     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 23, 2020

                               2020COA113

    No. 18CA1844, Moeller v. Ferrari Energy, Inc. — Real
Property — Conveyances — Mineral Estates
     Plaintiffs initiated this action seeking to quiet title in a mineral

interest that was the subject of duplicative lease agreements. The

dispute originates in a warranty deed conveying a parcel of land but

reserving an undivided one-half interest in the mineral estate. The

interpretative challenge arises from the fact that one-half of the

estate had already been accounted for in a prior reservation. A

division of the court of appeals concludes that in light of the prior

reservation, the warranty deed is ambiguous because it is

susceptible of two interpretations: (1) that the warranty deed

conveyed to the grantees the half of the mineral estate that had not

previously been reserved; or (2) that the warranty deed reserved

one-half of the mineral estate to the grantors, in addition to the
previous reservation, leaving no portion of the mineral estate for the

grantees.

     J. Grove, specially concurring, would hold that the deed, by its

plain language, unambiguously conveyed one-half of the mineral

estate to the grantees.
COLORADO COURT OF APPEALS


Court of Appeals No. 18CA1844
Weld County District Court No. 17CV30252
Honorable Todd L. Taylor, Judge


Dana Moeller and Darrell Moeller,

Plaintiffs-Appellants and Cross-Appellees,

v.

Ferrari Energy, LLC, a Colorado limited liability company,

Defendant-Appellee and Cross-Appellant,

and

Susie Velasquez, as Public Trustee of Weld County,

Defendant.


                     JUDGMENT REVERSED AND CASE
                      REMANDED WITH DIRECTIONS

                                  Division V
                          Opinion by JUDGE HARRIS
                             Román, J., concurs
                          Grove, J., specially concurs

                           Announced July 23, 2020


Witwer, Oldenburg, Barry & Groom, LLP, Kent A. Naughton, Greeley, Colorado,
for Plaintiffs-Appellants and Cross-Appellees

Moye White LLP, Charles Greenhouse, Eric B. Liebman, Abigail L. Brown,
Denver, Colorado, for Defendant-Appellee and Cross-Appellant Ferrari Energy,
LLC

Bruce Barker, County Attorney, Greeley, Colorado, for Defendant-Appellee
Susie Velasquez, in her official capacity as Public Trustee of Weld County
¶1    Plaintiffs, Dana and Darrell Moeller, and defendant, Ferrari

 Energy, LLC,1 both assert that they are the owners of minerals

 located on property in Weld County, Colorado. The dispute arises

 from the relevant deed’s language reserving a “1/2 interest” in the

 minerals to the grantors. That language would not ordinarily

 present an interpretive challenge, but a predecessor grantor had

 already reserved a one-half interest in the minerals, so the grantors

 who conveyed the property to the Moellers’ predecessors-in-interest

 owned only a one-half interest to begin with.

¶2    The district court concluded that the warranty deed

 unambiguously reserved to the grantors, who are Ferrari’s

 predecessors-in-interest, a one-half interest in the minerals. And

 because the grantors only owned a one-half interest, there was no

 remaining interest to convey, and the Moellers ultimately received

 no interest in the minerals. Accordingly, the district court quieted

 title in the mineral interest in Ferrari.




 1 Susie Velasquez, in her official capacity as Public Trustee of Weld
 County, entered an appearance in the court of appeals but did not
 file a brief.

                                     1
¶3    On appeal, the Moellers contend that the district court

 misconstrued the warranty deed and therefore erred in entering

 judgment for Ferrari.

¶4    We conclude that the warranty deed is ambiguous. In our

 view, the language reserving to the grantors a one-half interest in

 the mineral estate is susceptible of two reasonable interpretations:

 (1) the grantors reserved a total one-half interest in the minerals

 and conveyed the other half to the Moellers’ predecessors-in-

 interest; or (2) the grantors reserved a one-half interest in the

 minerals for themselves, in addition to the prior grantor’s one-half

 interest, and thereby conveyed no interest in the minerals to the

 Moellers. These two interpretations remain equally plausible even

 after taking into account the limited extrinsic evidence of the

 parties’ intent. We therefore resolve the ambiguity by applying the

 longstanding rule of construction that ambiguities in a deed are

 construed in favor of the grantee. See Clevenger v. Cont’l Oil Co.,

 149 Colo. 417, 421, 369 P.2d 550, 552 (1962). Accordingly, we

 conclude that the warranty deed reserved a total of a one-half

 interest and granted a one-half interest to the Moellers.




                                    2
¶5    We therefore reverse the district court’s decree in quiet title

 and remand for entry of judgment in favor of the Moellers. In light

 of our disposition, we need not address the parties’ other claims of

 error.

                           I.    Background

             A.    The Relevant Conveyances and Leases

¶6    In 1954, Russell and Velma Burns conveyed to Ruth Todd the

 real property now owned by the Moellers, but expressly reserved

 “one-half of all oil, gas and minerals on and under said land” (the

 Burns reservation). Six years later, Todd conveyed the property to

 Glenn and Sally Wilson, subject only to the Burns reservation.

¶7    Then, in 1964 the Wilsons, who now owned the one-half

 mineral interest not reserved by the Burnses, sold the property to

 Pete and Mary Katzdorn. The warranty deed (1964 Deed) conveyed

 fee simple title to the real property “excepting and reserving to the

 Grantors herein an undivided 1/2 interest in and to all the oil, gas

 and minerals in, upon and under said land.”

¶8    The property was eventually conveyed to the Moellers, but the

 operative reservation remained the one in the 1964 Deed.




                                    3
¶9     In 2002, the Moellers entered into a mineral lease agreement

  with PDC Energy, Inc., and soon began receiving royalties. But in

  2016, PDC learned that the Wilsons might own the mineral interest,

  so it entered into a duplicative mineral lease agreement with the

  Wilsons. The Wilsons later conveyed any interest they had in the

  minerals to Ferrari and assigned to Ferrari the right to collect any

  royalty payments owed to them by PDC.

                         B.   Procedural History

¶ 10   The Moellers then filed this action, seeking to quiet title in the

  mineral interest. Ferrari asserted its own claim to the minerals and

  also sought royalty payments going back to 2002, from both the

  Moellers and PDC, under a theory of unjust enrichment.

¶ 11   The district court addressed ownership of the minerals on a

  motion for summary judgment. The court analyzed the conveyance

  in two parts — first determining the scope of the reservation, then

  determining the scope of the grant. In determining the scope of the

  reservation in the 1964 Deed, the court declined to consider

  extrinsic evidence of the Burns reservation. The court concluded

  that the language “excepting and reserving to the Grantors . . . an

  undivided 1/2 interest” unambiguously reserved to the Wilsons


                                     4
  their own one-half interest in the mineral estate, and thus extrinsic

  evidence was inadmissible to interpret the phrase. Nonetheless, the

  court then admitted the same extrinsic evidence to determine the

  interest granted to the Katzdorns. The court reasoned that because

  the Burnses had previously retained a one-half interest in the

  mineral estate, the Wilsons’ reservation of their own one-half

  interest meant they conveyed no portion of the mineral estate to the

  Katzdorns. The court thus quieted title in the minerals, as a matter

  of law, in Ferrari, the Wilsons’ successor-in-interest.

             II.   The District Court’s Decree in Quiet Title

¶ 12   The Moellers appeal the district court’s denial of PDC’s motion

  for summary judgment and the resulting decree in quiet title.2

  Specifically, the Moellers contend that the court erred in concluding

  that the 1964 Deed unambiguously reserved a one-half mineral

  interest to the Wilsons, conveying no portion of the mineral estate

  to the Katzdorns.




  2 Ferrari says that because PDC, not the Moellers, filed the motion
  for summary judgment, the Moellers may not challenge the district
  court’s summary judgment ruling. But that ruling formed the basis
  of the court’s decree in quiet title, which the Moellers may
  indisputably appeal.

                                     5
        A.   Standard of Review and Principles of Interpretation

¶ 13   We review de novo the interpretation of a deed, as well as the

  district court’s determination whether the deed is ambiguous.

  Owens v. Tergeson, 2015 COA 164, ¶ 17.

¶ 14   Deeds are usually construed in accordance with the general

  rules of construction of written instruments. Id. at ¶ 15. In

  accordance with those rules, if a deed is unambiguous, its terms

  must be enforced as written. Id. But if an ambiguity exists in the

  deed’s reservation of mineral rights, the construction “must favor

  the grantee.” Id.; see also Notch Mountain Corp. v. Elliott, 898 P.2d

  550, 557 (Colo. 1995) (“[A]ny ambiguities in a reservation are

  construed against the grantor.”); Clevenger, 149 Colo. at 421, 369

  P.2d at 552.

¶ 15   In determining whether an ambiguity exists in the first

  instance, we examine the instrument’s language, giving the words

  employed their plain and generally accepted meaning. Meyerstein v.

  City of Aspen, 282 P.3d 456, 468 (Colo. App. 2011). When the

  instrument is a deed, however, we interpret the language “in light of

  all the circumstances” surrounding the conveyance. Lazy Dog

  Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235-36 (Colo. 1998)


                                    6
  (quoting Restatement (Third) of Prop.: Servitudes § 4.1 cmt. c. (Am.

  Law Inst. 1994)). In other words, extrinsic evidence may be used to

  determine, as a threshold matter, whether the deed is ambiguous.

  Id. at 1236. If in light of extrinsic evidence the deed is

  unambiguous, the extrinsic evidence should then be disregarded as

  the court interprets the plain meaning of the deed. Id. If, however,

  extrinsic evidence reveals the deed is ambiguous, then the court

  may continue to use extrinsic evidence in discerning the parties’

  intent. Id. When an ambiguity persists despite the consideration of

  extrinsic evidence, the ambiguity is resolved in favor of the grantee.

  Bell Petroleum Co. v. Cross V. Cattle Co., 492 P.2d 80, 81 (Colo. App.

  1971) (not published pursuant to C.A.R. 35(f)).

                               B.   Analysis

¶ 16   A conveyance of real property, which is generally defined and

  designated in the deed’s granting clause, passes all title to the land

  and the underlying mineral deposits, except those interests

  explicitly held back. O’Brien v. Vill. Land Co., 794 P.2d 246, 249-51

  (Colo. 1990).

¶ 17   The 1964 Deed conveyed the real property, together with its

  appurtenances, “excepting and reserving to the Grantors herein an


                                     7
  undivided 1/2 interest in and to all the oil, gas and minerals in,

  upon and under said land,” but without any reference to the Burns

  reservation. The question is whether the 1964 Deed reserved a

  total of a one-half interest in the minerals and thereby conveyed the

  other one-half interest to the Katzdorns (in which case the Wilsons

  retained no mineral interest), or whether it reserved to the Wilsons

  a one-half interest along with the Burns reservation (in which case

  the Moellers received no mineral interest).

¶ 18   The district court acknowledged that the extrinsic evidence of

  prior conveyances created an ambiguity, but it declined to consider

  that evidence in construing the reservation clause, having already

  determined that the language was unambiguous as to what the

  Wilsons retained. We decline to adopt that approach. Because

  “circumstances surrounding the grant may be relevant to

  interpreting the language of the grant,” we may consider the

  extrinsic evidence of the Burns reservation in determining whether

  the 1964 Deed is ambiguous in the first instance. Lazy Dog, 965

  P.2d at 1236-37.

¶ 19   Terms in a deed are ambiguous when they are susceptible of

  more than one reasonable interpretation. Owens, ¶ 16; see also


                                    8
  Bledsoe v. Hill, 747 P.2d 10, 12 (Colo. App. 1987) (“An ambiguity is

  an uncertainty of the meaning of language used in a written

  instrument.”). We conclude that in light of the Burns reservation,

  which left the Wilsons with only a one-half interest in the minerals,

  the language of the 1964 Deed is ambiguous.

¶ 20   On the one hand, 1964 Deed could reasonably be interpreted

  to reserve a total of a one-half interest in the minerals, as the

  Moellers contend.

¶ 21   This interpretation is consistent with supreme court precedent

  concerning similar patterns of conveyances. In Brown v. Kirk, a

  bank conveyed property to the plaintiffs through a deed that

  “reserv[ed] unto the party of the first part, its successors and

  assigns, an undivided one-fourth of all oil, gas, and other minerals.”

  127 Colo. 453, 454, 257 P.2d 1045, 1045 (1953). The plaintiffs

  then conveyed the property to the grantees, “excep[t] one half of all

  oil, gas and mineral rights which parties of the first part reserve.”

  Id. (alteration in original). The supreme court concluded that the

  plaintiffs’ reservation clause — “one half of all oil, gas and mineral

  rights” — referred to one-half of the entire mineral estate, including

  the bank’s prior one-quarter reservation. See id. at 456-57, 257


                                     9
  P.2d at 1046-47. Therefore, the grantees received a one-half

  mineral interest, leaving the plaintiffs with only the remaining

  quarter-interest. Id.

¶ 22   The supreme court reached a similar conclusion when it

  interpreted the deed language at issue in O’Brien v. Village Land Co.

  In that case, the Ogren Estate conveyed to Village Land a piece of

  property, “RESERVING an undivided one-half interest in and to all

  oil, gas and other minerals.” O’Brien, 794 P.2d at 247. Through a

  deed filed shortly thereafter on the same day, Village Land conveyed

  the property to Henderson, also “RESERVING an undivided one-half

  interest in and to all oil, gas and other minerals.” Id. Finding the

  disputed conveyance analytically identical to the one at issue in

  Brown, the supreme court held that the Village Land-Henderson

  deed unambiguously reserved in total a one-half mineral interest,

  and thus the deed conveyed the remaining one-half interest to

  Henderson. Id. at 249-50, 252.

¶ 23   This interpretation also comports with the principle that a

  deed conveys all interests associated with real property except those

  explicitly reserved. 3 Am. Jur. 2d Deeds § 274, Westlaw (database




                                    10
  updated May 2020); see also 3 American Law of Mining § 82.01 (2d

  ed. 2020).

¶ 24   But in our view, neither that interpretive principle nor the

  precedent established by Brown and O’Brien compels a conclusion

  that the 1964 Deed is unambiguous. Rather, the 1964 Deed could,

  on the other hand, reasonably be interpreted to reserve a one-half

  interest in the minerals to the Wilsons, in addition to the one-half

  interest reserved by the Burnses.

¶ 25   That is true because we are bound, by equally well-settled

  principles of construction, to give effect to each word in the deed.

  See O’Brien, 794 P.2d at 249 (“[A] court must construe a deed so as

  to give effect to all of its provisions[.]”). The specific reservation “to

  the Grantors” suggests that the Wilsons intended to retain their

  own one-half interest, independent of the prior reservation. After

  all, the Burnses’ one-half interest could not be reserved to the

  Wilsons. To read the 1964 Deed as reserving a total of a one-half

  interest in the minerals would mean that the Wilsons reserved

  nothing to themselves, rendering the phrase “to the Grantors”

  meaningless. We avoid an interpretation of an agreement that




                                      11
  would nullify any of its terms or provisions. See Fed. Deposit Ins.

  Corp. v. Fisher, 2013 CO 5, ¶ 12.

¶ 26   Given these two reasonable interpretations, the deed is

  ambiguous. Bledsoe, 747 P.2d at 12.

¶ 27   Neither party has pointed us to any extrinsic evidence of the

  parties’ intent, other than the Burns reservation — the same

  evidence that gives rise to the ambiguity in the first place. In the

  district court, Ferrari produced evidence that the Wilsons had

  entered into lease agreements for the minerals in 1983 and 1986; it

  argued that the Wilsons’ act of executing leases, and the failure of

  the Moellers’ predecessors-in-interest to do the same, demonstrated

  that the parties to the 1964 Deed believed that the Wilsons had

  reserved for themselves an interest in the minerals.

¶ 28   True, courts may look to the subsequent conduct of parties to

  a deed as an indication of their intent. 23 Am. Jur. 2d Deeds § 265,

  Westlaw (database updated May 2020); see also Hall v. Nash, 81 P.

  249, 251 (Colo. 1905); Town of Manitou v. Int’l Tr. Co., 30 Colo. 467,

  475-79, 70 P. 757, 760-61 (1902). But here, both the Wilsons and

  the Moellers entered into lease agreements at different times,

  apparently with no objection from the other (or the other’s


                                      12
  predecessors-in-interest), and so the evidence suggests only that

  both believed themselves to be the owners of the minerals,

  presumably in reliance on the language of the 1964 Deed. In other

  words, this extrinsic evidence does not help to resolve the

  ambiguity. See McCormick v. Union Pac. Res. Co., 14 P.3d 346, 353

  (Colo. 2000) (cautioning, in a discussion of whether a reservation

  for “all minerals” included oil and gas, that decades-old extrinsic

  evidence does not always shed “real light on the parties’ individual

  intentions”). We therefore default to the rule that an ambiguous

  deed is construed against the grantor. Bell Petroleum, 492 P.2d at

  81; see also Notch Mountain, 898 P.2d at 557; Owens, ¶ 15.

¶ 29   Accordingly, we conclude that the district court erred in

  quieting title in the mineral estate in Ferrari. See Bledsoe, 747 P.2d

  at 12. The judgment is reversed, and the case is remanded with

  directions for the court to enter judgment in favor of the Moellers on

  their quiet title claim.

                  III.   The Parties’ Other Claims of Error

¶ 30   In light of our disposition, we decline to address either the

  Moellers’ additional argument that the court erred in precluding its

  adverse possession defense, or Ferrari’s argument on cross-appeal


                                      13
  that the court erred in denying its unjust enrichment claim against

  the Moellers.

                            IV.   Conclusion

¶ 31   The decree in quiet title is reversed and the case is remanded

  for further proceedings consistent with this opinion.

       JUDGE ROMÁN concurs.

       JUDGE GROVE specially concurs.




                                   14
       JUDGE GROVE, specially concurring.

¶ 32   I agree with the majority’s conclusion that any ambiguity in

  the 1964 Deed should be construed in favor of the Moellers, as

  successors-in-interest to the original grantees. But because, in my

  view, the 1964 Deed unambiguously conveyed one-half of the

  mineral estate to the grantees, I would reverse the district court’s

  judgment on that ground alone.

¶ 33   In O’Brien v. Village Land Co., 794 P.2d 246 (Colo. 1990), and

  Brown v. Kirk, 127 Colo. 453, 456, 257 P.2d 1045, 1046 (1953), the

  supreme court construed deeds that, like this one, conveyed land

  by general description while also reserving one-half of the minerals.

  Although the grantors in both cases owned only one-half of the

  mineral estates, they both argued that the reservation in the deeds

  applied to the halves that they owned — meaning that they would

  keep those minerals and transfer only the surface estates to the

  respective grantees.1 The supreme court disagreed in both cases,



  1 In both cases, as in this one, the dispute only extended to the
  fraction of the minerals that the grantor owned at the time of the
  conveyance. Ownership of minerals previously reserved by others
  in the chain of title was unaffected by any subsequent disagreement
  over the remainder of the subsurface estate.

                                    15
  holding in O’Brien that where “the face of the . . . deed purported to

  convey all mineral interests except the one-half expressly reserved

  by the terms of the deed, [the] grantor conveyed and warranted title

  to one-half of the mineral interests” in the entire parcel. 794 P.2d

  at 251.

¶ 34   As a general rule, “a conveyance of land by general

  description, without any reservation of a mineral interest, passes

  title to both the land and the underlying mineral deposits.” Id. at

  249. Mineral interests may of course be excluded from a

  conveyance, but interpretive questions can arise in cases where a

  deed’s grantor owns less than he ostensibly conveys. Colorado is

  one of a number of states that resolves any such questions by

  looking exclusively to the four corners of the deed and giving

  dispositive weight to the expectations that the grantee would have

  had based on the language of the deed alone.

¶ 35   The Texas Supreme Court considered the interpretive

  difficulties created by fractional conveyances from partial owners of

  the mineral estate in Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d

  878, 880-81 (Tex. 1940). Its influential opinion established the

  “Duhig rule,” which relies on principles of estoppel by deed to


                                    16
  prevent a grantor who has conveyed property by warranty deed

  from disputing the title that he has warranted.

            The effect of Duhig is that a grantor cannot
            grant and reserve the same mineral interest,
            and if a grantor does not own a large enough
            mineral interest to satisfy both the grant and
            the reservation, the grant must be satisfied
            first because the obligation incurred by the
            grant is superior to the reservation.

  Acoma Oil Corp. v. Wilson, 471 N.W.2d 476, 480 (N.D. 1991).

¶ 36   The Colorado Supreme Court has declined to adopt Duhig’s

  estoppel-by-deed theory, noting that it “has been criticized as

  contrived.” O’Brien, 794 P.2d at 251 n.3 (“We do not employ the

  Duhig analysis in this case and instead reach our result by giving

  effect to the unambiguous and unequivocal terms of the . . . deed.”).

  Yet, on similar facts, O’Brien and Brown reached the same result as

  Duhig by conducting a simple one-step analysis that looked to the

  four corners of the deed alone to determine the scope of the

  conveyance. That approach was consistent with the author judge’s

  preferred reasoning2 in Duhig, which concluded that “the intention


  2Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d 878 (Tex. 1940),
  was unusual in that the author judge essentially specially
  concurred by explaining his own distinct reasons for affirming the


                                   17
  of the parties to the deed was to invest the grantee with title to the

  surface and a one-half interest in the minerals,” while withdrawing

  via the reservation clause the half that the grantor did not own.

  144 S.W.2d at 879; see also Patrick H. Martin & Bruce D. Kramer,

  Williams and Meyers, Oil and Gas Law § 311 (2014). The

  reservations in all three cases — O’Brien, Brown, and Duhig — did

  not apply to the half that the grantor did own because otherwise the

  grantee would not receive the partial undivided interest in mineral

  estate that the deed purported to convey. See Appling v. Fed. Land

  Bank of Wichita, 816 P.2d 297, 301 (Colo. App. 1991).

¶ 37   Here, the district court found significant the fact that the 1964

  Deed’s reservation was “to the grantors herein” — language it

  determined “explicitly reserve[d] one-half of the mineral estate in

  the [grantors].” This reservation, it noted, contrasted with previous

  cases that reserved minerals without specifying who would own

  them after the sale was complete. See O’Brien, 794 P.2d at 247

  (conveying real estate by general description while “RESERVING an

  undivided one-half interest in and to all oil, gas and other



  trial court’s judgment before revealing that the court had adopted
  the estoppel-by-deed approach.

                                    18
  minerals . . .”); Brown, 127 Colo. at 454, 257 P.2d at 1045

  (conveying real estate by general description “except one half of all

  oil, gas and mineral rights which party of the first part reserves”).

  As the district court viewed it, the less specific language in these

  reservations allowed the O’Brien and Brown courts to conclude that

  the grantors “conveyed one-half of the mineral estate to the

  grantees without doing violence to the plain language in the deeds.”

  But at the same time, the district court found that the more specific

  reservation in the 1964 Deed — “to the grantors herein” —

  precluded a similar result in this case.3

¶ 38   In my view, the district court erred by allowing what it

  concluded was the grantors’ intent to override the grantees’

  expectation based on the plain language of the deed. Based on that

  plain language, the grantees would have reasonably concluded that



  3 It is worth noting that the attempted reservation in Duhig included
  language every bit as specific as the 1964 Deed: “But it is expressly
  agreed and stipulated that the grantor herein retains an undivided
  one-half interest in and to all mineral rights or minerals of whatever
  description in the land.” Duhig, 144 S.W.2d at 879. This
  reservation, the author judge would have held, did “not clearly and
  plainly disclose the intention of the parties that there be reserved to
  the grantor Duhig an undivided one-half interest in the minerals in
  addition to that previously reserved[.]” Id.

                                    19
  they were acquiring everything that the deed did not specifically

  reserve — including one-half of the mineral estate. The 1964 Deed,

  after all, conveyed the property by general description (reserving

  one-half of the minerals), and its habendum clause not only

  represented that the grantors were “well seized of the premises

  above conveyed,” but also that those premises were “free and clear

  from all former and other grants, bargains, sales, liens, taxes,

  assessments and incumbrances of whatever kind or nature soever,

  except taxes for the year 1964.” See Owens v. Tergeson, 2015 COA

  164 (construing deed as a whole, including both granting and

  habendum clause, to determine grantor’s intent). Based on these

  representations, and without going beyond the four corners of the

  deed to evaluate the mineral estate’s chain of title, the grantees

  could only have concluded that one-half of the mineral estate was

  being reserved and the other one-half transferred to them. See

  O’Brien, 794 P.2d at 251.

¶ 39   Nor does the deed’s reservation of half the mineral estate “to

  the grantors” render the deed ambiguous. “[T]he fact that the

  parties have different opinions about the interpretation of the deed

  does not of itself create an ambiguity.” Hudgeons v. Tenneco Oil


                                    20
  Co., 796 P.2d 21, 22 (Colo. App. 1990). And because the grantor

  assumes the risk of title failure, “[i]f both the grant and the

  reservation cannot be given effect . . . the grant must prevail.”

  Gilstrap v. June Eisele Warren Tr., 106 P.3d 858, 867 (Wyo. 2005);

  see also Harlingen Irrigation Dist. Cameron Cty. No. 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. Thus, the 1964 Deed unambiguously conveyed one-half of

  the mineral estate to the grantees, the Moellers’ successors-in-

  interest, and left the grantors with nothing. Accordingly, while I

  concur with the majority’s holding, I would reverse the judgment of

  the district court based on the plain language of the 1964 Deed

  alone.




                                     21
