Chapter 2 - § 2.4 • CONSTITUENTS OF REAL PROPERTY

JurisdictionColorado
§ 2.4 • CONSTITUENTS OF REAL PROPERTY

§ 2.4.1—Land

"Land" means the soil of the earth, and all that is upon or beneath it.160 In one sense, "land" is a narrower and more restricted term than "real estate," and means the solid part of the earth's surface. Correspondingly, "real estate" is a broader term than "land," and includes the land and improvements on the land.161 In a general sense, however, "land" is synonymous with "real property," and the Colorado statutes treat "land" and "real estate" as being synonymous.162 C.R.S. § 38-30-150 provides:

As used in articles 30 to 44 (except part 2 of article 41) of this title and part 4 of article 61 of title 12, C.R.S., unless the context otherwise requires:
. . .
(2) "Land" and "real estate" shall be construed as coextensive in meaning with the terms "land," "tenements," and "hereditaments" and as embracing all mining claims and other claims, and chattels real.

The phrase "rents, issues, and profits" refers to the products of the land, the annual rentals, the income derived therefrom, whether in money or in products, but does not include proceeds from an installment land sale contract.163 In the article dealing with the liability of owners of recreational areas, i.e., "an owner of land who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes," the term "land" means

real property, or a body of water and the real property appurtenant thereto, or real property that was subject to mining operations under state or federal law and that has been abandoned or left in an inadequate reclamation status prior to August 3, 1977, for coal mining operations, or July 1, 1976, for hard rock mining operations, which is leased to a public entity or for which an easement or other right is granted to a public entity for recreational purposes or for which the landowner has acquiesced to public use of existing trails that have historically been used by the public for recreational purposes. "Land", as used in this subsection (2), does not include real property, buildings, or portions thereof which are not the subject of a lease, easement, or other right of use granted to a public entity; except that land on which a landowner has acquiesced to public use of existing trails that have historically been used by the public for recreational purposes need not be subject to a lease, easement, or other right of use granted to a public entity.164

As used in the article dealing with the liability of owners of recreational areas, "land" also means "roads, water, watercourses, private ways, and buildings, structures, and machinery or equipment thereon, when attached to real property."165

Land underlying non-navigable streams is the subject of private ownership166 and is vested in the proprietors of the adjoining lands.167

The statute concerning the State Board of Land Commissioners' investment in real property defines "land" as "any ground, soil, water, real property, commercial real property, minerals, mineral resources, or earth whatsoever."168

The term "real property" is further defined as "buildings, structures, fixtures, and improvements on land, and every estate, interest, privilege, tenement, easement, right-of-way, and other right in land, legal or equitable, including leasehold interests."169

The term "commercial real property" is further defined as "real property intended to generate income either from capital gain or rental income, such as office buildings."170

The term "minerals or mineral resources" is further defined as:

any valuable inert or lifeless substance formed or deposited in its present position through natural agencies and which is found either in or on the soil or rock of the earth, including without limitation those commodities subject to regulation under articles 32, 32.5, 33, and 60 of title 34, C.R.S., including but not limited to oil, gas, coal, sand, gravel and other minerals.171

§ 2.4.2—Public Land

Occupancy of public land possesses the legal character of real estate.172 Upon the issuance of a receiver's receipt, the person to whom the receipt runs is vested with a title he or she can convey.173

§ 2.4.3—Minerals

Until severance of the surface and mineral estates, the ownership of the surface carries with it the ownership of the underlying minerals174 and a conveyance of the land includes the minerals.175 The severance of the surface and mineral estates creates two separate freehold estates.176 The ownership of the mineral estate is as much a property right as is the ownership of the surface estate.177

For general property tax purposes, the term "real property" includes "[a]ll mines, quarries, and minerals in and under the land, and all rights and privileges thereunto appertaining."178

Ore that has been mined is personal property.179

§ 2.4.4—Pore Space

The disfavor in which carbon-based fuels (coal, oil, natural gas, wood, etc.) is held in some quarters has led to schemes whereby carbon emissions would be captured and "sequestered" in geological formations. This immediately raises the question of "pore space ownership," i.e., who owns the subsurface pore space.180 Pore space is "the space within a rock body that is unoccupied by solid material. Pore space includes space between grains, fissures, vesicles, and voids formed by dissolution. Pore space is often occupied by water."181 Pore space would seem clearly to be a part of the surface estate.182

§ 2.4.5—Mining Claims

An unpatented mining claim, perfected under the mining law, is "property in the highest sense of the term, which may be bought, sold, and conveyed, and will pass by descent."183 An interest in an unpatented mining claim is an interest in real property.184 Although the paramount title is in the United States, the courts have recognized such interest as a freehold; and in all controversies between the owner and other persons as to any right or claim therein, the owner is treated as the owner in fee.185

A tunnel site186 and a partially developed tunnel have been held to be "mining property" under Section 175 of the former Code of Civil Procedure, which gave courts power to grant affirmative relief restoring to a person any mining property from which he or she has been ousted by fraud, etc.187

§ 2.4.6—Mine Dumps and Tailings188

Waste dumps or tailings or slag piles deposited on the surface of the earth adhere to and become appurtenant to the land, and ordinarily belong to the owner of the fee. However, the owner of the waste dumps or tailings or slag piles may treat and deal with them as personal property, which may be sold or delivered as any other personal property susceptible of manual delivery, even after the materials have become part of the realty.189 When tailings are permitted to pass by stream or seepage onto land owned by another, they become an accretion to that land and belong to the owner of that land. In the absence of an express or implied agreement to the contrary, material removed from a mine and dumped or placed on the land of another will be regarded as appurtenant to the land on which it is dumped,190 but the owner of the land on which it is dumped and the owner of the dump may agree that it shall be regarded as personal property.191

§ 2.4.7—Royalties

The ordinary meaning of the term "royalty" as applied to an existing oil and gas lease is the compensation provided in the lease for the privilege of drilling for and producing oil and gas, and consists of a share of the oil and gas produced or the profits therefrom.192 A royalty (including an overriding royalty) is an interest in real property,193 and therefore it is itself real property.194 But when an overriding royalty payment becomes due, it becomes a debt, and therefore personal property.195 A royalty payable in kind is a tangible interest in real property,196 while a royalty payable in cash is an intangible interest in real property.197

§ 2.4.8—Ownership Above or Below the Surface

Land has an indefinite extent upward and downward from the surface of the earth and therefore includes whatever may be erected upon it, and whatever may lie in a direct line between the surface and the center of the earth.198

At common law, the person who owns the surface has the exclusive right to everything that is above it199 or below it ("cujus est solum, ejus est usque ad coelum et ad inferos"). This fundamental rule of property has been recognized by statute. C.R.S. § 41-1-107 provides:

The ownership of space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight of aircraft.200

Thus, ownership of the bed of a non-navigable stream vests in the owner the exclusive right of control of everything above the stream bed, subject only to constitutional and statutory limitations.201

Since Congress has placed navigable airspace in the public domain, the surface owner's property interest in airspace above the land is generally limited to that airspace which is below navigable limits.202

Estates, rights, and interests in areas above the surface of the ground, whether or not contiguous thereto, may be created in persons or corporations other than the owners of the land below such areas, and are deemed to be estates, rights, and interests in lands.203 The law applicable to land generally is applicable to areas above the surface of the ground.204 Accordingly, the Colorado Condominium Ownership Act205 recognizes condominium ownership, which is deemed to consist of a separate estate in an individual airspace unit of a multi-unit property together with an undivided interest in common elements.206 Similarly, the Colorado Common Interest Ownership Act provides that in a condominium or planned community with common elements, each unit, together with its interest in the common elements, consists for all purposes of a separate parcel of real estate.207

§ 2.4.9—Water and Water Rights

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