State v. Wilcox

                   This opinion is subject to revision before final
                        publication in the Pacific Reporter
                                   

                                      IN THE

         SUPREME COURT OF THE STATE OF UTAH

  GENESIS AGGREGATES B, LLC and GENESIS AGGREGATES G, LLC,
                         Appellants,
                                         v.
                           TOLL SOUTHWEST LLC,
                                 Appellee.

                              No. 20240369
                         Heard February 26, 2025
                          Filed August 7, 2025

                              On Direct Appeal

                      Fourth District Court, Provo
                     The Honorable Derek P. Pullan
                            No. 210400778

                                   Attorneys:
       Karra J. Porter, Todd Weiler, Salt Lake City, for appellants
         Peter C. Schofield, Justin W. Starr, Joseph V. Osmond,
               Christopher M. Sanders, Lehi, for appellee

  JUSTICE POHLMAN authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,
           JUSTICE PETERSEN, and JUSTICE HAGEN joined.


   JUSTICE POHLMAN, opinion of the Court:
                             INTRODUCTION
   ¶1 Genesis 1 and Toll Southwest LLC are cotenants of the
subsurface estate of a .225-acre plot of land in Utah County, each
owning a one-half undivided interest in the parcel’s sand, gravel,

__________________________________________________________
   1We refer to Genesis Aggregates B, LLC and Genesis
Aggregates G, LLC collectively as Genesis.
              GENESIS AGGREGATES v. TOLL SOUTHWEST
                        Opinion of the Court

and clay (collectively, soil). Toll is the exclusive owner of the
surface estate. Genesis brought this action against Toll, claiming
that Toll interfered with Genesis’s rights by extracting, exporting,
and using the parcel’s soil without compensating Genesis. Toll
moved for summary judgment, arguing that it did not export soil
from the parcel and that Genesis has no right to compensation for
Toll’s use of soil that remains on the parcel. The district court
agreed with Toll and dismissed Genesis’s claims.
     ¶2 Genesis now challenges the district court’s ruling. It first
contends that the court erred in dismissing its claims premised on
its factual allegation that Toll removed soil from the property and
transferred it to a third party. Genesis concedes that it lacks
affirmative evidence to prove its charge, but it claims a jury could
reasonably infer that Toll transferred the materials off-site because,
according to Genesis, Toll lacks credibility and had exclusive
control of the information relevant to the claim. We disagree.
Genesis, as the party bearing the burden of proof at trial, was
obligated to produce evidence to support its factual claim that soil
had been transferred off-site. Because Genesis did not identify any
evidence from which a jury could reasonably infer that Toll
removed soil from the parcel, the court correctly granted summary
judgment to Toll.
    ¶3 Next, Genesis contends that, even if no soil was removed
from the parcel, it is entitled to compensation because Toll
interfered with Genesis’s use of the parcel’s soil by blocking access
to it, or because Toll derived a benefit from using Genesis’s one-half interest in the soil. We reject these claims. As the owner of the
parcel’s surface rights, Toll had “an absolute right . . . to the
necessary support of [its] land” and to “improve and use the
surface” as Toll saw fit, provided it did not “interfere with”
Genesis’s subsurface rights. See Stephen Hays Est., Inc. v. Togliatti, 

 (Utah 1934). Genesis has assumed that Toll’s use of
the soil constitutes “interference” with its rights, but Genesis has
not established what rights it holds in the soil or that a surface
owner’s on-site use of the soil constitutes interference with those
rights under either the parties’ deed or common law.
   ¶4 Accordingly, we affirm the district court’s summary
judgment decision and dismissal of Genesis’s claims.




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                        Opinion of the Court

                         BACKGROUND 2
    ¶5 In 1945, A.W. and Mirl C. Olsen sold a large tract of land
on Traverse Mountain in Utah County. In the deed of conveyance,
the Olsens “reserve[d] to themselves and to their heirs, successors
and assigns an undivided one half interest in any and all minerals,
hydrocarbons, including oil, and any and all commercial deposits
of sand, gravel and clay in or on said premises.”
    ¶6 Within the tract of land described in the 1945 deed is the
single .225-acre lot at issue in this case (parcel). As successor-ininterest to the Olsens, Genesis owns a one-half interest in the
parcel’s subsurface minerals and commercial deposits of soil. Toll
owns the parcel’s surface estate and the other one-half interest in
the parcel’s subsurface estate.
    ¶7 Toll developed the parcel as part of its larger development
across several acres of property on Traverse Mountain. Toll
excavated soil from the parcel and used it as fill on the same parcel
to create the desired grade and density.
    ¶8 Genesis subsequently filed suit against Toll, demanding
an accounting and asserting claims for breach of fiduciary duty,
waste, conversion, unjust enrichment, and constructive trust and
disgorgement. Genesis’s claims were premised on its allegation
that Toll extracted, sold, or used the parcel’s soil in which Genesis
claimed an interest. Genesis specifically alleged that Toll “removed
at least 54,875 cubic yards of sand, gravel, and clay” from the parcel
and that Toll transported the soil to other parcels owned and
controlled by Toll or third parties.
    ¶9 After fact discovery closed, Toll moved for summary
judgment on Genesis’s claims. Toll presented evidence that it did
not remove any soil from the parcel and that “[t]he soil on the
property was used in its native form and only for grading and
backfill.” Thus, according to Toll, the undisputed facts showed that
“[t]his is a ‘cut and fill’ case,” where it “cut” soil from parts of the
parcel and used that material to “fill” other areas on the same
parcel. And, citing a Utah Supreme Court case from 1934 in
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   2 In reviewing a district court’s grant of summary judgment,

“we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party” and recite the
facts accordingly. Boud v. SDNCO, Inc., 

, 

 (cleaned up).

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             GENESIS AGGREGATES v. TOLL SOUTHWEST
                       Opinion of the Court

support, Toll argued that because “[i]t merely exercised its surface
rights by simply grading the soil, excavating, and building on top
of the soil,” Genesis had no viable claim. (Citing Stephen Hays Est.,
Inc. v. Togliatti, 

 (Utah 1934).)
    ¶10 Genesis opposed the motion. It conceded that “Toll had a
right to develop the surface and excavate (one-half of) the
subsurface [soil].” But, Genesis argued, “Toll did not have a right
to . . . use or give away the other half without notice and
compensation,” nor did Toll have “the right to eliminate Genesis’
‘use and enjoyment’ of the [soil] by burying [it] under buildings
and lawns.” Genesis claimed it was entitled to damages for Toll’s
use of the soil on the parcel because Toll “received an economic
benefit by not having to import” soil for use in its construction
project. It also asserted that it was entitled to compensation for
Toll’s extraction and transfer of some 60,000 to 100,000 cubic yards
of soil from its larger development to a third party.
    ¶11 The district court granted Toll’s motion for summary
judgment and dismissed Genesis’s complaint. The court began by
noting the absence of genuine factual disputes about Toll’s
excavation and use of the soil. It recited Genesis’s original
allegations regarding Toll’s supposed removal of soil from the
property, but it noted that Genesis “concede[d]” in oral argument
“that it has no evidence that Toll transported or transferred
ownership of any [soil] excavated from the Parcel.”
    ¶12 The court then addressed the merits of Genesis’s claims
by considering two distinct underlying theories. First, to the extent
Genesis’s claims were grounded in the allegation that Toll sold or
transferred soil from the parcel, the court concluded that those
claims failed for a lack of evidence. Second, the court turned to the
question of whether Genesis was entitled to damages for Toll’s
excavation and use of soil as fill on the same parcel. In the court’s
view, that question was answered by Togliatti, in which we held
that “[t]he owner of the surface has an absolute right in the absence
of an agreement to the contrary to the necessary support of his land.
He may cultivate the surface or erect buildings thereon . . . .” 

. The court also cited the analyses of the Washington
appellate courts in Saddle Mountain Minerals, L.L.C. v. Joshi, 

 (Wash. 2004) (en banc), and Saddle Mountain Minerals, L.L.C. v.
Santiago Homes, Inc., 

 (Wash. Ct. App. 2008). There, the
courts addressed the question of whether a subsurface owner with
rights to sand and gravel is entitled to compensation for a surface


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                        Opinion of the Court

owner’s utilization of those materials for on-site development. And
each court held that surface owners were entitled to use soil in
developing their respective sites and that they owed no
compensation to the subsurface owner unless the soil was exported
off-site. Joshi, 

; Santiago Homes, 189 P.3d at 825.
    ¶13 Applying these precedents, the district court resolved that
“as the owner of surface rights Toll has an absolute right to
excavate the Parcel and to improve the surface of the Parcel as Toll
sees fit, so long as Toll does not interfere with Genesis’s ownership
of the subsurface minerals.” And here, the court observed, “there
is no evidence that Toll’s cut and fill work on the Parcel interfered
with Genesis’s 50% interest” in the soil or otherwise “damaged
Genesis.” Thus, the court concluded, “Genesis is not entitled to
compensation for [soil] that w[as] excavated but never transported
from the Parcel.”
   ¶14 Genesis appeals.
             ISSUE AND STANDARD OF REVIEW
   ¶15 Genesis challenges the district court’s order granting Toll’s
motion for summary judgment. “We review a grant of summary
judgment for correctness.” Heslop v. Bear River Mut. Ins., 

, 

. “We give no deference to the district court’s legal
conclusions and consider whether the court correctly decided that
no genuine issue of material fact existed.” 

 (cleaned up).
                             ANALYSIS
     ¶16 Genesis asserts two primary errors with the district court’s
decision. First, Genesis contends that the court erred in dismissing
its claims stemming from its allegation that Toll transferred soil off-site. Although Genesis concedes that it has produced no evidence
that soil was moved off the parcel, it argues that a jury could
reasonably infer that such a transfer occurred from the fact that Toll
transferred soil from somewhere in its larger development to a
third party.
   ¶17 Second, Genesis contends that the court erred in
concluding that Toll did not interfere with Genesis’s subsurface
rights as a matter of law, arguing that Genesis is entitled to
compensation for Toll’s use of the soil even if the soil was never
removed from the parcel.
   ¶18 We address Genesis’s arguments in turn and conclude that
the district court properly granted summary judgment to Toll.


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             GENESIS AGGREGATES v. TOLL SOUTHWEST
                        Opinion of the Court

I. GENESIS FAILED TO PROVIDE AN EVIDENTIARY BASIS FOR ITS CLAIM
   THAT TOLL REMOVED SOIL FROM THE PARCEL

   ¶19 Genesis argues that the district court erred in rejecting, for
lack of evidence, its factual claim that Toll removed soil from the
parcel and transferred it to a third party. Genesis’s claim derives
from Toll’s transfer of some 60,000 to 100,000 cubic yards of soil
from its larger development to a neighboring developer.
   ¶20 Genesis does not challenge the court’s observation that
Genesis “has no evidence that this cut material included any of the
sand, gravel, and clay excavated from the Parcel.” In fact, as the
court recognized, Genesis “has no evidence that Toll transported or
transferred ownership of any sand, gravel, and clay excavated from
the Parcel.” (Emphasis added.) Still, Genesis argues that the court
“imposed too high a burden,” and that a jury should be allowed to
“draw inferences” about the origin of the transferred material
because such information is “exclusively within” Toll’s possession
and is “not knowable” by Genesis without an accounting. We
disagree.
    ¶21 To begin, the district court did not impose too high a
burden on Genesis. The parties’ relative burdens on summary
judgment are well established. Where the moving party does not
bear the burden of proof at trial, it may demonstrate its entitlement
to summary judgment by presenting evidence to show no genuine
issue of material fact exists, or by showing a lack of evidentiary
support for an essential element of the opposing party’s claim. See
Salo v. Tyler, 

, 

. Once the moving party
carries that burden, to avoid summary judgment the nonmoving
party must produce affirmative evidence, beyond mere reliance on
the pleadings, showing that “there is a genuine issue for trial.”
Waddoups v. Amalgamated Sugar Co., 

, 

(quoting UTAH R. CIV. P. 56(e)); see also Anderson v. Liberty Lobby,
Inc., 

, 256–57 (1986). 3 And “[t]his is true even where the
evidence is likely to be within the possession of the defendant, as
long as the plaintiff has had a full opportunity to conduct
discovery.” Anderson, 

.


__________________________________________________________
   3 In Salo, we held “that the Utah summary judgment standard is

in line with the federal standard.” 

. Accordingly, we
may refer to federal cases for guidance. See Arbogast Fam. Tr. v. River
Crossings, LLC, 

, 

.

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                        Opinion of the Court

    ¶22 As the moving party that did not bear the burden of proof
at trial, Toll carried its burden on summary judgment by showing
a lack of evidentiary support for Genesis’s assertion that Toll
removed soil from the parcel. In fact, Toll even went a step further
and affirmatively refuted Genesis’s claim. Specifically, Toll
presented evidence that Toll did not transfer any of the parcel’s soil
to a third party, and that all the soil excavated from the parcel
remained on-site. See supra ¶ 9. And with Toll having satisfied its
burden, it was incumbent on Genesis to identify contradictory
evidence. But it didn’t. Instead, it conceded that it “cannot prove
that any” soil was “exported or moved off of the [parcel].” Thus,
the district court correctly concluded that Genesis failed to meet its
summary judgment burden and that Toll was entitled to summary
judgment on all claims arising out of this allegation.
    ¶23 Yet Genesis continues to resist this conclusion, arguing on
appeal that a jury should be allowed to infer that soil was exported
from the parcel either because Genesis lacked access to the
information or because Toll lacks credibility. Neither argument
persuades.
    ¶24 First, although a nonmoving party facing summary
judgment is entitled to have “all reasonable inferences” drawn in its
favor, that party is not entitled to “every possible inference of fact.”
IHC Health Servs., Inc. v. D&K Mgmt., Inc., 

, 

 (second emphasis added); see also Kranendonk v. Gregory
& Swapp, PLLC, 

, 

 (“[W]hile a
plaintiff facing summary judgment is entitled to all favorable
inferences, she is not entitled to build a case on the gossamer
threads of whimsy, speculation and conjecture.” (cleaned up)). A
reasonable inference requires an evidentiary foundation. See Heslop
v. Bear River Mut. Ins., 

, 

. And here, that
evidentiary foundation is lacking. That Genesis is not naturally in
the position to know what Toll did with its soil does not provide
the necessary evidentiary basis for a jury to reasonably infer that
Toll removed soil from the parcel and transferred it to a third party.
   ¶25 Second, we see no support for Genesis’s suggestion during
oral argument that summary judgment was improper because a
jury could infer that Toll removed soil from the parcel based on




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              GENESIS AGGREGATES v. TOLL SOUTHWEST
                         Opinion of the Court

“indicia” that Toll’s testimony was generally untruthful. 4 To the
contrary, courts applying the federal analog to Utah’s summary
judgment rule have routinely rejected attempts to defeat summary
judgment based on claims that an opponent’s evidence isn’t
credible. See, e.g., Schoonejongen v. Curtiss-Wright Corp., 

 (3d Cir. 1998) (“It is by now axiomatic that a nonmoving
party cannot defeat summary judgment simply by asserting that a
jury might disbelieve an opponent’s [evidence].” (cleaned up)). 5
Genesis bore the burden of proving with affirmative evidence its
allegation that Toll removed soil from the parcel. See supra ¶¶ 21–
22. Simply leveling generalized attacks on Toll’s credibility does
not raise the genuine issue of material fact Genesis needs to defeat
Toll’s properly supported summary judgment motion.
II. GENESIS HAS NOT ESTABLISHED A LEGAL BASIS FOR ITS CLAIM
    THAT TOLL’S ON-SITE USE OF THE PARCEL’S SOIL INTERFERED WITH
    GENESIS’S SUBSURFACE RIGHTS
    ¶26 Apart from its claim that Toll removed soil from the parcel,
Genesis argues that Toll’s cut-and-fill operations on the parcel
interfered with its subsurface rights. To address this question, we


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   4 In support of its suggestion that Toll is generally untruthful,

Genesis asserted that Toll “did not produce [a] title report” for the
parcel and “claim[ed] not to recall what the document said,”
despite testimony from a Toll representative that the company
obtained a title report. We need not resolve whether this shows Toll
to be generally untrustworthy.
   5  See also Anderson, 477 U.S. at 256–57 (stating “discredited
testimony is not normally considered a sufficient basis for drawing
a contrary conclusion” on summary judgment (cleaned up)); Cox v.
Ky. Dep’t of Transp., 

, 150 (6th Cir. 1995) (“[A] nonmoving
party may not avoid a properly supported motion for summary
judgment by simply arguing that it relies solely or in part upon
credibility considerations . . . .”); Curl v. Int’l Bus. Machs. Corp., 

 (5th Cir. 1975) (“The party opposing summary
judgment must be able to point to some facts which may or will
entitle him to judgment, or refute the proof of the moving party in
some material portion, and the opposing party may not merely
recite the incantation, ‘Credibility,’ and have a trial on the hope that
a jury may disbelieve factually uncontested proof.” (cleaned up)).

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                         Cite as: 

                        Opinion of the Court

begin by exploring general common law about the scope of a
surface owner’s rights in a severed estate.
    ¶27 It has long been recognized that in any given tract of land,
“the surface may be owned by one person and the mineral
underneath by another.” Smith v. Jones, 

 (Utah 1900).
“Minerals in place may be severed from the land, and when so
severed they become separate and distinct estates, held by separate
and distinct titles.” Hartman v. Potter, 

 (Utah 1979);
see also Stephen Hays Est., Inc. v. Togliatti, 

 (Utah
1934) (“When a surface right is conveyed apart from the minerals,
two separate estates exist, each of which is distinct from the
other . . . .” (cleaned up)).
    ¶28 This case involves such a severed estate. The parties agree
that Genesis has a one-half interest in “any and all minerals,
hydrocarbons, including oil, and any and all commercial deposits
of sand, gravel and clay in or on” the parcel, while Toll owns the
entirety of the surface estate and the remaining one-half interest in
the subsurface estate. But the parties dispute the scope of the rights
that come with ownership of their respective estates.
    ¶29 “Since the 1930s, the term ‘surface’ has largely been
regarded as a word of clear meaning, unless that meaning is plainly
altered by other language in the instrument of conveyance.” 6 Faith
United Methodist Church & Cemetery of Terra Alta v. Morgan, 

, 478 & n.101 (W. Va. 2013) (citing cases). Specifically,
“surface” “generally means the exposed area of land,
improvements on the land, and any part of the underground
actually used by a surface owner as an adjunct to surface use,” such
as for “basements, or construction footings.” 

 at 480–81; see also
Shell Oil Co. v. Moore, 

 (Ill. 1943) (“[T]he

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   6 In determining the scope of the rights reserved under a deed,

we would ordinarily look first to the deed to determine the parties’
intentions. See Keith v. Mountain Resorts Dev., L.L.C., 

, 

 (explaining that “[d]eeds are to be construed like
other written instruments” and that “we determine the parties’
intent from the plain language of the four corners of the deed” and
resort to parol evidence only where that language is ambiguous
(cleaned up)). In arguing this case, neither side has undertaken a
textual analysis of the particular language of the 1945 deed. We
thus follow their lead and resolve their dispute based on general
common law principles.

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             GENESIS AGGREGATES v. TOLL SOUTHWEST
                        Opinion of the Court

conveyance of ‘surface’ . . . has the effect of passing title to the top
surface of the land, together with such ancillary use of a portion
under the surface for . . . foundations and other uses as will render
it suitable and usable for the purposes intended.”); Wilkes-Barre
Twp. Sch. Dist. v. Corgan, 

 (Pa. 1961) (“The term
‘surface’ . . . is seldom, if ever, limited to mere geometrical
superficies.”).
    ¶30 So, when the surface estate is severed from the subsurface
estate, the law provides that the surface owner enjoys the right to
subjacent support, 7 the right to lateral support,8 and the right to
utilize the subsurface as needed for surface use unless the surface
owner has waived those rights. See Morgan, 745 S.E.2d at 480–81
(“[T]he word ‘surface,’ when used in an instrument of conveyance,
generally means the exposed area of land, improvements on the
land, and any part of the underground actually used by a surface
owner . . . .”); Haseman v. Orman, 

 (Ind. 1997)
(“Where title to the land and ownership of subsurface mineral
rights are severed . . . the surface landowner enjoys the right to
subjacent support of both the land and structures on it.”); 53A AM.
JUR. 2D Mines & Minerals § 365, Westlaw (May 2025 update) (“The
owner of the surface is entitled to absolute support of the owner’s
land” “unless the surface owner has parted with or waived the
owner’s right in the matter.”).
   ¶31 This court adopted this view of surface rights in Togliatti,

. In that case, the plaintiff owned the mineral rights to


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   7 Subjacent support is the support of the surface from below. In

a severed estate, “the owner of subjacent rights must so conduct his
operations as to leave support sufficient to maintain the surface in
its natural state, and for failure so to do he may be liable for
damages.” Colo. Fuel & Iron Corp. v. Salardino, 

(Colo. 1952) (en banc), overruled on other grounds by Gladin v. Von
Engeln, 

 (Colo. 1978) (en banc).
   8 The right of lateral support “embod[ies] the principle that the

owner of land has a right to lateral support from the adjoining soil,
and that the adjacent proprietor cannot remove the earth to such an
extent as to withdraw the natural support of his neighbor’s soil,
without being liable for the injury.” Downs v. Lyles, 

(Ala. Civ. App. 2009) (cleaned up).

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                         Opinion of the Court

a tract of land, while the defendant owned the surface rights. 9 Id. at
1067. The defendant used a shaft in the ground to extract copper
from groundwater that had percolated onto the property, and the
plaintiff sought to quiet title to the copper extracted from the
groundwater, arguing that as the mineral owner it was entitled to
ownership of the copper. Id. at 1067–69. The court considered the
relationship between the surface estate and the mineral estate,
explaining that the owner of surface rights generally has “such
rights to the use thereof as are usually exercised by [an] owner in
fee subject only to the right of the grantor to remove the minerals
reserved.” Id. at 1070. The court further explained:
       A surface right is not confined to the geometrical
       surface. The owner of the surface has an absolute right in
       the absence of an agreement to the contrary to the necessary
       support of his land. He may cultivate the surface or
       erect buildings thereon . . . . Should he desire a
       basement under his building, doubtless he would
       have a right to excavate the same[] . . . . In short, the
       owner of a surface right may improve and use the
       surface as he sees fit so long as he does not interfere
       with the rights of those who own the minerals.
Id. (emphasis added).
    ¶32 Thus, the takeaway from Togliatti is that absent an
agreement otherwise, surface owners have broad rights to use and
develop their land, including the right to excavate subsurface
materials and to erect buildings thereon. See id. But those rights are
not unlimited. Togliatti directs that the surface owner may “not
interfere with” the right of the subsurface estate owner “to remove
the minerals reserved.” Id.
    ¶33 Although Togliatti is instructive in discerning the rights of
the owner of the surface estate vis-à-vis the owner of the entirety of
the mineral estate, it falls short of articulating the extent of
Genesis’s rights as a one-half owner in “any and all commercial




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   9 The deed in Togliatti conveyed a “certain piece or parcel of

surface ground” while “especially except[ing] from these presents”
“all minerals on or in the land conveyed and the right to mine the
same.” 

 (cleaned up).

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             GENESIS AGGREGATES v. TOLL SOUTHWEST
                        Opinion of the Court

deposits of sand, gravel and clay in or on [the parcel].” 10 In the
absence of Utah authority, the district court turned to two cases out
of Washington state where the appellate courts considered the
parties’ rights relative to soil in severed estates.
    ¶34 First, in Saddle Mountain Minerals, L.L.C. v. Joshi, Saddle
Mountain owned the subsurface estate of a property, including the
rights to “sand and gravel” and the express “right to enter upon the
surface of the property for the purpose of drilling, extracting,
operating, and working any extraction and processing facilities by
any procedures whatsoever.” 

, 1237 (Wash. 2004) (en
banc). Saddle Mountain sued the surface owners, the Joshis, for
damages caused by their development activity, which included
cutting and filling areas of the property, building a road, and
exporting sand and gravel from the property. Id. at 1238. The
Washington Supreme Court held that “the Joshis were entitled to
utilize the surface soil in developing the . . . site.” Id. at 1243.
“However, even if a surface owner can burden a mineral owner’s
right, it does not mean that the surface owner can export minerals
without any compensation to the mineral owner.” Id. So, while the
court held that “the Joshis must compensate Saddle Mountain if
they export sand and gravel from the . . . site,” Saddle Mountain
was not entitled to damages for the use of the soil that remained on
the site. Id.
   ¶35 Likewise, in Saddle Mountain Minerals, L.L.C. v. Santiago
Homes, Inc., the same plaintiff brought a claim against a different
developer on nearly identical facts. 

, 822 (Wash. Ct.
App. 2008). Applying Joshi, the Washington Court of Appeals held
that the surface owner is “free to develop the property and Saddle
Mountain is not entitled to compensation for minerals that are not

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   10 Soil is generally not considered a “mineral” under common

law. See Norken Corp. v. McGahan, 

 (Alaska 1991)
(“Courts . . . are virtually unanimous in holding that gravel is not a
‘mineral’ in the legal sense of that word.”); see also State Land Bd. v.
State Dep’t of Fish & Game, 

, 708–09 (Utah 1965) (“[T]he
reservation of ‘coal and other minerals’ . . . was not intended to
include sand and gravel, either in the instant case or under usual
circumstances.”). So, although cases involving mineral rights are
useful in defining the scope of a surface owner’s rights in a severed
estate, soil rights are not necessarily coextensive with mineral
rights. See infra ¶¶ 41–43.

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                        Opinion of the Court

exported from the site.” Id. at 825. But if the surface owner “exports
sand and gravel from the property, [the owner] must make
payment to Saddle Mountain.” Id.
   ¶36 The district court here viewed the Washington courts’
assessment of rights relative to soil as persuasive and consistent
with the rules articulated in Togliatti. Thus, it concluded that like
Saddle Mountain, Genesis “is not entitled to compensation for [soil]
that w[as] excavated but never transported from the Parcel.”
According to the district court, Toll had “an absolute right” to
excavate and use the sand, gravel, and clay as fill on the parcel, and
that such use did not interfere with Genesis’s subsurface rights.
    ¶37 Genesis disagrees with the district court’s conclusion and
insists that it is entitled to compensation for Toll’s use of the soil,
even if no soil was exported from the parcel. It advances two
related theories of recovery supporting this proposition. First, it
asserts that Toll “permanently interfered with Genesis’s property
rights” when it blocked Genesis’s access to the soil by building
“permanent structures” on the parcel. Next, Genesis asserts that its
subsurface rights include the right to the “exclusive use” of the soil,
so it was injured when Toll used the parcel’s soil for its
development project.
   ¶38 We examine each of Genesis’s theories in turn and
conclude that Genesis has not shown that either one has support in
the law.
   A. Genesis Has Not Shown that It Has a Right to
      Compensation for Toll’s Construction of Structures on the
      Parcel
    ¶39 We turn first to Genesis’s contention that Toll’s use of the
parcel’s soil interfered with Genesis’s subsurface rights by
rendering the soil inaccessible. Genesis asserts, “The buildings,
homes, and landscaping rendered Genesis’s ability to develop its
[subsurface materials] unreasonable and impractical because it
would require Genesis to excavate through permanent
structures.” 11 On this basis, Genesis claims it is entitled to

__________________________________________________________
   11 In its briefing, Genesis references “buildings, homes, and
landscaping” constructed in Toll’s development at large, but it does
not point to evidence specifically identifying what has been
constructed on the .225-acre parcel. We assume as true, for
                                                    (continued . . .)

                                  13
             GENESIS AGGREGATES v. TOLL SOUTHWEST
                        Opinion of the Court

compensation because Toll “permanently interfered with Genesis’s
property rights.”
    ¶40 In making this argument, Genesis relies on legal principles
governing mineral rights to define the scope of its rights with
respect to the parcel’s soil. Drawing from cases regarding the rights
of mineral owners, Genesis claims that its rights include, among
other things, the right to extract and sell the minerals, and the
“‘exclusive right to possess, use, and appropriate’ as well as
‘explore’ for and ‘obtain’ the minerals.” (Quoting Lightning Oil Co.
v. Anadarko E&P Onshore, LLC, 

, 48–49 (Tex. 2017).)
But Genesis has not persuaded us that these principles apply.
Genesis has assumed, but has not legally established, that its halfownership right in commercial deposits of soil on the parcel
mirrors those rights generally enjoyed by the owners of subsurface
minerals.
    ¶41 As Toll correctly points out, soil is generally not
considered a “mineral” under common law. See supra ¶ 33 n.10. In
interpreting the meaning of the statutory phrase “coal and other
minerals” in State Land Board v. State Department of Fish & Game, we
recognized some of the differences between soil and minerals like
coal. 

 (Utah 1965). There, we stated that “in its
broadest sense the term ‘minerals’ would include sand and gravel,”
observing that “under the common cliche that everything is either
‘animal, vegetable or mineral’ the term would include almost all
material substances of the earth, its waters and even the air we
breathe.” 

 But we recognized that, in context, the term “other
minerals” was properly understood as something which is “usually
the subject of prospecting and mining, that is, something more
valuable than the land in which they are contained and which are
for that reason sought after and extracted from the land by mining,
quarrying, or other special means for removal.” 

 In comparison,
we explained, “[s]and and gravel are among the most widely
occurring materials in the earth’s surface and in fact it is composed
almost entirely of them in vast areas.” 

 Thus, “[i]f the statute [at
issue] were so construed as to reserve to the grantor these ordinary
materials of the earth’s surface, the effect in many instances would
be to completely nullify the grant, which does not comport with
reason.” 

__________________________________________________________
purposes of Genesis’s argument, that Toll constructed at least one
building and some landscaping on the parcel.

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                         Cite as: 

                        Opinion of the Court

   ¶42 Our observations in State Land Board are not conclusive
here. There is no question that Genesis owns a one-half interest in
both the minerals and the commercial deposits of soil in the parcel.
But as we recognized in State Land Board, there is a difference
between minerals and soil. And so it is not enough for Genesis to
simply label soil a mineral and import rules from caselaw
applicable to minerals that are the subject of prospecting and
mining and are generally considered to be “more valuable than the
land in which they are contained.” 

    ¶43 Indeed, at least one court has directly addressed this issue
and has held that a reservation of soil rights does not entitle the soil
owner to the same rights that mineral owners enjoy, such as the
right to extract and remove the materials. In Norken, the deed at
issue specifically reserved both minerals and “gravel deposits” as
part of the subsurface estate, but the Alaska Supreme Court
declined to treat gravel rights as part of the mineral estate. 

, 627–28. The court explained:
       The nature of gravel as the essence of the soil
       illustrates why it would be inappropriate to import
       mineral doctrines as a matter of law to the
       circumstances of this case. . . . [Because] removal of
       the gravel necessarily means destruction rather than
       mere use of the surface . . . [w]here, as here, the
       substance concerned is not a mineral in the legal
       sense and the deed contains no indication on its face
       that the parties intended the substance to be
       removed, we find no justification for concluding as a
       matter of law that a mere reservation of rights entails
       the right to destroy the surface of the land.

.
    ¶44 Genesis cites no authority that reaches a different
conclusion. Instead, Genesis argues that the 1945 deed showed an
intent for soil deposits to be treated like minerals. According to
Genesis, “the deed itself defined minerals and hydrocarbons to
include ‘sand, gravel, and clay’” by providing Genesis with an
“undivided one half interest in any and all minerals, hydrocarbons,
including oil, and any and all commercial deposits of sand, gravel
and clay in or on said premises.”
    ¶45 But Genesis misreads the 1945 deed. Contrary to Genesis’s
claim, it refers to three separate categories of interests. First,
minerals. Second, hydrocarbons, including oil. And third,

                                  15
              GENESIS AGGREGATES v. TOLL SOUTHWEST
                         Opinion of the Court

commercial deposits of sand, gravel, and clay. The deed does not
define minerals and hydrocarbons to include soil. And more
importantly, even if soil was captured by the deed’s definition of
minerals, Genesis hasn’t shown that cases applying common law
principles to more valuable minerals that are usually the subject of
prospecting and mining apply with equal force to soil. In other
words, soil is different, and Genesis has not shown us why soil
should be treated like other minerals for purposes of assessing the
parties’ respective rights in the severed estate. 12
    ¶46 Finally, even if we were to apply common law mineral
doctrines to Genesis’s rights to commercial deposits of soil and
assume that Genesis’s reserved rights entitle it to extract the soil
from the parcel, the critical question for purposes of Toll’s
summary judgment motion is whether Genesis has shown that Toll
interfered with that right. We conclude that Genesis has not made
that showing.
    ¶47 Genesis contends that Toll’s development of the surface
interfered with its soil rights because Genesis would have to
“excavate through permanent structures” to access the parcel’s soil.
In other words, Genesis suggests that because it might, in the
future, want to use, remove, sell, or license its interest in the parcel’s
soil, it has been injured by Toll’s development. But there is no
evidence that Genesis uses or has plans to use the soil in this way.
    ¶48 In Togliatti, we expressed concern about a surface owner’s
interference with a mineral owner’s “present or prospective mining
operations.” 

. But because Genesis has no “present
or prospective” operations relative to the soil, it has not been
injured. The undisputed evidence shows that Toll did not remove
soil from the parcel, and thus Genesis retains the same rights with
respect to it as it did before Toll’s development. Assuming the deed
vests Genesis with the right to extract, sell, or license soil, it could
 __________________________________________________________
   12 Toll contends that because soil is different from other types of

minerals, we should adopt a rule that “when a grantor reserves
rights in sand, gravel, and clay, absent express language or clear
evidence to the contrary, all he is reserving is the right to royalties,
should the sand, gravel, and clay ever be developed for commercial
purposes . . . . Otherwise . . . the reservation would destroy the
grant.” Adopting this rule might make sense. But because we need
not generally define the extent of a party’s subsurface rights in soil
to resolve this case, we decline Toll’s invitation.

                                   16
                         Cite as: 

                        Opinion of the Court

still attempt to exercise that right. But without evidence that
Genesis has been prevented from exercising its right, Genesis
cannot show that Toll “interfered with any present or prospective
. . . operations” of Genesis. See 

 Thus, the district court was
correct to conclude that Genesis has suffered no harm by Toll’s use
of the soil as fill on the parcel and that Genesis’s claim fails as a
matter of law. 13
   B. Genesis Has Not Shown that It Is Entitled to Compensation
      for Toll’s Use of the Parcel’s Soil
   ¶49 Genesis next contends that Toll’s use of the parcel’s soil for
even its on-site development constituted actionable interference
with what Genesis describes as its “exclusive right to possess, use,
and appropriate” the parcel’s subsurface materials. (Quoting
Lightning Oil, 

.) Genesis advances two theories in
support of this claim. First, it contends that it is entitled to
compensation for that interference because Toll moved soil within
the parcel from its natural resting place. Second, it asserts that
because Toll saved money by using Genesis’s soil and not having

__________________________________________________________
   13    The parties disagree about whether and how the
“accommodation doctrine” should be applied in this case. The
accommodation doctrine provides that the owner of mineral rights
may “extract [minerals] notwithstanding surface damage,” but
“where there is a reasonable and practical alternative which could
be pursued to minimize damages to the fee holder, that should be
done.” Flying Diamond Corp. v. Rust, 

 (Utah 1976);
see also City of Lubbock v. Coyote Lake Ranch, LLC, 

(Tex. App. 2014), (discussing the accommodation doctrine
generally). Whether or not this doctrine applies in the soil context
is an open question. But even if we assume the doctrine is generally
applicable, resolution of its potential application here would be
premature. See Archuleta v. State, 

, 

(“An issue is not ripe if there exists no more than a difference of
opinion regarding the hypothetical application of a provision to a
situation in which the parties might, at some future time, find
themselves.” (cleaned up)). Because Genesis has made no attempt
to access the parcel’s subsurface materials, there is no actual
dispute over the feasibility of soil extraction from the parcel and no
evidence of how any attempt to extract soil would impact the
surface estate. Thus, we leave resolution of this question for
another day.

                                  17
              GENESIS AGGREGATES v. TOLL SOUTHWEST
                         Opinion of the Court

to import soil for fill, Genesis is entitled to a share of the cost
savings.
   ¶50 In support of its first theory, Genesis argues that a surface
owner must purchase the soil from a subsurface owner to use it
even for ordinary surface uses. As Genesis put it, “We’re entitled to
50% when our interest is used . . . [and] when [Toll] pay[s] for it,
they get [title to] it.” In other words, “it’s kind of a sale. [Toll] used
our stuff, and . . . in essence we’re selling it to [them] now in the
form of damages.”
    ¶51 But this novel theory finds no support in contract or
caselaw. Genesis points to no language in the 1945 deed, nor any
precedent from this court or sister states, that requires a surface
owner to compensate the subsurface owner for displacing soil
within the bounds of the property. Instead, Genesis relies on a
statement from the Texas Supreme Court in Lightning Oil that “a
mineral lease . . . includes the exclusive right to possess, use, and
appropriate gas and oil.” 

 (cleaned up).
    ¶52 Genesis’s reliance on Lightning Oil is misplaced. Lightning
Oil concerns mineral leases in the oil and gas context and does not
address the rights associated with soil ownership. See 

 As we
have explained, soil is not considered a “mineral” under common
law, and Genesis has not persuaded us that minerals and
commercial soil deposits are equivalent. See supra ¶¶ 41–43. So, it is
not apparent that Genesis enjoys the rights described in Lightning
Oil with respect to the parcel’s soil. But even if we were to conclude
that Lightning Oil applies here, the case itself undermines Genesis’s
argument. While the Lightning Oil court makes clear that a mineral
lease grants rights to “explore, obtain, produce, and possess”
minerals, it also explains that a mineral lease does not grant the
right to control “the specific place or space where the minerals are
located,” meaning that “an unauthorized interference with the place
where the minerals are located constitutes a trespass as to the
mineral estate only if the interference infringes on the mineral
lessee’s ability to exercise its rights.” 

. So, under
Lightning Oil, Genesis would be entitled only to the soil itself,
without regard to its position on the property. See 

 This principle
undermines Genesis’s assertion that because Toll moved soil to a
different location within the parcel it is entitled to compensation.
   ¶53 Additionally, Genesis’s assertion that it is entitled to
compensation for Toll’s use of the soil is inconsistent with our
opinion in Togliatti, which makes clear that a surface owner “has an


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                         Cite as: 

                        Opinion of the Court

absolute right in the absence of an agreement to the contrary to the
necessary support of his land” and “may improve and use the
surface as he sees fit.” 

. Nowhere in Togliatti does
this court suggest that a surface owner’s right to use the surface is
subject to an obligation to compensate the subsurface owner for
such use. In fact, as we have explained, courts that have examined
the rights of soil owners have reached the opposite conclusion: that
a surface owner “is free to develop the property and [the subsurface
owner] is not entitled to compensation for [materials] that are not
exported from the site.” Santiago Homes, 189 P.3d at 825; see also
Joshi, 

 (explaining that a surface owner is “entitled to
utilize the surface soil” but “must compensate [the subsurface
owner] if they export sand and gravel” from the property).
   ¶54 Second, Genesis alternatively argues that it is entitled to
compensation because Toll benefitted financially from using the
parcel’s soil. Specifically, because Toll did not have to purchase fill
from a third party and thus “saved . . . money” in developing the
parcel by using Genesis’s soil, Genesis argues that it is “entitled to
50% of what it would have cost [Toll] to buy that fill elsewhere.”
   ¶55 Genesis, however, cites no authority to support its view
that a surface owner must compensate a subsurface owner
whenever it derives some benefit from using the soil on the
property. And its reliance on the theories of conversion and unjust
enrichment are equally unavailing.
     ¶56 To prevail on its claim for unjust enrichment, Genesis
would have to show that: (1) it conferred a benefit on Toll, (2) Toll
“appreciate[d] or ha[d] knowledge of the benefit,” and (3) Toll
retained the benefit “under such circumstances as to make it
inequitable for [Toll] to retain the benefit without payment of its
value.” See Desert Miriah, Inc. v. B & L Auto, Inc., 

,

 (cleaned up). Here, Genesis has not shown that its
unjust enrichment theory is viable because it has not shown that
Toll’s use of the parcel’s soil in a manner consistent with surface
ownership could be considered “inequitable” under the
circumstances. See 

 By purchasing the surface rights to the parcel,
Toll acquired the right to “improve and use the surface as [it] sees
fit.” Togliatti, 

. So, by using the parcel’s soil for
development on the parcel’s surface, Toll was exercising its lawful
rights as the surface owner. Further, any benefit that Toll enjoyed
from its use of the parcel’s soil cannot be said to be conferred by



                                  19
              GENESIS AGGREGATES v. TOLL SOUTHWEST
                         Opinion of the Court

Genesis when Toll, as the surface owner, has an independent right
to “use the surface.” See id.; Desert Miriah, 

.
    ¶57 Genesis’s conversion theory fares no better. A claim for
conversion requires “an act of wilful interference with a chattel,
done without lawful justification by which the person entitled
thereto is deprived of its use and possession.” Lawrence v.
Intermountain, Inc., 

, 

 (cleaned
up). Genesis has not made this showing. To start, Genesis has not
shown that the soil Toll moved within the parcel is subject to a
conversion claim. Courts have held that “earth, sand, or gravel in
its original bed is a part of the realty and, as such, cannot be the
subject of an action for conversion.” See, e.g., Collins v. Intervest, Inc.,

 (Fla. Dist. Ct. App. 1982). Only when soil has
been “wrongfully severed from its original bed, removed and
placed on other land” does it become personal property that may
be converted. See 

; see also Dahlstrom Corp. v. Martin, 

 (Tex. Civ. App. 1979) (“Earth or sand in its original
bed is a part of realty and as such cannot be a subject of conversion;
but where it has been wrongfully severed and removed, it becomes
personalty for the conversion of which an action will lie.”). 14 Here,
because Genesis has not produced any evidence that soil was


__________________________________________________________
   14 The terms “severed” and “removed” in these cases appear to

refer to soil that is excavated and taken off the property, rather than
merely displaced within it. See Collins, 

 (alleging
that the appellee “trespassed upon [the appellants’] land and
removed large amounts of soil and fill material” and then “placed
the soil upon nearby parcels of land”); Dahlstrom, 

(“It is undisputed that employees of the Dahlstrom Corporation
entered upon a tract owned by the appellees without permission
and thereafter removed some 70,000 cubic yards of soil from the
land. This soil was removed from the premises . . . .”). Here, though
the soil was removed from its natural bed, it remained within the
bounds of the parcel. Cf. Schulenberg v. Harriman, 

 (1874) (“Whilst the timber was standing it constituted a part
of the realty; being severed from the soil its character was changed;
it became personalty . . . .”). But we ultimately need not resolve the
question of whether the displaced soil here constitutes realty or
personalty, because Genesis’s conversion claim fails on other
grounds.

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                         Cite as: 

                        Opinion of the Court

removed from the parcel, Genesis has not shown that its conversion
theory applies.
    ¶58 Next, even assuming the soil that remains on the parcel is
subject to an action for conversion, the undisputed facts show that
Toll had “lawful justification” for its use of the parcel’s soil. See
Lawrence, 

 (cleaned up). As the surface
owner, Toll has the right to use the land in ways necessary for
development, including reasonable use of subsurface materials. See
Togliatti, 

. Because Genesis has not shown that the
soil that remained on the parcel is subject to conversion or that
Toll’s use of it was unlawful, its conversion claim fails for this
additional reason.
   ¶59 In sum, Genesis has not presented a viable legal theory
supporting its assertion that it is entitled to compensation for Toll’s
use of the parcel’s soil. We therefore affirm the district court’s
conclusion that Genesis “has suffered no damage” as a result of
Toll’s cut-and-fill operations on the parcel.
                          CONCLUSION
    ¶60 We conclude that the district court correctly granted
summary judgment in favor of Toll. Genesis failed to provide any
evidence to support its allegation that Toll removed soil from the
parcel. Additionally, Genesis has not shown that Toll’s on-site use
of the parcel’s soil constituted actionable interference with
Genesis’s one-half interest in any commercial deposits of sand,
gravel, and clay in or on the parcel. Accordingly, we affirm the
district court’s grant of summary judgment in Toll’s favor.




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