Under the deed of December 30, 1937, W.S.F. Tatum took all minerals except hydrocarbons, which were exclusively reserved to Hibernia; and the terms of the deed are so express and explicit that thereasto this Court may not construe, but must confirm Tatum's title. Beasley v. Beasley, 177 Miss. 522, 171 So. 680; Bradley v. Howell, 161 Miss. 346, 134 So. 843; Cole v. McDonald, 236 Miss. 168, 109 So.2d 628; Dunbar v. Aldrich, 79 Miss. 698, 31 So. 341; Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Evans v. City of Jackson, 202 Miss. 9, 30 So.2d 315; Fatheree v. McCormick, 188 Miss. 248, 24 So.2d 724; Ginsberg Sons v. Popkin, 285 U.S. 204, 76 L.Ed. 704; Harvey v. Johnson, 111 Miss. 566, 71 So. 824; McAllister v. Honea, 71 Miss. 256, 14 So. 264; Rouse v. Sisson, 190 Miss. 276, 199 So. 777; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296; Texaco Co. v. Newton Naval Stores Co., 223 Miss. 468, 78 So.2d 751; Westbrook v. Ball, 222 Miss. 788, 77 So.2d 274; Witherspoon v. Campbell, 219 Miss. 640, 69 So.2d 284; 42 C.J.S. 373; 58 C.J.S., Mines and Minerals, Sec. 2(b)(4)(c) p. 23; 66 C.J.S. 607; Black's Law Dictionary 913; Broom, Legal Maxims, 594; 1A Summers, Oil and Gas (perm. ed.), Sec. 135 p. 263; Webster's New International Dictionary (2d ed.) unabridged, 440, 1833. II. Said deed, appropriately construed, vested title in Tatum to all minerals except hydrocarbons.
I. The Court erred in holding that bentonite was included in that which is reserved in a deed which reserves to the grantor in this manner — "Half of all mineral rights reserved." Cole v. McDonald, 236 Miss. 168, 109 So.2d 628; Witherspoon v. Campbell, 219 Miss. 640, 69 So.2d 384. Robert D. Patterson, Richard B. Booth, Aberdeen, for appellee. I. Bentonite is included within the plain and simple language of the mineral reservation which is the subject of this law suit, and the rule announced in the case of Witherspoon v. Campbell is not in conflict with the case at bar.
The doctrine of ejusdem generis applies only when the contract is found to be ambiguous. Yazoo Properties v. Katz Besthoff No. 284, Inc., 644 So.2d 429, 432 (Miss. 1994) (citing Cole v. McDonald, 236 Miss. 168, 109 So.2d 628 (1959)). Here, the trial judge correctly found that the conflict between the specific agreement between the Commission and Adams and the Red Book provision incorporated by reference results in ambiguity.
"Under the doctrine of 'ejusdem generis,' where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated." Rhoden v. State Farm Fire Cas. Co., 32 F.Supp.2d 907, 912 (S.D.Miss. 1998) (citing Cole v. McDonald, 236 Miss. 168, 109 So.2d 628, 637 (1959)), aff'd, 200 F.3d 815 (5th Cir. 1999) (table). Although First American Title has strenuously disavowed the inclusion of the UCC-1s, in the end their inclusion does not make as great a difference as one might suppose.
The word, if broadly construed, would include gravel. Highland v. Commonwealth of Pennsylvania, 400 Pa. 261, 161 A.2d 390, 398; Cole v. McDonald, 236 Miss. 168, 109 So.2d 628, 635; Kalberer v. Grassham, 282 Ky. 430, 138 S.W.2d 940, 942; 58 C.J.S. Mines and Minerals § 2, p. 17; Holloway Gravel Co. v. McKowen, 200 La. 917, 9 So.2d 228, 231. Northern Pacific Railway v. Soderberg, 188 U.S. 526, 530, 23 S.Ct. 365, 47 L.Ed. 575; Highland v. Commonwealth of Pennsylvania, 400 Pa. 261, 161 A.2d 390, 398.
Next, using "ejusdem generis", the insureds asserted that "where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated." Rhoden, 32 F. Supp.2d at 912 (citing Cole v. McDonald, 236 Miss. 168, 186, 109 So.2d 628, 637 (Miss. 1959)). The insureds further urged that "the Court . . . interpret the exclusion only to include earth movement of either an earthquake, landslide, mudflow, sinkhole, subsidence or erosion, and not earth movement of any other type or manifestation."
Under the doctrine of "ejusdem generis," where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. Cole v. McDonald, 236 Miss. 168, 186, 109 So.2d 628, 637 (1959). Under such a construction, as urged by Plaintiff, the Court would interpret the exclusion only to include earth movement of either an earthquake, landslide, mudflow, sinkhole, subsidence or erosion, and not earth movement of any other type or manifestation.
Without doubt, bentonite is a "mineral". Cole v. McDonald, 236 Miss. 168, 109 So.2d 628 (1959) (a Monroe County case). Despite Dahlem's discovery, his first efforts to arouse interest in the new material were unsuccessful.
The rule of ejusdem generis is that "`where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.'"Cole v. McDonald, 109 So. 2d 628, 637 (Miss. 1959) (quoting 59 C.J. 981); see Kan. City S. Ry. Co. v. McNamara, 817 F.2d 368, 372 n. 5 (5th Cir. 1987); Estate of Short v. Commissioner, 68 T.C. 184, 193 n. 6 (1977). As the Mississippi Supreme Court stated long ago: This rule, of course, excludes the suggestion that the mere use of general words is sufficient to indicate a purpose to include matters not ejusdem generis.
In Mississippi, the doctrine of ejusdem generis applies only when a contract is ambiguous. Yazoo Properties v. Katz Besthoff No. 284, Inc., 644 So.2d 429, 432 (Miss. 1994); Cole v. McDonald, 109 So.2d 628, 637 (Miss. 1959). Accordingly, the Wong v. Beneficial Sav. and Loan Ass'n. rationale, cited by the Mississippi Supreme Court in Merchants National Bank v. Stewart, does not apply to the contract language that is the focus of this proceeding.