granting clause in Colorado

2020Land Co., 794 P.2d 246, 249-51 (Colo. 1990))) (emphasis added). ¶ 21 In light of our conclusion that the language here is unambiguous, we need not engage in further examination of the surrounding circumstances.

2015In O'Brien, the supreme court noted that [tlhe purpose of a granting clause is to define and designate the estate conveyed[,] [while al covenant of general warranty, on the other hand, is a guarantee that the grantor is vested of an estate in fee simple with full power to convey, that the property is free of all encumbrances except as listed in the deed, and that the grantor will guarantee title and peaceful possession and will defend the grantee's title to the property. ‘ Id. at 251 (citation omitted).

2015That indeed was the common law view endorsed by the supreme court in Million v. Botefur, 90 Colo. 343, 345 , 9 P.2d 284, 284 (1932).

2009See Mil- *579 Kon v. Botefur, 90 Colo. 348, 345 , 9 P.2d 284, 284 (1982) (clear unequivocal language in a granting clause controls contradictory terms in other clauses); Millage v. Churchill, 69 Colo. 457, 460-61 , 195 P. 107, 109 (1921) (granting clause controls); see also Hruby v. Wayman, 230 Towa 658, 298 N.W. 639, 640-41 (Iowa 1941) (covenants do not control the granting clause}.

2021Comm’rs, 214 P.3d 574, 577-78 (Colo. App. 2009) (stating that interpretation of a deed is a question of law and the granting clause controls the nature of the interest conveyed). ¶ 22 However, the parties disagree as to what law applies.

2015Comm'rs, 214 P.3d 574, 578 (Colo.App.2009), a habendum clause may also de-seribe the nature of the interest conveyed; . a habendum clause may define, explain, or qualify the premises described in a granting clause, see, eg., Claridge v. Phelps, 105 Ind. App. 344 , 11 N.E.2d 503, 504 (1937) ("The premises of a deed are often expressed in general terms, admitting of various explanations in a subsequent part of the deed.

2013Comm'rs v. Morris, 147 Colo. 1 , 7, 362 P.2d 202 , 205 (1961) ; Lincoln Sav. & Loan Ass'n v. State, 768 P.2d 733 , 735 (Colo.App.1988) ("[D]eeds which in the granting clause convey a right-of-way over, across, or upon certain lands devolve a right only, and are generally construed as creating an easement.").

1988See Board of County Commissioners v. Morris, 147 Colo. 1 , 362 P.2d 202 (1961); Farmers Reservoir & Irrigation Company v. Sun Production Company, 721 P.2d 1198 (Colo.App.1986).

2013Comm'rs v. Morris, 147 Colo. 1 , 7, 362 P.2d 202 , 205 (1961) ; Lincoln Sav. & Loan Ass'n v. State, 768 P.2d 733 , 735 (Colo.App.1988) ("[D]eeds which in the granting clause convey a right-of-way over, across, or upon certain lands devolve a right only, and are generally construed as creating an easement.").

1991See Hutson v. Agricultural Ditch & Reservoir Co., 723 P.2d 736, 739 (Colo.1986) ("In the absence of additional descriptive language, ‘right-of-way,’ when used to describe an ownership interest in real property, is traditionally construed to be an easement.”); Lincoln Savings and Loan Association v. State, 768 P.2d 733, 735 (Colo.App.1988) ("deeds which in the granting clause convey a right-of-way over, across, or upon certain lands devolve a right only, and are generally construed as creating an easement.”). 15 .

2013Comm'rs v. Morris, 147 Colo. 1 , 7, 362 P.2d 202 , 205 (1961) ; Lincoln Sav. & Loan Ass'n v. State, 768 P.2d 733 , 735 (Colo.App.1988) ("[D]eeds which in the granting clause convey a right-of-way over, across, or upon certain lands devolve a right only, and are generally construed as creating an easement.").

1988See Board of County Commissioners v. Morris, 147 Colo. 1 , 362 P.2d 202 (1961); Farmers Reservoir & Irrigation Company v. Sun Production Company, 721 P.2d 1198 (Colo.App.1986).

2020No. 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.

2015See id. at 274 , 243 P.2d at 415 . 2 T19 This evolution in the law has occurred in other jurisdictions as well, Seq, eg., In re Fleck's Estate, 261 Iowa 434 , 154 N.W.2d 865, 868 (1967) ("The modern rule, and the one we have adopted, is to construe the whole instrument without reference to the formal divisions in order to effectuate, if possible, the grantor's intent.") (citations omitted); State v. Hess, 684 N.W.2d 414, 423 (Minn.2004) (A court must "read the granting and habendum clauses together 'in order to arrive at the true intention, even to the extent of allowing the habendum to qualif

2015See id. at 274 , 243 P.2d at 415 . 2 T19 This evolution in the law has occurred in other jurisdictions as well, Seq, eg., In re Fleck's Estate, 261 Iowa 434 , 154 N.W.2d 865, 868 (1967) ("The modern rule, and the one we have adopted, is to construe the whole instrument without reference to the formal divisions in order to effectuate, if possible, the grantor's intent.") (citations omitted); State v. Hess, 684 N.W.2d 414, 423 (Minn.2004) (A court must "read the granting and habendum clauses together 'in order to arrive at the true intention, even to the extent of allowing the habendum to qualif

2015Eq. 435 , 58 A.2d 89, 96 (N.J.

2015Comm'rs, 214 P.3d 574, 578 (Colo.App.2009), a habendum clause may also de-seribe the nature of the interest conveyed; . a habendum clause may define, explain, or qualify the premises described in a granting clause, see, eg., Claridge v. Phelps, 105 Ind. App. 344 , 11 N.E.2d 503, 504 (1937) ("The premises of a deed are often expressed in general terms, admitting of various explanations in a subsequent part of the deed.

2015Comm'rs, 214 P.3d 574, 578 (Colo.App.2009), a habendum clause may also de-seribe the nature of the interest conveyed; . a habendum clause may define, explain, or qualify the premises described in a granting clause, see, eg., Claridge v. Phelps, 105 Ind. App. 344 , 11 N.E.2d 503, 504 (1937) ("The premises of a deed are often expressed in general terms, admitting of various explanations in a subsequent part of the deed.

2015See id. at 274 , 243 P.2d at 415 . 2 T19 This evolution in the law has occurred in other jurisdictions as well, Seq, eg., In re Fleck's Estate, 261 Iowa 434 , 154 N.W.2d 865, 868 (1967) ("The modern rule, and the one we have adopted, is to construe the whole instrument without reference to the formal divisions in order to effectuate, if possible, the grantor's intent.") (citations omitted); State v. Hess, 684 N.W.2d 414, 423 (Minn.2004) (A court must "read the granting and habendum clauses together 'in order to arrive at the true intention, even to the extent of allowing the habendum to qualif

2015See id. at 274 , 243 P.2d at 415 . 2 T19 This evolution in the law has occurred in other jurisdictions as well, Seq, eg., In re Fleck's Estate, 261 Iowa 434 , 154 N.W.2d 865, 868 (1967) ("The modern rule, and the one we have adopted, is to construe the whole instrument without reference to the formal divisions in order to effectuate, if possible, the grantor's intent.") (citations omitted); State v. Hess, 684 N.W.2d 414, 423 (Minn.2004) (A court must "read the granting and habendum clauses together 'in order to arrive at the true intention, even to the extent of allowing the habendum to qualif

2015Ass'n, 120 Ky. 413 , 86 S.W. 1111, 1112 (1905) ("[Rleservations or exceptions are enforced, although contained in the habendum clause of the deed, as fully as if set out in the granting clause, when on the whole instrument the intention of the parties is sufficient ly expressed to be enforced."); Price v. Johnson, 78 N.M. 123 , 428 P.2d 978, 980-81 (1967) (recognizing that "where a deed is susceptible to alternative construction, the construction most favorable to the grantee will be adopted," but still finding that in light of "the modern rule" the reservation in the habendum at issue was not

2015Ass'n, 120 Ky. 413 , 86 S.W. 1111, 1112 (1905) ("[Rleservations or exceptions are enforced, although contained in the habendum clause of the deed, as fully as if set out in the granting clause, when on the whole instrument the intention of the parties is sufficient ly expressed to be enforced."); Price v. Johnson, 78 N.M. 123 , 428 P.2d 978, 980-81 (1967) (recognizing that "where a deed is susceptible to alternative construction, the construction most favorable to the grantee will be adopted," but still finding that in light of "the modern rule" the reservation in the habendum at issue was not

2015See id. at 274 , 243 P.2d at 415 . 2 T19 This evolution in the law has occurred in other jurisdictions as well, Seq, eg., In re Fleck's Estate, 261 Iowa 434 , 154 N.W.2d 865, 868 (1967) ("The modern rule, and the one we have adopted, is to construe the whole instrument without reference to the formal divisions in order to effectuate, if possible, the grantor's intent.") (citations omitted); State v. Hess, 684 N.W.2d 414, 423 (Minn.2004) (A court must "read the granting and habendum clauses together 'in order to arrive at the true intention, even to the extent of allowing the habendum to qualif

2015See id. at 274 , 243 P.2d at 415 . 2 T19 This evolution in the law has occurred in other jurisdictions as well, Seq, eg., In re Fleck's Estate, 261 Iowa 434 , 154 N.W.2d 865, 868 (1967) ("The modern rule, and the one we have adopted, is to construe the whole instrument without reference to the formal divisions in order to effectuate, if possible, the grantor's intent.") (citations omitted); State v. Hess, 684 N.W.2d 414, 423 (Minn.2004) (A court must "read the granting and habendum clauses together 'in order to arrive at the true intention, even to the extent of allowing the habendum to qualif

2015Terms are ambiguous when they are susceptible of more than one reasonable interpretation." Allen v. Reed, 155 P.3d 443, 445 (Colo.App.2006). 17 The interpretation of a deed and the determination of whether it is ambiguous are questions of law subject to de novo review by this court, See Littlehorn v. Stratford, 653 P.2d 1139 , 1144 n. 6 (Colo.1982); Terry, 892 P.2d at 393 . 118 The Furrow Defendants assert that, where the provisions of a "granting clause" and those of "a warranty (or habendum) clause" conflict, the provisions of the granting clause (here, reserving no mineral interests) must p

2015See id. at 274 , 243 P.2d at 415 . 2 T19 This evolution in the law has occurred in other jurisdictions as well, Seq, eg., In re Fleck's Estate, 261 Iowa 434 , 154 N.W.2d 865, 868 (1967) ("The modern rule, and the one we have adopted, is to construe the whole instrument without reference to the formal divisions in order to effectuate, if possible, the grantor's intent.") (citations omitted); State v. Hess, 684 N.W.2d 414, 423 (Minn.2004) (A court must "read the granting and habendum clauses together 'in order to arrive at the true intention, even to the extent of allowing the habendum to qualif

2015See id. at 274 , 243 P.2d at 415 . 2 T19 This evolution in the law has occurred in other jurisdictions as well, Seq, eg., In re Fleck's Estate, 261 Iowa 434 , 154 N.W.2d 865, 868 (1967) ("The modern rule, and the one we have adopted, is to construe the whole instrument without reference to the formal divisions in order to effectuate, if possible, the grantor's intent.") (citations omitted); State v. Hess, 684 N.W.2d 414, 423 (Minn.2004) (A court must "read the granting and habendum clauses together 'in order to arrive at the true intention, even to the extent of allowing the habendum to qualif

2015Ass'n, 120 Ky. 413 , 86 S.W. 1111, 1112 (1905) ("[Rleservations or exceptions are enforced, although contained in the habendum clause of the deed, as fully as if set out in the granting clause, when on the whole instrument the intention of the parties is sufficient ly expressed to be enforced."); Price v. Johnson, 78 N.M. 123 , 428 P.2d 978, 980-81 (1967) (recognizing that "where a deed is susceptible to alternative construction, the construction most favorable to the grantee will be adopted," but still finding that in light of "the modern rule" the reservation in the habendum at issue was not

2015Ass'n, 120 Ky. 413 , 86 S.W. 1111, 1112 (1905) ("[Rleservations or exceptions are enforced, although contained in the habendum clause of the deed, as fully as if set out in the granting clause, when on the whole instrument the intention of the parties is sufficient ly expressed to be enforced."); Price v. Johnson, 78 N.M. 123 , 428 P.2d 978, 980-81 (1967) (recognizing that "where a deed is susceptible to alternative construction, the construction most favorable to the grantee will be adopted," but still finding that in light of "the modern rule" the reservation in the habendum at issue was not

2009See Mil- *579 Kon v. Botefur, 90 Colo. 348, 345 , 9 P.2d 284, 284 (1982) (clear unequivocal language in a granting clause controls contradictory terms in other clauses); Millage v. Churchill, 69 Colo. 457, 460-61 , 195 P. 107, 109 (1921) (granting clause controls); see also Hruby v. Wayman, 230 Towa 658, 298 N.W. 639, 640-41 (Iowa 1941) (covenants do not control the granting clause}.

2009See Mil- *579 Kon v. Botefur, 90 Colo. 348, 345 , 9 P.2d 284, 284 (1982) (clear unequivocal language in a granting clause controls contradictory terms in other clauses); Millage v. Churchill, 69 Colo. 457, 460-61 , 195 P. 107, 109 (1921) (granting clause controls); see also Hruby v. Wayman, 230 Towa 658, 298 N.W. 639, 640-41 (Iowa 1941) (covenants do not control the granting clause}.

2009See Mil- *579 Kon v. Botefur, 90 Colo. 348, 345 , 9 P.2d 284, 284 (1982) (clear unequivocal language in a granting clause controls contradictory terms in other clauses); Millage v. Churchill, 69 Colo. 457, 460-61 , 195 P. 107, 109 (1921) (granting clause controls); see also Hruby v. Wayman, 230 Towa 658, 298 N.W. 639, 640-41 (Iowa 1941) (covenants do not control the granting clause}.

2009See Mil- *579 Kon v. Botefur, 90 Colo. 348, 345 , 9 P.2d 284, 284 (1982) (clear unequivocal language in a granting clause controls contradictory terms in other clauses); Millage v. Churchill, 69 Colo. 457, 460-61 , 195 P. 107, 109 (1921) (granting clause controls); see also Hruby v. Wayman, 230 Towa 658, 298 N.W. 639, 640-41 (Iowa 1941) (covenants do not control the granting clause}.

2008See, e.g., Proctor, 32 Colo.App. at 104-05 , 506 P.2d at 1237-38 .

2008See, e.g., Proctor, 32 Colo.App. at 104-05 , 506 P.2d at 1237-38 .

2006“A person named in the granting clause of the deed as the sole [] grantee, must be so held, unless other provisions in the deed clearly express an intent to the contrary, so as to write effectually into such granting clause the names of other persons as cograntees.” Raber v. Lohr, 163 Colo. 485, 490 , 431 P.2d 770, 773 (1967)(quoting 26 C.J.S.

2006“A person named in the granting clause of the deed as the sole [] grantee, must be so held, unless other provisions in the deed clearly express an intent to the contrary, so as to write effectually into such granting clause the names of other persons as cograntees.” Raber v. Lohr, 163 Colo. 485, 490 , 431 P.2d 770, 773 (1967)(quoting 26 C.J.S.

1991See Hutson v. Agricultural Ditch & Reservoir Co., 723 P.2d 736, 739 (Colo.1986) ("In the absence of additional descriptive language, ‘right-of-way,’ when used to describe an ownership interest in real property, is traditionally construed to be an easement.”); Lincoln Savings and Loan Association v. State, 768 P.2d 733, 735 (Colo.App.1988) ("deeds which in the granting clause convey a right-of-way over, across, or upon certain lands devolve a right only, and are generally construed as creating an easement.”). 15 .

1990See e.g., United States v. McKenzie County, 187 F.Supp. 470 (D.N.D.1960), affd sub nom.

1975The granting clause of the deed contained the following language: “ ‘Reserving to said Company, and its assigns, the right-of-way for said railway is now located on the premises, 400 feet in width, being 200 feet on each side from center of the track.’ *340 “The result of this case depends on the extent of the interest retained by the Denver Pacific in the deed to Duff.” 525 P.2d at 481 (footnotes omitted).