Murray et al v. Billings Garfield Land Company et al
ORDER, The Court finds that dinosaur fossils are not minerals under a general mineral deed. Accordingly, IT IS ORDERED that The Murray's 45 MOTION for Summary Judgment is GRANTED. The Severson's 48 MOTION for Summary Judgment is DENIED. The Murray's are the sole owners of the dinosaur fossils found on the subject property. Signed by Judge Susan P. Watters on 5/20/2016. (EMH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
MAY 2 0 2016
Clerk. U.S. District Court
D1stnct Of Montana
MARY ANN MURRAY and LIGE M.
OPINION and ORDER
BILLINGS GARFIELD LAND
COMPANY, ROBERT E.
MINERALS, LLC, BEJ MINERALS,
LLC, RTWF, LLC and JOHN DOES
BEJ MINERALS, LLC, RTWF, LLC
MARY ANN MURRAY and LIGE M.
Before the Court are competing summary judgment motions filed by
Plaintiffs/Counter-Defendants Mary Ann Murray and Lige E. Murray (collectively
the "Murrays") and Defendants/Counter-Claimants BEJ Minerals, LLC and
RTWF, LLC (collectively the "Seversons"). The motions present the question of
whether dinosaur fossils found on a ranch are included in the surface estate or the
mineral estate. For the reasons that follow, the Court finds that fossils are not
included in the ordinary definition of"mineral." Accordingly, the Court
determines that the dinosaur fossils found on the ranch are part of the surface
I. Background 1
A. Factual Background
George Severson formerly owned a large amount of farm and ranch property
located in Garfield County, Montana. (Doc. 33 at 3.) Beginning in 1983, the
Murrays leased the land from George Severson and worked there as ranchers.
(Mary Ann Murray Depa. 30:3-31:8, Doc. 48-4 at 5-6.) Over the years, George
Severson transferred portions of his interests in the property to his sons Jerry and
Robert Severson and sold the other portions of his property interests to the
Murrays. (Doc. 33 at 3.) From approximately 1991 through mid-2005, the
Murrays operated the property in partnership with Jerry and Robert Severson under
the name Murray Severson Ranch Partnership. (Id. at 4.)
In 2005, Jerry and Robert Severson (and/or entities they owned and
managed) sold their surface ownership rights in the property to the Murrays. (Id.)
At the time of the 2005 sale, the mineral estate was severed from the surface estate.
(Id.) The purchase agreement provided that at closing, the parties would execute a
mineral deed apportioning ownership of the mineral rights as follows: 1/3 to
Robert Severson, 1/3 to Jerry Severson's company Severson Minerals, LLC, and
Unless otherwise noted, these facts are undisputed.
1/6 each to Lige and Mary Ann Murray. (Id.) One exception was a parcel where
half the mineral rights were owned by an unrelated third party known as the
Billings Garfield Land Company. (Id. at 5.) On that parcel, ownership of the
mineral rights was apportioned as follows: 50% to Billings Garfield Land
Company, 16.67% to Robert E. Severson, 16.67% to Severson Minerals, LLC, and
16.67% to the Murrays. (Id.)
The mineral deed provided that the Seversons and the Murrays would own
as tenants in common "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
[property]." (Id. at 6.) The parties executed and recorded the deed in connection
with the sale of the surface estate. (Id. at 4.) At the time of the sale, neither the
Seversons nor the Murrays suspected that dinosaur fossils existed on the property.
(Doc. 55 at 6.) Robert Severson's interest is now held by BEJ Minerals, LLC.
(Doc. 33 at 5.) Severson Minerals, LLC's interest is now held by RTWF LLC.
(Id. at 4.) To avoid being involved in this lawsuit, Billings Garfield Land
Company has subsequently transferred to the Seversons any interest it had in any
fossils found on the property. (Doc. 53 at 8.)
After the severance of the mineral and surface estates, the Murrays
discovered several dinosaur fossils on the property. The first fossil was a "spike
cluster" from a Pachycephalosaur found in the fall of2005. (Doc. 53 at 12.) At
the time, the Murrays did not consider this fossil to be significant. (Id.)
Sometime prior to December 2006, the Murrays discovered fossils of two
separate dinosaurs that appear to have been locked in battle when they died. (Doc.
53 at 12, 14-15.) Subsequently nicknamed the Dueling Dinosaurs, one of the
Murrays' experts described it as a "one-a-kind find." (Peter Larson Depa. 131: 10,
Doc. 48-4 at 141.) Fossils of dinosaurs that appear to have interacted are rare, and
the Dueling Dinosaurs "have huge scientific value." (Phillip Manning Depa.
120: 11-25, Doc. 48-4 at 185). An appraiser concluded that the Dueling Dinosaurs
have a market value of between $7 million and $9 million. (Doc. 55 at 17.) The
Murrays attempted to sell the Dueling Dinosaurs at a New York City auction, but
nobody bid over the reserve of$6 million. (Doc. 55 at 17; Mary Ann Murray Ajf.
3, Doc. 55-2 at 2.)
The Murrays also discovered the fossilized remains of a Tyrannosaurus rex
on the property. (Doc. 55 at 7-8.) Subsequently nicknamed the "Murray T. Rex,"
there are only about a dozen Tyrannosaurus rex skeletons as well preserved and
complete as the Murray T. Rex. (Id. at 18.) The Murray T. Rex has been sold to a
Dutch museum for a negotiated price in the millions of dollars. (Id.) The proceeds
from the sale are being held in escrow pending the outcome of this action. (Id. at
A Triceratops skull and part of a Triceratops foot have also been found on
the property. (Doc. 33 at 6.) The Murrays' agent who helped prepare the
Triceratops skull for display wrote that it was "the best specimen I have ever
worked on and i [sic] have done 27 Triceratops skulls." (Chris Morrow Email,
Doc 48-6 at 27.) Clayton Phipps, who helped the Murrays locate and excavate the
fossils found on the property, described the skull to a potential purchaser as "one of
the best if not the best Triceratops skull ever found and the best one available for
sale now. 2" (Clayton Phipps Email, Doc. 48-6 at 23.) The Murrays have offered to
sell the Triceratops skull for between $200,000 and $250,000. (Doc. 55 at 20.)
They sold the Triceratops foot by itself for $20,000. (Id. at 21.)
The Murrays entered into contracts and arrangements with third parties
relating to the excavation and sale of the fossils found on the property. (Id. at 10.)
The Murrays did not notify the Seversons upon discovery of the fossils or before
attempting to sell the fossils. (Id.) The parties agree that the Dueling Dinosaurs,
the Murray T-Rex, and the Triceratops fossils are rare, exceptional, and have
special value. (Id. at 18, 19, and 21.)
The Court notes that both the Morrow and Phipps emails were to potential
buyers, so there is a chance that the superlatives were puffery.
B. General Information about Fossils
The parties' experts differ slightly in describing the process of how the
dinosaur bones found on the property became "fossilized." The Seversons' expert
Raymond Rogers described fossilization "as a preservational process." (Raymond
Rogers Depa. 89:9-10, Doc. 48-4 at 234.) Bones and teeth naturally contain a
mineral called hydroxylapatite. (Raymond Rogers Ex. Disclosure at 6, Doc. 48-4
at 199.) In the vast majority of instances after a vertebrate's death, the bones are
decomposed and destroyed. (Id. at 7, Doc. 48-4 at 200.) However, in some
circumstances, the bones and teeth can be stabilized and fossilized after a material
called collagen is removed. (Id.) Rogers opined that fossilization refers to the
"recrystallization" of organic bone matter into more stable forms. (Id.) Further,
minerals are sometimes added to the bone by filling preexisting open spaces in the
bone structure and the space formerly occupied by decomposed collagen. (Id.)
Such minerals include calcite, pyrite, barite, apatite, chlorite, and silica. (Id.)
However, minerals do not fill voids in all fossils. (Id. at 8, Doc. 48-4 at 201.)
In reviewing the dinosaur fossils found on the Murrays' ranch, Rogers
concluded that the dinosaur bones recrystallized into a compound called francolite.
(Id. at JO, Doc. 48-4 at 203.) According to Rogers, "[f]rancolite is a carbonate and
fluorine enriched apatite group mineral." (Id. at 9, Doc. 48-4 at 202.) Rogers
stated that francolite is the most common mineral found in recrystallized fossil
bone. (Id. at 8-9, Doc. 48-4 at 201-02.) Rogers reviewed x-ray diffractograms
performed on the fossils found on the property, and he concluded that francolite is
present in the fossils. (Id. at 9-10, Doc. 48-4 at 202-03.) Rogers opined "that the
fossil dinosaur bones in question were recrystallized to the mineral francolite
during fossilization." (Id. at 10, Doc. 48-4 at 203.)
The Murrays' experts largely agree with the fossilization process described
by Rogers, but they differ on the conclusion that francolite is a mineral compound.
Expert Peter Larson opined that "francolite has not been recognized as a distinct,
valid mineral species since 2008." (Peter Larson Rebuttal Ex. Report at 1, Doc.
55-6 at 6.) Larson stated that the fossils are composed of the mineral
hydroxylapatite. (Peter Larson Depa. 223:12-14, Doc. 48-4 at 156.) As
mentioned above, hyrdoxylapatite is not unique to fossils, as it is found in the
bones ofliving vertebrates. Larson compared the x-ray diffraction patterns of the
Murray T. Rex and a modern bison bone, and he concluded that the samples
contained identical patterns ofhydroxylapatite. (Id. at 219: 17-221: 17, Doc. 48-4
at 219-221.) Larson opined that the fossil "has not been replaced by minerals in
any way, shape, or form. It is hydroxylapatite just as when it was alive." (Id. at
224: 15-18, Doc. 55-3 at 7.) Larson does not consider minerals that fill voids in the
bone to be part of the fossil. (Id.)
While the Dueling Dinosaurs, the Murray T. Rex, and Triceratops skull and
foot are indisputably valuable, not all dinosaur fossils are rare and valuable. (Doc.
53 at 16-17.) Fragments of fossils that have little or no value are sometimes
referred to as "chunkosaur" or "junkasaur." (Id.) Clayton Phipps stated that he has
"walked by literally truckloads of bone fragments which [he] regularly call[s]
'leaverite' which means 'leave 'er rite there, it's worthless."' (Clayton Phipps Aff.
iJ 4, Doc. 47-9 at 2.) Finding valuable fossils is mostly a matter of luck and effort,
and locating fossils involves walking, riding, or driving around to see if there are
any bones lying around or sticking out of the ground. (Doc. 53 at 19.)
C. Procedural Posture
The Murrays filed this action in Montana state court seeking a declaratory
judgment that the fossils found on the property are part of the surface estate and
therefore solely owned by the Murrays. (Doc. 1-1.) The Seversons removed the
action to this Court on the basis of diversity jurisdiction. (Doc. 1.) The Seversons
include a counterclaim for a declaratory judgment that the fossils are properly
classified as minerals under Montana law for purposes of a mineral deed. (Doc. 7
at 18-19.) The Murrays and the Seversons now move for summary judgment on
Summary judgment is proper when "the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). An issue is "genuine" only ifthere is a sufficient
evidentiary basis on which a reasonable fact finder could find for the nonmoving
party and a dispute is "material" only if it could affect the outcome of the suit
under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In considering a motion for summary judgment, the court "may not make
credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing
Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. Since the Court
is sitting in diversity jurisdiction, Montana substantive law applies. In re Exxon
Valdez, 484 F.3d 1098, 1100 (9th Cir. 2007).
The Seversons argue that the undisputed facts show that the fossils at issue
are composed of minerals. The Seversons note that even crediting the Murrays'
expert's opinion, the fossils are composed of the mineral hydroxylapatite. The
Seversons continue that the fossils are "rare and exceptional in character" and
possess "special value," and are therefore properly classified as "minerals" for
purposes of a mineral deed under Montana law. The Murrays argue that the
ordinary and natural meaning of"mineral" does not include fossils. The Murrays
point to statutory and regulatory definitions of"mineral" in other contexts to
support their argument. The Murrays also argue that public policy supports a
finding that fossils are not "minerals" under a mineral deed.
A. Ordinary and Natural Meaning Test
As mentioned above, the mineral deed provides joint ownership of"all of
the oil, gas, hydrocarbons, and minerals" found on the property. (Doc. 33 at 6
(emphasis added).) When used in a deed, the "term 'mineral' has been the source
of considerable confusion in mineral law litigation nationwide." Farley v. Booth
Bros. Land & Livestock Co., 890 P.2d 377, 379 (Mont. 1995). This confusion has
led to "title uncertainty and the need to litigate each general reservation of minerals
to determine which minerals it encompasses." Id. (quoting Miller Land & Mineral
Co. v. State Highway Comm'n of Wyoming, 757 P.2d 1001, 1002 (Wyo. 1988)).
In Farley, the Montana Supreme Court considered whether scoria is a
"mineral" for purposes of land transfers without the benefit of established Montana
law on the topic. 890 P.2d at 379. The Court first examined statutory definitions
of the term "mineral" and found that the definition differs depending on the context
in which it is used. Id. For example, scoria was explicitly included in the
definition of"mineral" under Mont. Code Ann. § 82-4-403(6), which is included in
a part of the code entitled Opencut Mining Reclamation. 3 Farley, 890 P.2d at 379.
Conversely, scoria may not have been included in the definition of"mineral"
fonnerly found at§ 82-4-303(9), which was included in a part of the code entitled
Metal Mine Reclamation. 4 Id.
In the absence of an applicable statutory definition, the Court examined case
law from other jurisdictions. Id. at 379-80. The Court favorably quoted a North
Dakota case which held that "materials like gravel, clay and scoria are not
ordinarily classified as minerals because they are not exceptionally rare and
valuable." Id. at 380 (quoting Hovden v. Lind, 301N.W.2d374, 378 (N.D. 1981)).
The Court also favorably quoted an Oklahoma case which held "that substances
such as sand, gravel and limestone are not minerals within the ordinary and natural
meaning of the word unless they are rare and exceptional in character or possess a
peculiar property giving them special value." Farley, 890 P.2d at 380 (quoting
Holland v. Dolese Co., 540 P .2d 549, 550 (Okla. 1975)). Finally, the Court also
favorably cited Miller, where the Wyoming Supreme Court concluded that gravel
was not a mineral. Farley, 890 P.2d at 380 (citing Miller, 757 P.2d at 1004). The
cases cited by the Montana Supreme Court followed a test commonly known as the
"ordinary and natural meaning test" first articulated by the Supreme Court of
In 1999, the Montana legislature changed the defined term found at§ 82-4-403(6)
from "minerals" to "materials." H.B. 183, 1999 Reg. Sess. (Mont. 1999).
4 This definition of"mineral" is now found at§ 82-4-303(16).
Texas in Heinatz v. Allen, 217 S.W.2d 994, 997 (1949). Numerous courts follow
this approach. Miller, 757 P.2d at 1004.
In Heinatz, the Court considered whether limestone is a "mineral." 217
S. W .2d at 995. The Court noted that scientific or technical definitions of a
"mineral" are not helpful, as "it is rare, if ever, that mineral is intended in the
scientific or geological sense in the ordinary trading transactions about which
deeds and contracts are made." Id. at 997. The Court determined that the term
"mineral" should be interpreted according to its "ordinary and natural meaning."
Id. Under this approach, "mineral" is defined according to "its ordinary and
natural meaning unless there is a clear indication that [it is] intended to have a
more or a less extended signification." Id. Applying that definition, the Court held
[S]ubstances such as sand, gravel and limestone are not minerals
within the ordinary and natural meaning of the word unless they are
rare and exceptional in character or possess a peculiar property giving
them special value, as for example sand that is valuable for making
glass and limestone of such quality that it may profitably be
manufactured into cement. Such substances, when they are useful
only for building and road-making purposes, are not regarded as
minerals in the ordinary and generally accepted meaning of the word.
Id. Since the limestone at issue in Heinatz was only useful for building purposes, it
was not a mineral for purposes of a mineral deed. Id.
After reviewing these persuasive authorities, the Montana Supreme Court
held that scoria is not a mineral. Farley, 890 P.2d at 380. Scoria is used in road
construction, which did not "elevate scoria to the status of a compound which is
'rare and exceptional in character' and therefore, a 'mineral."' Id. (quoting
Holland, 540 P.2d at 550-551). Since scoria does not possess any special
properties to make it rare and exceptional, scoria was not included in the mineral
estate. Farley, 890 P.2d at 381.
The Montana Supreme Court later reaffirmed this approach by holding that
sandstone is not a mineral included in a general reservation of mineral rights. Hart
v. Craig, 216 P.3d 197 (Mont. 2009). The Court noted that Farley followed the
reasoning articled in Heinatz. Hart, 216 P.3d at 198. However, rather than
focusing on the "ordinary and natural meaning" of"mineral," the Court concluded
that sandstone is not a mineral because it "is not exceptionally rare and valuable."
B. Application of the Test to Dinosaur Fossils
At least two takeaways from the Heinatz test are relevant here. First, the
focus of the test articulated by Heinatz does not tum on whether the substance is
"rare and exceptional in character." If that were true, then every rare and
exceptional substance found on somebody's property would be considered a
"mineral." Instead, for purposes of property transfers, the Heinatz test turns on the
"ordinary and natural meaning" of "mineral." Dyegard Land P'ship v. Hoover, 39
S.W.3d 300, 310 (Tex. App. 2001).
Whether a material is "rare and exceptional" assists the determination of
whether it is included in the ordinary and natural meaning of"mineral." For
example, as in Heinatz, limestone could be a mineral if it could be profitably used
in making cement, but it is not a mineral if the limestone can only be used for
building purposes. 217 S.W.2d at 997. Sand is also not generally a mineral, but it
could be if it had special properties that made it valuable for making glass. Id.
Similarly, sandstone and scoria could fall into the ordinary definition of mineral,
but for purposes of a mineral deed they do not because they do not possess any
special properties that make them rare and exceptional. Farley, 890 P.2d at 380;
Hart, 216 P.3d at 198. When a material may fit into the "ordinary and natural
meaning" of"mineral," such as limestone and sand, any rare and valuable
characteristics inform the inquiry into whether a material fits the definition.
However, not all rare and valuable materials fit the ordinary and natural meaning
The second takeaway is a material's inclusion in the scientific definition of
"mineral" is not determinative. Heinatz, S.W.2d at 997. If courts were to follow
the technical definition of "mineral," "dirt composing a large part of the surface
could also be considered a mineral." Dyegard, 39 S. W.3d at 31 O; see also Fleming
Found. v. Texaco, Inc., 337 S.W.2d 846, 851 (Tex. Civ. App. 1960) (Although
there is no "doubt about water being technically a mineral," subsurface water is not
a mineral under a reservation of mineral rights). Thus, the Court does not need to
involve itself in the dispute as to whether francolite is properly classified as a
mineral. Similarly, the presence of the mineral hydroxylapatite is not
determinative. As discussed above, bones and teeth of living and dead vertebrates
naturally contain hyrdoxylapatite. (Raymond Rogers Ex. Disclosure at 6, Doc. 484 at 199.) Yet a reasonable person would not believe that the remains of a mule
deer found on the Murrays' ranch that contain either francolite or hydroxylapatite
would fit the ordinary definition of "mineral" under a mineral deed.
Accordingly, the Court's task is not simply to determine whether the
dinosaur fossils are "rare and exceptional in character." The Court uses the fossils'
characteristics to help inform the analysis of whether they meet the ordinary and
natural meaning of "mineral." The Court looks to several sources in aid of that
determination. Deeds conveying an interest in property are governed by contract
principals. Mary J. Baker Revocable Trust v. Cenex Harvest States, Cooperatives,
Inc., 164 P.3d 851, 857 (Mont. 2007) (citing Mont. Code Ann.§ 70-1-513).
Montana courts use dictionary definitions to assist in determining the common and
ordinary understanding of a contract term. Dollar Plus Stores, Inc. v. R-Montana
Associates, L.P., 209 P.3d 216, 219 (Mont. 2009); Ravalli Cty. v. Erickson, 85 P.3d
772, 774 (Mont. 2004).
The relevant dictionary definitions of "mineral" typically include an
inorganic element or compound mined for economic purposes. See Webster's
Third New International Dictionary 1437 (Philip Babcock Gove ed. 1981)
(defining "mineral," in part, as "a solid homogenous crystalline chemical element
or compound (as diamond or quartz) that results from inorganic processes of nature
and that has a characteristic crystal structure and chemical composition or range of
compositions; any of various naturally occurring homogenous or apparently
homogenous and usu[ ally] but not necessarily solid substances ... obtained for
man's use usu[ally] from the ground"); New Oxford American Dictionary 1113
(Angus Stevenson & Christine Lindberg eds., 3rd ed. 2010) ("a solid inorganic
substance of natural occurrence; substance obtained by mining"); and The
American Heritage Dictionary 1120-21 (Joseph Pickett ed., 5th ed. 2011) ("A
naturally occurring, homogenous inorganic solid substance having a definite
chemical composition and characteristic crystalline structure, color, and hardness;
Any of the various natural substances, as: a. An element, such as gold or silver. b.
An organic derivative, such as coal or petroleum. c. A substance, such as stone,
sand, salt, or coal, that is extracted or obtained from the ground or water and used
in economic activities"). Finally, the latest edition of Black's Law Dictionary
defines "mineral" as:
1. Any natural inorganic matter that has a definite chemical
composition and specific physical properties that give it value . 2. A subsurface material that is
explored for, mined, and exploited for its useful properties and
commercial value. 3. Any natural material that is defined as a mineral
by statute or caselaw.
Black's Law Dictionary 1145 (Bryan Gamer ed., 10th ed. 2014).
In addition to dictionaries, Montana courts may look to statutory definitions
from other contexts to help determine the common and ordinary understanding of a
contract term. Dollar Plus Stores, 209 P.3d at 219-20. Cited earlier, Mont. Code
Ann.§ 82-4-303(16) provides:
"Mineral" means any ore, rock, or substance, other than oil, gas,
bentonite, clay, coal, sand, gravel, peat, soil materials, or uranium,
that is taken from below the surface or from the surface of the earth
for the purpose of milling, concentration, refinement, smelting,
manufacturing, or other subsequent use or processing or for
stockpiling for future use, refinement, or smelting.
Under Montana's tax code, "mineral" is defined as
[A]ny precious stones or gems, gold, silver, copper, coal, lead,
petroleum, natural gas, oil, uranium, talc, vermiculite, limestone, or
other nonrenewable merchantable products extracted from the surface
or subsurface of the state of Montana.
Mont. Code Ann. § 15-3 8-103.
The above statutory definitions of"mineral" focus on the mining of hard
substances or oil and gas that are primarily extracted for future refinement and
economic purposes. Dinosaur fossils do not seemingly fall into those statutory
definitions. Montana law draws distinctions between minerals and fossils in other
places. In the context of leasing state land, regulation differentiates fossil
collection and mineral exploration:
"General recreational use" means non-concentrated, non-commercial
recreational activity, except:
(a) collection, disturbance, alteration, or removal of
archeological, historical, or paleontological sites or specimens
(e.g., fossils, dinosaur bones, arrowheads, old buildings,
including siding) (which requires an antiquities permit pursuant
to 22-3-432, MCA);
(b) mineral exploration, development, or mining (which
requires a lease or license pursuant to Title 77, chapter 3,
(c) collection of valuable rocks or minerals (which requires a
lease or license pursuant to Title 77, chapter 3, MCA)[.]
Mont. Admin. R. 36.25.145(11). Further, the legislature differentiated between
fossils and minerals by granting the Montana Historical Society the authority "to
collect and preserve such natural history objects as fossils, plants, minerals, and
animals[.]" Mont. Code Ann.§ 22-3-107(13).
The Seversons challenge the use of unrelated statutory definitions to assist in
determining the meaning of the term "mineral" as used in their mineral deed. The
Seversons point out that the Montana Supreme Court in Farley considered but
ultimately did not rely on the statutory definitions of "mineral." Instead, the
Seversons urge this Court to only consider whether the fossils are "rare and
The Court agrees that the statutory definitions are used in different contexts
and cannot be used as the sole legal authority to determine whether a material is a
"mineral" for purposes of a land transfer. However, the Court can use these
definitions to assist in the determination of whether dinosaur fossils are included in
the ordinary and natural meaning of"mineral." Montana law permits the use of
both dictionary and statutory definitions to determine the ordinary and common
meaning of an agreement's term.
Dollar Plus Stores, 209 P.3d at 219-20; see
also Newman v. Wittmer, 917 P.2d 926, 930 (Mont. 1996) ("statutory definitions
provide guidance in interpreting the ordinary and popular meaning of undefined
terms in a restrictive covenant"). Further, Farley is distinguishable because one
statutory definition of "mineral" explicitly included scoria, while it was unclear
whether scoria was included in another statutory definition. Farley, 890 P.2d at
379. Because of this inconsistency, the statutory definitions were unhelpful. Id.
As relating to fossils, the Court finds that the statutory and dictionary definitions of
"mineral" are consistent; all of them exclude fossils from the definition of
The Court finds that dinosaur fossils are not included in the natural and
ordinary meaning of"mineral" as used in the Seversons' and Murrays' mineral
deed. The above cited dictionary and statutory definitions show that the common
understanding of "mineral" includes the mining of a hard compound or oil and gas
for refinement and economic exploitation. In contrast, dinosaur fossils are the
remains of once-living vertebrates. The fossils' properties are not what make them
valuable. Fossils are not subject to further refinement before becoming
economically exploitable. Instead, the fossils are valuable because of their very
existence. Dinosaur bones are not economically valuable to be processed into fuel
or materials or manufactured into jewelry. Further, dinosaur fossils are not mined
in the traditional sense, but rather discovered by happenstance. (Doc. 53 at 19.)
The Court finds that dinosaur fossils do not meet the ordinary and natural
definition of "mineral" for purposes of a mineral deed, even though the fossils
found on the Murrays' ranch could be described as "rare and exceptional." As
discussed above, a material's status as "rare and exceptional" helps inform whether
it is ordinarily considered a mineral. The test is not solely whether the material is
rare and exceptional, however. Not all materials that are rare and exceptional are
considered minerals. Here, the Court finds that both valuable dinosaur fossils,
such as the Dueling Dinosaurs, and worthless fossils, like "junkasaur," are not
ordinarily considered minerals. The Dueling Dinosaurs and "junkasaur" are likely
composed of the same minerals. The composition of minerals found in the fossils
does not make them valuable or worthless. Instead, the value turns on
characteristics other than mineral composition, such as the completeness of the
specimen, the species of dinosaur, and how well it is preserved.
If the test is truly whether a material is rare and exceptional, then many
items that ordinarily would not be considered minerals would fall under a mineral
deed. Although the Dueling Dinosaurs, the Murray T. Rex, and the Triceratops
fossils are indisputably valuable, they do not fall under the ordinary and natural
definition of "mineral" for purposes of a mineral deed.
The Court finds that dinosaur fossils are not minerals under a general
mineral deed. Accordingly, IT IS HEREBY ORDERED:
I. The Murrays' Motion for Summary Judgment (Doc. 45) is GRANTED.
2. The Seversons' Motion for Summary Judgment (Doc. 48) is DENIED.
3. The Murrays are the sole owners of the dinosaur fossils found on the
4. The Clerk of Court shall enter judgment and close this case.
J/o day ofMay, 2016.
~<'7--r'-~ r": ?~~C-~
United States District Judge
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