v. Ferrari Energy, Inc , 2020 COA 113 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 23, 2020
2020COA113
No. 18CA1844, Moeller v. Ferrari Energy, Inc. — Real
Property — Conveyances — Mineral Estates
Plaintiffs initiated this action seeking to quiet title in a mineral
interest that was the subject of duplicative lease agreements. The
dispute originates in a warranty deed conveying a parcel of land but
reserving an undivided one-half interest in the mineral estate. The
interpretative challenge arises from the fact that one-half of the
estate had already been accounted for in a prior reservation. A
division of the court of appeals concludes that in light of the prior
reservation, the warranty deed is ambiguous because it is
susceptible of two interpretations: (1) that the warranty deed
conveyed to the grantees the half of the mineral estate that had not
previously been reserved; or (2) that the warranty deed reserved
one-half of the mineral estate to the grantors, in addition to the
previous reservation, leaving no portion of the mineral estate for the
grantees.
J. Grove, specially concurring, would hold that the deed, by its
plain language, unambiguously conveyed one-half of the mineral
estate to the grantees.
COLORADO COURT OF APPEALS
Court of Appeals No. 18CA1844
Weld County District Court No. 17CV30252
Honorable Todd L. Taylor, Judge
Dana Moeller and Darrell Moeller,
Plaintiffs-Appellants and Cross-Appellees,
v.
Ferrari Energy, LLC, a Colorado limited liability company,
Defendant-Appellee and Cross-Appellant,
and
Susie Velasquez, as Public Trustee of Weld County,
Defendant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE HARRIS
Román, J., concurs
Grove, J., specially concurs
Announced July 23, 2020
Witwer, Oldenburg, Barry & Groom, LLP, Kent A. Naughton, Greeley, Colorado,
for Plaintiffs-Appellants and Cross-Appellees
Moye White LLP, Charles Greenhouse, Eric B. Liebman, Abigail L. Brown,
Denver, Colorado, for Defendant-Appellee and Cross-Appellant Ferrari Energy,
LLC
Bruce Barker, County Attorney, Greeley, Colorado, for Defendant-Appellee
Susie Velasquez, in her official capacity as Public Trustee of Weld County
¶1 Plaintiffs, Dana and Darrell Moeller, and defendant, Ferrari
Energy, LLC,1 both assert that they are the owners of minerals
located on property in Weld County, Colorado. The dispute arises
from the relevant deed’s language reserving a “1/2 interest” in the
minerals to the grantors. That language would not ordinarily
present an interpretive challenge, but a predecessor grantor had
already reserved a one-half interest in the minerals, so the grantors
who conveyed the property to the Moellers’ predecessors-in-interest
owned only a one-half interest to begin with.
¶2 The district court concluded that the warranty deed
unambiguously reserved to the grantors, who are Ferrari’s
predecessors-in-interest, a one-half interest in the minerals. And
because the grantors only owned a one-half interest, there was no
remaining interest to convey, and the Moellers ultimately received
no interest in the minerals. Accordingly, the district court quieted
title in the mineral interest in Ferrari.
1 Susie Velasquez, in her official capacity as Public Trustee of Weld
County, entered an appearance in the court of appeals but did not
file a brief.
1
¶3 On appeal, the Moellers contend that the district court
misconstrued the warranty deed and therefore erred in entering
judgment for Ferrari.
¶4 We conclude that the warranty deed is ambiguous. In our
view, the language reserving to the grantors a one-half interest in
the mineral estate is susceptible of two reasonable interpretations:
(1) the grantors reserved a total one-half interest in the minerals
and conveyed the other half to the Moellers’ predecessors-in-
interest; or (2) the grantors reserved a one-half interest in the
minerals for themselves, in addition to the prior grantor’s one-half
interest, and thereby conveyed no interest in the minerals to the
Moellers. These two interpretations remain equally plausible even
after taking into account the limited extrinsic evidence of the
parties’ intent. We therefore resolve the ambiguity by applying the
longstanding rule of construction that ambiguities in a deed are
construed in favor of the grantee. See Clevenger v. Cont’l Oil Co.,
149 Colo. 417, 421, 369 P.2d 550, 552 (1962). Accordingly, we
conclude that the warranty deed reserved a total of a one-half
interest and granted a one-half interest to the Moellers.
2
¶5 We therefore reverse the district court’s decree in quiet title
and remand for entry of judgment in favor of the Moellers. In light
of our disposition, we need not address the parties’ other claims of
error.
I. Background
A. The Relevant Conveyances and Leases
¶6 In 1954, Russell and Velma Burns conveyed to Ruth Todd the
real property now owned by the Moellers, but expressly reserved
“one-half of all oil, gas and minerals on and under said land” (the
Burns reservation). Six years later, Todd conveyed the property to
Glenn and Sally Wilson, subject only to the Burns reservation.
¶7 Then, in 1964 the Wilsons, who now owned the one-half
mineral interest not reserved by the Burnses, sold the property to
Pete and Mary Katzdorn. The warranty deed (1964 Deed) conveyed
fee simple title to the real property “excepting and reserving to the
Grantors herein an undivided 1/2 interest in and to all the oil, gas
and minerals in, upon and under said land.”
¶8 The property was eventually conveyed to the Moellers, but the
operative reservation remained the one in the 1964 Deed.
3
¶9 In 2002, the Moellers entered into a mineral lease agreement
with PDC Energy, Inc., and soon began receiving royalties. But in
2016, PDC learned that the Wilsons might own the mineral interest,
so it entered into a duplicative mineral lease agreement with the
Wilsons. The Wilsons later conveyed any interest they had in the
minerals to Ferrari and assigned to Ferrari the right to collect any
royalty payments owed to them by PDC.
B. Procedural History
¶ 10 The Moellers then filed this action, seeking to quiet title in the
mineral interest. Ferrari asserted its own claim to the minerals and
also sought royalty payments going back to 2002, from both the
Moellers and PDC, under a theory of unjust enrichment.
¶ 11 The district court addressed ownership of the minerals on a
motion for summary judgment. The court analyzed the conveyance
in two parts — first determining the scope of the reservation, then
determining the scope of the grant. In determining the scope of the
reservation in the 1964 Deed, the court declined to consider
extrinsic evidence of the Burns reservation. The court concluded
that the language “excepting and reserving to the Grantors . . . an
undivided 1/2 interest” unambiguously reserved to the Wilsons
4
their own one-half interest in the mineral estate, and thus extrinsic
evidence was inadmissible to interpret the phrase. Nonetheless, the
court then admitted the same extrinsic evidence to determine the
interest granted to the Katzdorns. The court reasoned that because
the Burnses had previously retained a one-half interest in the
mineral estate, the Wilsons’ reservation of their own one-half
interest meant they conveyed no portion of the mineral estate to the
Katzdorns. The court thus quieted title in the minerals, as a matter
of law, in Ferrari, the Wilsons’ successor-in-interest.
II. The District Court’s Decree in Quiet Title
¶ 12 The Moellers appeal the district court’s denial of PDC’s motion
for summary judgment and the resulting decree in quiet title.2
Specifically, the Moellers contend that the court erred in concluding
that the 1964 Deed unambiguously reserved a one-half mineral
interest to the Wilsons, conveying no portion of the mineral estate
to the Katzdorns.
2 Ferrari says that because PDC, not the Moellers, filed the motion
for summary judgment, the Moellers may not challenge the district
court’s summary judgment ruling. But that ruling formed the basis
of the court’s decree in quiet title, which the Moellers may
indisputably appeal.
5
A. Standard of Review and Principles of Interpretation
¶ 13 We review de novo the interpretation of a deed, as well as the
district court’s determination whether the deed is ambiguous.
Owens v. Tergeson, 2015 COA 164, ¶ 17.
¶ 14 Deeds are usually construed in accordance with the general
rules of construction of written instruments. Id. at ¶ 15. In
accordance with those rules, if a deed is unambiguous, its terms
must be enforced as written. Id. But if an ambiguity exists in the
deed’s reservation of mineral rights, the construction “must favor
the grantee.” Id.; see also Notch Mountain Corp. v. Elliott, 898 P.2d
550, 557 (Colo. 1995) (“[A]ny ambiguities in a reservation are
construed against the grantor.”); Clevenger, 149 Colo. at 421, 369
P.2d at 552.
¶ 15 In determining whether an ambiguity exists in the first
instance, we examine the instrument’s language, giving the words
employed their plain and generally accepted meaning. Meyerstein v.
City of Aspen, 282 P.3d 456, 468 (Colo. App. 2011). When the
instrument is a deed, however, we interpret the language “in light of
all the circumstances” surrounding the conveyance. Lazy Dog
Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235-36 (Colo. 1998)
6
(quoting Restatement (Third) of Prop.: Servitudes § 4.1 cmt. c. (Am.
Law Inst. 1994)). In other words, extrinsic evidence may be used to
determine, as a threshold matter, whether the deed is ambiguous.
Id. at 1236. If in light of extrinsic evidence the deed is
unambiguous, the extrinsic evidence should then be disregarded as
the court interprets the plain meaning of the deed. Id. If, however,
extrinsic evidence reveals the deed is ambiguous, then the court
may continue to use extrinsic evidence in discerning the parties’
intent. Id. When an ambiguity persists despite the consideration of
extrinsic evidence, the ambiguity is resolved in favor of the grantee.
Bell Petroleum Co. v. Cross V. Cattle Co., 492 P.2d 80, 81 (Colo. App.
1971) (not published pursuant to C.A.R. 35(f)).
B. Analysis
¶ 16 A conveyance of real property, which is generally defined and
designated in the deed’s granting clause, passes all title to the land
and the underlying mineral deposits, except those interests
explicitly held back. O’Brien v. Vill. Land Co., 794 P.2d 246, 249-51
(Colo. 1990).
¶ 17 The 1964 Deed conveyed the real property, together with its
appurtenances, “excepting and reserving to the Grantors herein an
7
undivided 1/2 interest in and to all the oil, gas and minerals in,
upon and under said land,” but without any reference to the Burns
reservation. The question is whether the 1964 Deed reserved a
total of a one-half interest in the minerals and thereby conveyed the
other one-half interest to the Katzdorns (in which case the Wilsons
retained no mineral interest), or whether it reserved to the Wilsons
a one-half interest along with the Burns reservation (in which case
the Moellers received no mineral interest).
¶ 18 The district court acknowledged that the extrinsic evidence of
prior conveyances created an ambiguity, but it declined to consider
that evidence in construing the reservation clause, having already
determined that the language was unambiguous as to what the
Wilsons retained. We decline to adopt that approach. Because
“circumstances surrounding the grant may be relevant to
interpreting the language of the grant,” we may consider the
extrinsic evidence of the Burns reservation in determining whether
the 1964 Deed is ambiguous in the first instance. Lazy Dog, 965
P.2d at 1236-37.
¶ 19 Terms in a deed are ambiguous when they are susceptible of
more than one reasonable interpretation. Owens, ¶ 16; see also
8
Bledsoe v. Hill, 747 P.2d 10, 12 (Colo. App. 1987) (“An ambiguity is
an uncertainty of the meaning of language used in a written
instrument.”). We conclude that in light of the Burns reservation,
which left the Wilsons with only a one-half interest in the minerals,
the language of the 1964 Deed is ambiguous.
¶ 20 On the one hand, 1964 Deed could reasonably be interpreted
to reserve a total of a one-half interest in the minerals, as the
Moellers contend.
¶ 21 This interpretation is consistent with supreme court precedent
concerning similar patterns of conveyances. In Brown v. Kirk, a
bank conveyed property to the plaintiffs through a deed that
“reserv[ed] unto the party of the first part, its successors and
assigns, an undivided one-fourth of all oil, gas, and other minerals.”
127 Colo. 453, 454, 257 P.2d 1045, 1045 (1953). The plaintiffs
then conveyed the property to the grantees, “excep[t] one half of all
oil, gas and mineral rights which parties of the first part reserve.”
Id. (alteration in original). The supreme court concluded that the
plaintiffs’ reservation clause — “one half of all oil, gas and mineral
rights” — referred to one-half of the entire mineral estate, including
the bank’s prior one-quarter reservation. See id. at 456-57, 257
9
P.2d at 1046-47. Therefore, the grantees received a one-half
mineral interest, leaving the plaintiffs with only the remaining
quarter-interest. Id.
¶ 22 The supreme court reached a similar conclusion when it
interpreted the deed language at issue in O’Brien v. Village Land Co.
In that case, the Ogren Estate conveyed to Village Land a piece of
property, “RESERVING an undivided one-half interest in and to all
oil, gas and other minerals.” O’Brien, 794 P.2d at 247. Through a
deed filed shortly thereafter on the same day, Village Land conveyed
the property to Henderson, also “RESERVING an undivided one-half
interest in and to all oil, gas and other minerals.” Id. Finding the
disputed conveyance analytically identical to the one at issue in
Brown, the supreme court held that the Village Land-Henderson
deed unambiguously reserved in total a one-half mineral interest,
and thus the deed conveyed the remaining one-half interest to
Henderson. Id. at 249-50, 252.
¶ 23 This interpretation also comports with the principle that a
deed conveys all interests associated with real property except those
explicitly reserved. 3 Am. Jur. 2d Deeds § 274, Westlaw (database
10
updated May 2020); see also 3 American Law of Mining § 82.01 (2d
ed. 2020).
¶ 24 But in our view, neither that interpretive principle nor the
precedent established by Brown and O’Brien compels a conclusion
that the 1964 Deed is unambiguous. Rather, the 1964 Deed could,
on the other hand, reasonably be interpreted to reserve a one-half
interest in the minerals to the Wilsons, in addition to the one-half
interest reserved by the Burnses.
¶ 25 That is true because we are bound, by equally well-settled
principles of construction, to give effect to each word in the deed.
See O’Brien, 794 P.2d at 249 (“[A] court must construe a deed so as
to give effect to all of its provisions[.]”). The specific reservation “to
the Grantors” suggests that the Wilsons intended to retain their
own one-half interest, independent of the prior reservation. After
all, the Burnses’ one-half interest could not be reserved to the
Wilsons. To read the 1964 Deed as reserving a total of a one-half
interest in the minerals would mean that the Wilsons reserved
nothing to themselves, rendering the phrase “to the Grantors”
meaningless. We avoid an interpretation of an agreement that
11
would nullify any of its terms or provisions. See Fed. Deposit Ins.
Corp. v. Fisher, 2013 CO 5, ¶ 12.
¶ 26 Given these two reasonable interpretations, the deed is
ambiguous. Bledsoe, 747 P.2d at 12.
¶ 27 Neither party has pointed us to any extrinsic evidence of the
parties’ intent, other than the Burns reservation — the same
evidence that gives rise to the ambiguity in the first place. In the
district court, Ferrari produced evidence that the Wilsons had
entered into lease agreements for the minerals in 1983 and 1986; it
argued that the Wilsons’ act of executing leases, and the failure of
the Moellers’ predecessors-in-interest to do the same, demonstrated
that the parties to the 1964 Deed believed that the Wilsons had
reserved for themselves an interest in the minerals.
¶ 28 True, courts may look to the subsequent conduct of parties to
a deed as an indication of their intent. 23 Am. Jur. 2d Deeds § 265,
Westlaw (database updated May 2020); see also Hall v. Nash, 81 P.
249, 251 (Colo. 1905); Town of Manitou v. Int’l Tr. Co., 30 Colo. 467,
475-79, 70 P. 757, 760-61 (1902). But here, both the Wilsons and
the Moellers entered into lease agreements at different times,
apparently with no objection from the other (or the other’s
12
predecessors-in-interest), and so the evidence suggests only that
both believed themselves to be the owners of the minerals,
presumably in reliance on the language of the 1964 Deed. In other
words, this extrinsic evidence does not help to resolve the
ambiguity. See McCormick v. Union Pac. Res. Co., 14 P.3d 346, 353
(Colo. 2000) (cautioning, in a discussion of whether a reservation
for “all minerals” included oil and gas, that decades-old extrinsic
evidence does not always shed “real light on the parties’ individual
intentions”). We therefore default to the rule that an ambiguous
deed is construed against the grantor. Bell Petroleum, 492 P.2d at
81; see also Notch Mountain, 898 P.2d at 557; Owens, ¶ 15.
¶ 29 Accordingly, we conclude that the district court erred in
quieting title in the mineral estate in Ferrari. See Bledsoe, 747 P.2d
at 12. The judgment is reversed, and the case is remanded with
directions for the court to enter judgment in favor of the Moellers on
their quiet title claim.
III. The Parties’ Other Claims of Error
¶ 30 In light of our disposition, we decline to address either the
Moellers’ additional argument that the court erred in precluding its
adverse possession defense, or Ferrari’s argument on cross-appeal
13
that the court erred in denying its unjust enrichment claim against
the Moellers.
IV. Conclusion
¶ 31 The decree in quiet title is reversed and the case is remanded
for further proceedings consistent with this opinion.
JUDGE ROMÁN concurs.
JUDGE GROVE specially concurs.
14
JUDGE GROVE, specially concurring.
¶ 32 I agree with the majority’s conclusion that any ambiguity in
the 1964 Deed should be construed in favor of the Moellers, as
successors-in-interest to the original grantees. But because, in my
view, the 1964 Deed unambiguously conveyed one-half of the
mineral estate to the grantees, I would reverse the district court’s
judgment on that ground alone.
¶ 33 In O’Brien v. Village Land Co., 794 P.2d 246 (Colo. 1990), and
Brown v. Kirk, 127 Colo. 453, 456, 257 P.2d 1045, 1046 (1953), the
supreme court construed deeds that, like this one, conveyed land
by general description while also reserving one-half of the minerals.
Although the grantors in both cases owned only one-half of the
mineral estates, they both argued that the reservation in the deeds
applied to the halves that they owned — meaning that they would
keep those minerals and transfer only the surface estates to the
respective grantees.1 The supreme court disagreed in both cases,
1 In both cases, as in this one, the dispute only extended to the
fraction of the minerals that the grantor owned at the time of the
conveyance. Ownership of minerals previously reserved by others
in the chain of title was unaffected by any subsequent disagreement
over the remainder of the subsurface estate.
15
holding in O’Brien that where “the face of the . . . deed purported to
convey all mineral interests except the one-half expressly reserved
by the terms of the deed, [the] grantor conveyed and warranted title
to one-half of the mineral interests” in the entire parcel. 794 P.2d
at 251.
¶ 34 As a general rule, “a conveyance of land by general
description, without any reservation of a mineral interest, passes
title to both the land and the underlying mineral deposits.” Id. at
249. Mineral interests may of course be excluded from a
conveyance, but interpretive questions can arise in cases where a
deed’s grantor owns less than he ostensibly conveys. Colorado is
one of a number of states that resolves any such questions by
looking exclusively to the four corners of the deed and giving
dispositive weight to the expectations that the grantee would have
had based on the language of the deed alone.
¶ 35 The Texas Supreme Court considered the interpretive
difficulties created by fractional conveyances from partial owners of
the mineral estate in Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d
878, 880-81 (Tex. 1940). Its influential opinion established the
“Duhig rule,” which relies on principles of estoppel by deed to
16
prevent a grantor who has conveyed property by warranty deed
from disputing the title that he has warranted.
The effect of Duhig is that a grantor cannot
grant and reserve the same mineral interest,
and if a grantor does not own a large enough
mineral interest to satisfy both the grant and
the reservation, the grant must be satisfied
first because the obligation incurred by the
grant is superior to the reservation.
Acoma Oil Corp. v. Wilson, 471 N.W.2d 476, 480 (N.D. 1991).
¶ 36 The Colorado Supreme Court has declined to adopt Duhig’s
estoppel-by-deed theory, noting that it “has been criticized as
contrived.” O’Brien, 794 P.2d at 251 n.3 (“We do not employ the
Duhig analysis in this case and instead reach our result by giving
effect to the unambiguous and unequivocal terms of the . . . deed.”).
Yet, on similar facts, O’Brien and Brown reached the same result as
Duhig by conducting a simple one-step analysis that looked to the
four corners of the deed alone to determine the scope of the
conveyance. That approach was consistent with the author judge’s
preferred reasoning2 in Duhig, which concluded that “the intention
2Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d 878 (Tex. 1940),
was unusual in that the author judge essentially specially
concurred by explaining his own distinct reasons for affirming the
17
of the parties to the deed was to invest the grantee with title to the
surface and a one-half interest in the minerals,” while withdrawing
via the reservation clause the half that the grantor did not own.
144 S.W.2d at 879; see also Patrick H. Martin & Bruce D. Kramer,
Williams and Meyers, Oil and Gas Law § 311 (2014). The
reservations in all three cases — O’Brien, Brown, and Duhig — did
not apply to the half that the grantor did own because otherwise the
grantee would not receive the partial undivided interest in mineral
estate that the deed purported to convey. See Appling v. Fed. Land
Bank of Wichita, 816 P.2d 297, 301 (Colo. App. 1991).
¶ 37 Here, the district court found significant the fact that the 1964
Deed’s reservation was “to the grantors herein” — language it
determined “explicitly reserve[d] one-half of the mineral estate in
the [grantors].” This reservation, it noted, contrasted with previous
cases that reserved minerals without specifying who would own
them after the sale was complete. See O’Brien, 794 P.2d at 247
(conveying real estate by general description while “RESERVING an
undivided one-half interest in and to all oil, gas and other
trial court’s judgment before revealing that the court had adopted
the estoppel-by-deed approach.
18
minerals . . .”); Brown, 127 Colo. at 454, 257 P.2d at 1045
(conveying real estate by general description “except one half of all
oil, gas and mineral rights which party of the first part reserves”).
As the district court viewed it, the less specific language in these
reservations allowed the O’Brien and Brown courts to conclude that
the grantors “conveyed one-half of the mineral estate to the
grantees without doing violence to the plain language in the deeds.”
But at the same time, the district court found that the more specific
reservation in the 1964 Deed — “to the grantors herein” —
precluded a similar result in this case.3
¶ 38 In my view, the district court erred by allowing what it
concluded was the grantors’ intent to override the grantees’
expectation based on the plain language of the deed. Based on that
plain language, the grantees would have reasonably concluded that
3 It is worth noting that the attempted reservation in Duhig included
language every bit as specific as the 1964 Deed: “But it is expressly
agreed and stipulated that the grantor herein retains an undivided
one-half interest in and to all mineral rights or minerals of whatever
description in the land.” Duhig, 144 S.W.2d at 879. This
reservation, the author judge would have held, did “not clearly and
plainly disclose the intention of the parties that there be reserved to
the grantor Duhig an undivided one-half interest in the minerals in
addition to that previously reserved[.]” Id.
19
they were acquiring everything that the deed did not specifically
reserve — including one-half of the mineral estate. The 1964 Deed,
after all, conveyed the property by general description (reserving
one-half of the minerals), and its habendum clause not only
represented that the grantors were “well seized of the premises
above conveyed,” but also that those premises were “free and clear
from all former and other grants, bargains, sales, liens, taxes,
assessments and incumbrances of whatever kind or nature soever,
except taxes for the year 1964.” See Owens v. Tergeson, 2015 COA
164 (construing deed as a whole, including both granting and
habendum clause, to determine grantor’s intent). Based on these
representations, and without going beyond the four corners of the
deed to evaluate the mineral estate’s chain of title, the grantees
could only have concluded that one-half of the mineral estate was
being reserved and the other one-half transferred to them. See
O’Brien, 794 P.2d at 251.
¶ 39 Nor does the deed’s reservation of half the mineral estate “to
the grantors” render the deed ambiguous. “[T]he fact that the
parties have different opinions about the interpretation of the deed
does not of itself create an ambiguity.” Hudgeons v. Tenneco Oil
20
Co., 796 P.2d 21, 22 (Colo. App. 1990). And because the grantor
assumes the risk of title failure, “[i]f both the grant and the
reservation cannot be given effect . . . the grant must prevail.”
Gilstrap v. June Eisele Warren Tr., 106 P.3d 858, 867 (Wyo. 2005);
see also Harlingen Irrigation Dist. Cameron Cty. No. 1 v. Caprock
Commc’ns Corp., 49 S.W.3d 520, 533 (Tex. App. 2001) (“When both
the granting clause and reservation clause cannot be given effect,
the granting clause prevails and the reservation clause fails.”).
¶ 40 In short, I would, consistent with O’Brien and Brown, hold
that, whatever the grantors may have been attempting to do by
adding a reservation clause to the 1964 Deed, they could not
reserve any more of the mineral estate than what they already
owned. Thus, the 1964 Deed unambiguously conveyed one-half of
the mineral estate to the grantees, the Moellers’ successors-in-
interest, and left the grantors with nothing. Accordingly, while I
concur with the majority’s holding, I would reverse the judgment of
the district court based on the plain language of the 1964 Deed
alone.
21