Mineral Ownership Under Highways, Streets, Alleys and Ditches
| Publication year | 1988 |
| Pages | 43 |
1988, January, Pg. 43. Mineral Ownership Under Highways, Streets, Alleys and Ditches
For years, mineral ownership under highways, streets, alleys and ditches has been controversial. Title examiners frequently are presented with the question of who owns the minerals under roads and ditches. The stakes are potentially high for both mineral concerns and landowners. In light of recent case law, right-of-way owners should re-evaluate whether they own interests in fee simple or easements.
When determining mineral ownership under highways, streets, alleys and ditches, one question predominates: How was the interest created? Was it by prescription, condemnation, dedication or conveyance? Each has its own rules. Highways, streets, alleys and ditches are either easements or fee interests. Easements carry no rights in the soil.(fn1) Fee interests may or may not include subsurface minerals because of their peculiar characterization by the Colorado courts.
A dedication is an appropriation of land by the fee owner to some public use and its adoption by the public.(fn2) In Colorado, the dedication of lands for streets and alleys vests a fee simple determinable in the city to the surface and so much of the ground underneath as is required for gas lines, sewers and other municipal purposes.(fn3)
The 1906 Bohn Mining Company(fn4) decision interpreted the then existing dedication statutes, which provided that all avenues, streets, alleys, parks and other places dedicated for public use shall be public property, with the fee vesting in the municipality. The Colorado Supreme Court held that the legislature used the term "fee" not according to its technical legal meaning but as vesting in the city a complete, perpetual and continuous title to the space designated as streets, so long as it used them for the purpose intended. The dedicator parted with only as much of his title as was necessary to establish streets and alleys. Since "street" was defined by the court as including the surface and the depth needed for municipal purposes, the minerals beneath this depth did not pass to the city.
The current dedication statutes are practically identical to those discussed in Bohn.(fn5)
A right-of-way acquired by prescription is an easement, and it includes all that is reasonably necessary for the convenient and proper use of the right-of-way.(fn6) Therefore, no minerals are acquired by prescription. The prerequisites to acquisition of a prescriptive easement are continuous, open and adverse possession of the right-of-way for the statutory period.(fn7)
As a general rule, fee interests conveyed by deed...
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