Defendant-Appellant.

Nos. 42584, 42585.

Missouri Court of Appeals, Eastern District, Division Four.

Sept. 15, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 20, 1981.

C. Perry Bascom, Thomas C. Walsh, Gregory D. Willard, St. Louis, and Walter S. Drusch, Jr., Cape Girardeau, for defendant-appellant.

Robert M. Johnson, Patrick M. Ardis, Henry W. Jones, III, Memphis, Tenn. and Edward E. Calvin, Cape Girardeau, for plaintiff-respondent.

SATZ, Presiding Judge.

This is a consolidated appeal. Defendant, Anschutz Uranium Corporation, appealed from a summary judgment entered against it in a quiet title action and also appealed from an order in another action permanently enjoining it from entering onto the parcel of land which was the subject of the quiet title action. The appeals were consolidated because the actions below were centered on the same basic issue. In this consolidated appeal, we reverse and remand the separate judgments of the trial court.

The dispute here is over the ownership of piles of slag, tailings, soil samples and borings located on the subject parcel. Both plaintiff, Donald Cooper, and defendant, Anschutz Uranium Corporation, trace their ownership to the same original grantor, the Missouri Cobalt Company (MCC). In 1952, MCC owned the subject parcel in fee. In April 1952, MCC conveyed the "surface rights only" in the parcel to National Lead Company (National Lead) and specifically excepted from this conveyance the "stockpiles of mineral products now lying on the surface of the ... described real estate." This conveyance commenced plaintiff's chain of title. National Lead then conveyed the rights it had obtained to the United States Government. This conveyance again specifically excepted the "stockpiles." In 1961, the U.S. Government quitclaimed its interest to Perry Equipment Corporation and Perry's successor transferred "the surface rights only" to plaintiff. To plaintiff, the phrase "stockpiles of mineral products", as used in the 1952 deed, did not encompass the piles of material in issue; rather, plaintiff concluded these materials were not retained by MCC and were effectively transferred to plaintiff's predecessor in title and ultimately to plaintiff by the transfer of the "surface rights" in the 1952 deed and the deeds which followed.

From a different series of deeds, defendant reached the opposite conclusion. Defendant concluded the stockpiles retained by MCC did include the piles of material in issue and, therefore, plaintiff could not have received proper title to these materials. Defendant laid claim to the stockpiles through a chain of title traced to MCC, the same source as plaintiff's claim. In 1957, MCC conveyed to National Lead the stockpiles previously excepted from its 1952 deed along with all underground and mineral rights to the subject parcel. ¹ This commenced defendant's chain of title. Through several subsequent deeds, this interest was conveyed to the Nedlog Development Co., along with the explicit "right, title and interest, if any, of Grantors in and to all mine tailings, mine and smelter wastes, smelter slag and other industrial waste deposits ...." ² Nedlog then conveyed its interest in the property to defendant. This conveyance included "(a)ll mineral rights and rights of ingress, egress and regress" as well as "all mine tailings, mill and smelter wastes, smelter slag and other industrial waste deposits ... situated on the above tracts of land ...."

Based upon his interpretation of the interest conveyed by the various deeds, plaintiff initiated his quiet title action seeking a declaration of his fee ownership to the surface rights and the piles of material in question. Defendant answered and, by counterclaim, sought a declaration of its ownership to the materials in issue. Plaintiff's motion for summary judgment followed and, based upon the noted deeds as well as affidavits and correspondence, the trial court entered a summary judgment for plaintiff and dismissed defendant's counterclaim. In a companion suit, in which plaintiff had asserted the same property interest he had asserted in the quiet title action, the court permanently enjoined defendant from "trespassing and entering upon" the subject parcel.

Defendant first attacks the summary judgment. Defendant contends judgment should have been entered for it rather than for plaintiff because, as a matter of law, the record reveals the piles of material in issue were part of the mineral rights conveyed to defendant. Alternatively, defendant contends there were genuine issues of material fact, making summary judgment inappropriate. We disagree with defendant's first contention and agree with its second.

The resolution of this dispute turns on the meaning of the phrase used by MCC in commencing each party's chain of title: "stockpiles of mineral products now lying on the surface of the ... described real estate." The meaning of this phrase is determined from the intent of MCC. See Julius v. Buckner, 452 S.W.2d 139, 141 (Mo.1970). In its conveyance to plaintiff's predecessor in title, MCC excepted the "stockpiles of mineral products ...." If MCC did not intend the phrase to encompass the piles of material in question, the material was not excepted from the 1952 conveyance and, ultimately, the material was conveyed to plaintiff as part of the surface rights. If, on the other hand, MCC did intend the phrase to encompass the piles of material, the material was specifically excepted from the surface rights ultimately obtained by plaintiff and plaintiff has no claim to the material.

The intent of a grantor, like MCC, is a fact. It may be determined from the deed itself if the language of the deed is unambiguous. See Wolf v. Miravalle, 372 S.W.2d 28, 34 (Mo.1963). In these instances, summary judgment may be appropriate, for the court simply resolves the issue of fact-intent-from unambiguous language. Adzick v. Chulick, 512 S.W.2d 194, 197 (Mo.App.1974); Renois v. DiFranco, 512 S.W.2d 411, 413 (Mo.App.1974). However, where the language of the deed is ambiguous, the propriety of a summary judgment is questionable. National Merchandising Corp. v. McAlpin, 440 S.W.2d 489, 494 (Mo.App.1969). In these instances, the grantor's intent must be established by extrinsic evidence, see, e.g., Cure v. City of Jefferson, 380 S.W.2d 305, 311 (Mo.1964) and, in a summary judgment proceeding, extrinsic evidence rarely provides the unassailable proof essential to resolve the factual issue of intent. Rule 74.04(h); See National Merchandising Corp. v. McAlpin, supra, at 494. The present case is not one of those rare instances. The grantor's intent was not established by unassailable proof.

Although both parties argue the phrase in question is unambiguous, each party derives from that phrase an intent of the grantor opposite to the intent derived by the other party. To construct these opposing derivations of intent, both parties use logic almost solely supported by evidence extrinsic to the deed containing the phrase in question.

Plaintiff argues the phrase "stockpiles of mineral products ..." had a precise and explicit meaning to MCC, the original/common grantor. According to plaintiff, MCC carefully chose this phrase because, to MCC, the phrase did not include the piles of material in question. Plaintiff bases his argument on MCC's use of similar language in a lease entered into between MCC and St. Louis Smelting Co. In 1942, MCC leased the parcel in question for 10 years to St. Louis Smelting Co. for prospecting and for mining ore. In the lease, MCC retained the rights to all "stockpiles" it had placed on the parcel. St. Louis Smelting received the rights to that surface which would be necessary for "stock-piles, dumps, ditches, dam, ponds, drains, roads, tailings ...", provided that "tailings, sands, rock and other residue resulting" from the operation and left on the land became the property of MCC. In addition, the lease provided that "(s)tockpiles of concentrates unsold at the termination" of the lease would belong in part to St. Louis Smelting and in part to MCC.

From MCC's separate use of the words stockpile and tailings in the lease, plaintiff reasons that MCC clearly recognized and explicitly made a distinction in the lease between "stockpiles" and "trashpiles." According to plaintiff, the terms "stockpiles" and "trashpiles", as used in the lease, defined mutually exclusive kinds of material. "Stockpiles" included "processed" material-the "processed" ore concentrate referred to in the lease and the unspecified stockpiles retained by MCC in the lease; the latter, according to plaintiff, existed at the beginning of the lease and consisted of metal castings, cathodes, anodes and other similar products. "Trashpiles" were piles of tailings and slag. Thus, according to plaintiff, these mutually exclusive categories had been defined by the terminology of the lease when MCC executed its 1952 deed to National Lead. Plaintiff then argues MCC used the same basic terminology in the deed that it had used in the lease and, thus, the terminology in the deed had the same meaning the terminology had in the lease. In the deed, MCC retained the rights to the "stockpiles of mineral products now lying on the surface." By using the definition of "stockpiles" established in the lease, plaintiff finds MCC intended to retain only the piles of metal castings, cathodes and anodes or piles of ore concentrate and did not intend to retain the piles of slag and tailings. The piles of slag and tailings, therefore, were conveyed to National Lead, plaintiff's predecessor in title, and ultimately to plaintiff as a part of the surface rights to the land.

Plaintiff's carefully constructed argument has surface appeal. It has, however, defects fatal to this summary judgment proceeding. Plaintiff limits the definition of "stockpiles of...