To be sure, a grantor can reserve or except a mineral estate by using "clear and distinct wording in the conveyance." Radke v. Union Pac. R.R. Co., 138 Colo. 189, 334 P.2d 1077, 1088 (1959); see also Moeller v. Ferrari Energy, LLC, 2020 COA 113, ยถ 16, 471 P.3d 1258, 1262 ("A conveyance of real property, which is generally defined and designated in the deedโs granting clause, passes all title to the land and the underlying mineral deposits, except those interests explicitly held back.").
ยถ 30 We are unpersuaded by these contentions because they conflate any benefit with benefits incident to ownership . See Radke v. Union Pac. Ry. Co. , 138 Colo. 189, 198-99, 334 P.2d 1077, 1082 (1959) (explaining the difference between language granting title to mineral reserves and language granting mere license to remove minerals from land). While it is undoubtedly true that petitioners benefit from holding deeds to Club Ranches, and that they even benefit from the deed restrictions, which protect their ability to access the whole undeveloped grounds for hunting and fishing, those rights nevertheless amount to mere license to use Club property, not fee ownership.
Indeed, the Village admits in its briefs that, once it bought the development rights, those rights โno longer represented a component of the value of the Treehouse common elements.โ Cf. Radke v. Union Pac. R.R. Co., 138 Colo. 189, 209, 334 P.2d 1077, 1088 (1959) (indicating that severance of surface and mineral estates must be expressed by clear and distinct language of the conveyance). ยถ 18 Because the Village acquired interests in land, taxation of the development rights was required under sections 39โ1โ102(16) and 39โ1โ102(14)(a).
The district judge said that his "legal conclusion" was that the licenses granted by Sola Salon were not interests in real property. The judge cited Radke v. Union Pacific Railroad Co., 334 P.2d 1077, 1086 (1959), and Welsch v. Smith, 113 P.3d 1284, 1289 (Colo. Ct. App. 2005), as authority for the general rule in Colorado that a license is not an interest in property but rather a personal and "ordinarily revocable privilege" that may be conferred either in writing or by parol.
This holding is consistent with the holding of the vast majority of decisions which have considered the matter. Apparently the only exception is the opinion of the Colorado Supreme Court in Radke v. Union Pacific Railroad Co., 138 Colo. 189, 334 P.2d 1077 (1959), where the court considered a similar reservation, but one which did not go to the successors, grantees, or assigns. The Section 5 reservation has no time restriction, is an exclusive right, without limitations or conditions.
The Court based its ruling on cases holding that licenses are not interests in real property under Colorado law. See Docket No. 105 at 5-6, 44 (citing Radke v. Union Pacific R. Co., 334 P.2d 1077, 1086 (Colo. 1959); Welsch v. Smith, 113 P.3d 1284, 1289 (Colo. App. 2005); American Coin-Meter of Colo. Springs v. Poole, 503 P.2d 626, 627 (Colo. App. 1972)). The Trustee does not provide any contrary authority; rather, she contends that these cases are inapplicable because they only address whether licenses are interests in real property. The relevant question here, according to the Trustee, is whether the licenses were interests in this particular lease.
A license is merely a permit or privilege to do what otherwise would be unlawful. While it has been regarded, for some purposes, as a valuable property right, strictly speaking, a license is not property or a property right; nor does it create a vested right. Radke v. Union Pacific Railroad Company, 138 Colo. 189, 334 P.2d 1077, 1087 (1959); Palmetto Fire Insurance Company v. Beha, 13 F.2d 500 (D.C.N Y 1926). A licensee is one who has mere permission to use the land, with no interest in or exclusive possession of the land since the licensor retains complete dominion over the land. Seabloom v. Krier, 219 Minn. 362, 367, 18 N.W.2d 88, 91 (1945); 1 TIFFANY, REAL PROPERTY, ยง 79. (3d ed. 1939).
See Smith v. Moore, 172 Colo. 440, 441-43, 474 P.2d 794, 795 (1970) (holding that mineral estate owner owed a duty of surface support); Mitchell v. Espinosa, 125 Colo. 267, 273-74, 243 P.2d 412, 413 (1952) (holding that the habendum clause of the deed created a reservation for oil and gas); Calvat v. Juhan, 119 Colo. 561, 566, 206 P.2d 600, 603 (1949) (holding that a reservation of oil, gas, and mineral rights precluded possession of the severed mineral estate by the surface possessor); cf. Radke v. Union Pac. R.R. Co., 138 Colo. 189, 209, 334 P.2d 1077, 1087 (1958) (holding that language referring to prospecting did not reserve a mineral interest). The word "mineral" can be used in different senses, depending upon the context.
See Notch Mountain Corp., 898 P.2d at 557; O'Brien v. Village Land Co., 794 P.2d 246, 249 (Colo. 1990); Radke v. Union Pacific R.R., 138 Colo. 189, 209, 334 P.2d 1077, 1088 (1958). A thorough examination of our case law reveals, however, that we have not always applied a rigid "four corners" approach to interpreting a deed.
We have long recognized that a conveyance which severs a mineral interest from the surface estate creates a separate and distinct estate. See, e.g., Radke v. Union Pac. R. Co., 138 Colo. 189, 334 P.2d 1077 (1959); Mitchell v. Espinosa, 125 Colo. 267, 243 P.2d 412 (1952). Owners of a severed interest, whether minerals or surface, are therefore free to separately convey their interests.