Doctrine, Continued from page 89
Rule" are acceptable to the Arkansas Supreme Court.
In my opinion, Judge Miller was clearly in error when he did not find oil and gas to be included within the term "other minerals" in the Middleton case. He discussed in his opinion various legal documents which were of record in 1904. and which clearly demonstrated the legal community's knowledge of oil and gas, and which recited consideration indicating a commercial traffic in such minerals. In view of this, and his specific finding that the "business community" considered oil and gas to be minerals, he should have reached an opposite conclusion from that which he reached. and the Eighth Circuit should not have affirmed him for the same reasons. The Eighth Circuit did affirm Judge Miller, however. so we must estimate the weight which may be given to the Middleton decision by courts in subsequent cases. It is my opinion that courts will not give great weight to the Middleton case because it so clearly departs from the standard laid down by the Arkansas Supreme Court in the Stegall and Ahne cases. The next case in the line of cases bearing on the Strohacker rule was Diamond Shamrock Oil and Gas Co. v. Commissioner of Revenues, et at, which was decided by Judge Williams of the Western District in 1969. This case involved three tracts of land in Logan County, Arkansas, under which the .... coal. oil and mineral .... was conveyed on July 21. 1905. August 5. 1905 and January 16. 1905. All three of the deeds were secured pursuant to options which had been secured from the owners of fee simple title by George Heim. who was the grantee in the deed involved in the Ahne case. The deed in the Ahne case was dated july 26. 1905. covering land three miles from the land involved in this case. and was executed on a form identical to that employed in connection with the three transactions described above. The Diamond Shamrock case arose as an interpleader action by Diamond Shamrock to determine whether gas royalties should be paid to the successor in title to the grantees under the three deeds described above, or to the surface owners under their claim that gas was not conveyed by the deeds. The owners of the interests created by said deeds moved for summary judgment contending that no triable issue of fact remained after the holding in the Ahne case that gas was commonly known and recognized by legal and commercial usage as a mineral in Logan County in 1906. Judge Williams sustained the motion for 9O/July 1975/Arkansas Lawyer
summary jUdgment saying that the Ahne case was dispositive of the issues, and that as to any conveyance of minerals in Logan County. Arkansas, SUbsequent to 1901 no ambiguity as to the meaning of the term is presented ... " The Court took ludicial knowledge of the fact that the lands involved in the in Diamond Shamrock case were" the same community ..." as those involved in the Ahne case. The court appears to have relied on the doctrine of "stare decisis" in so holding. To do so, the Court necessarily ruled that the prior decision in the Ahne case had, as a matter of law, disposed of this case, since stare decisis revolves around the presentation of the same legal problem in a later case involving different parties. An appeal was taken in the Diamond Shamrock case, but notice of appeal was filed prior to entry of judgment. although JUdge Williams had delivered a written opinion, and after briefs had been submitted and the case argued orally to the Eighth Circuit. the Eighth Circuit found that the premature notice of appeal had the effect of depriving it of jurisdiction to do more than remand the case to the Western District for further action. The Western District then entered judgment after remand. but no further appeal was taken. If a rUling of the type made by Judge Williams in this case is Ultimately sustained by reviewing authorities. another dimension will have been added to the Ahne case holding which prescribed "Logan County" as the area affected by the decision. The next case in the line of cases in路 volving the Strohacker rule was decided by Judge Miller of the Western District in March of 1971. The case of Mining Cor路 poration of Arkansas v. International Paper Co.. 324 F. Supp. 705, involved a reservation contained in a deed covering lands in Clark County, Arkansas, which was executed in 1911. The purported reservation was as follows: " ... also re路 serving all minerals, coal. oil and gas on said lands ... " The plaintiff claimed under said reservation that it owned the cinnabar and mercury under said lands. For reasons not pertinent to this discussion, the Court held that the entire reservation was ineffective, but the Court went on to say: .. Even if the reservation in the deed of "all minerals, coal, oil and gas,' should be considered as a valid reservation at the time, May 10, 1911, such reservation did not include cinnabar or mercury for the reason that under the law of Arkansas a reservation which used the term 'minerals' only includes those minerals known to exist in the area embraced in the deed at the time of the execution of the deed. and cinnabar or mercury was not known to exist at that time." The Court cited the Mothner, Middleton, Singleton and Strohacker cases
as authority for this holding. Here again, Judge Miller has shown a reluctance to adopt the Arkclilsas Supreme Court's standard as expressed in the Stegall and Ahne cases and we wonder what this finding would have been if the evidence had indicated that said minerals were "known to exist" in Arkansas in 1911. but no showing could be made that they were commonly recognized in legal and commercial usage as minerals at that time. The last case in the line of cases involving the Strohacker rule was decided by Judge Henley of the Eastern District in January of 1973. The case of Rosa Thomas, el al., v. Markham & Brown, Inc., et al., 353 F. Supp. 498, involving a reservation contained in a deed covering lands in Pulaski County, Arkansas, which was executed in 1953. The reser. One/Fourth vation was as follows: .. (1/4) of all oil. gas and mineral rights in and to said lands." The defendants who were grantees in the deed in question were quarrying and selling a form of granite known as pulaskite, and refused to account to the plaintiffs. who were grantors in said deed, for any portion of the proceeds. The plaintiffs brought suit contending that the mineral reservation in the deed extended to pulaskite. The defendants took two positions. First. they contended that pulaskite was not a mineral in the technical or scientific sense. Alternatively, they contended that. apart from any scientific characterization of pulaskite as a mineral, it was not generally considered to be a mineral in 1953 and that unde~ rUling Arkansas cases it did not fall within the terms of the reservation. The Court found that stone material such as pulas~ kite was not generally considered to be a mineral in 1953. and that a general reference to minerals or mineral rights in a deed or lease at that time would not have been understood in the commercial or legal usage as inclUding such stone. The Court cited the entire line of cases involved in the so-called Strohacker rule. He summarized the holdings of all of the cases in the following manner: "In construing a mineral grant or reservation in which the mention of specific minerals is followed by a general reference to 'other minerals' or 'mineral rights', the courts of Arkansas do not take a ejusdem generis approach which would limit the scope of the general language to minerals of the same generic class as those specifically mentioned. Rather, the question is treated as being one of fact and is to be answered ultimately by reference to the intent of the parties. It should be emphasized, however. that the intent with which the courts concern themselves is objective or presumed; it is not the subjective intent of either the grantor or