Submitted: December 12, 2017
from United States District Court for the Eastern District of
Arkansas - Batesville
SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
ARNOLD, Circuit Judge.
past century, the Williamson family has leased out a plot of
Arkansas land for silica mining. The current lease, signed in
1961, provides for a term of years until 2007 and continuing
"as long thereafter as" certain activities occur on
the property. In 2015, Kathy Roberts and Karen McShane (both
née Williamson), the present lessors, sought a
declaratory judgment against Unimin Corporation, the present
lessee, that the lease created a tenancy at will. The lessors
claimed further that the lease was unconscionable and that
Unimin had unjustly enriched itself by refusing to vacate the
land when they demanded possession. After the close of
discovery, the lessors dismissed their unconscionability
claim with prejudice. The district courtgranted summary
judgment to Unimin on the remaining claims, ruling that the
lease had created a determinable leasehold, not a tenancy at
will, and so Unimin did not unjustly enrich itself by staying
in possession. The lessors appeal from that judgment, and we
review the district court's grant of summary judgment de
novo, keeping in mind that summary judgment is appropriate if
there is no genuine dispute of material fact and, viewing the
record in a light most favorable to the lessors, Unimin is
entitled to judgment as a matter of law. See Smith v.
Arrington Oil & Gas, Inc., 664 F.3d 1208, 1212 (8th
Cir. 2012). We also review the district court's
construction of the lease and its interpretation of state law
de novo. Id. The parties to this diversity action
agree that Arkansas law governs. See id.
appeal, the lessors challenge only the district court's
ruling that the lease created a determinable leasehold and
not a tenancy at will. The lease provides that the leasehold
will endure as long as "siliceous materials" are
"shipped" from the lessee's mill and at least
one of the following activities also takes place on the land:
"mining, " "mining operations, " or
"transport[ing]" siliceous materials. The lessors
contend that the term of the lease is indefinite and thus
terminable at will since it may never end of its own accord:
Unimin could, in theory, ship siliceous materials from its
mill and conduct mining operations on the land forever. No
one disputes that the lease did not create a perpetual
leasehold. See Pults v. City of Springdale, 745
S.W.2d 144, 146-47 (Ark. Ct. App. 1988). But if the lease is
not perpetual and lacks a predetermined end date, the lessors
reason, then it must have created a mere tenancy at will. The
difficulty with that logic, as the district court pointed
out, is that it misconstrues the type of indefiniteness that
creates a tenancy at will, while ignoring an entire category
of property interests under Arkansas law-determinable
law is clear that a tenancy at will exists when a lease
"is silent as to its duration, " see Cottrell
v. Cottrell, 965 S.W.2d 129, 130 (Ark. 1998), or does
not otherwise grant land to the lessee "for any definite
time." See Ritter v. Thompson, 144 S.W. 910,
911 (Ark. 1912). The lease at issue here, by contrast, leases
the property for as long as certain activities occur on it.
By specifying that the lessee may stay in possession until
those activities cease, the lease created a determinable
estate, not a tenancy at will. See Rostell v. Ark. &
Ozarks Ry. Corp., 323 S.W.2d 539, 541 (Ark. 1959);
Houston v. First Baptist Church, 242 S.W.2d 966, 967
(Ark. 1951). Under Arkansas law, a determinable leasehold is
a property "interest which may continue forever, but . .
. is liable to determine by some act or event circumscribing
its continuance or extent." See Moody v.
Walker, 3 Ark. 147, 190 (Ark. 1840). Since it has
"a definite term, " it is not subject to
cancellation at the lessor's will. Flinn v.
Cullins, 220 S.W. 449, 449-50 (Ark. 1920); see also
Cottrell, 965 S.W.2d at 130; Bodcaw Oil Co. v. Atl.
Ref. Co., 228 S.W.2d 626, 632, 635 (Ark. 1950).
lessors maintain that they may terminate this leasehold at
will because no one knows when or whether it will determine.
But the fact that it could last forever if its determining
event does not occur is irrelevant. See Union Cty. v.
Union Cty. Fair Ass'n, 633 S.W.2d 17, 19 (Ark.
1982); Coffelt v. Decatur Sch. Dist., 217 S.W.2d
347, 348 (Ark. 1949) (Coffelt II); Coffelt v.
Decatur Sch. Dist., 208 S.W.2d 1, 2 (Ark. 1948). It is
characteristic of all determinable estates that "the
reverter may not take place for an indefinite period in the
future, " if at all. See Fletcher v. Ferrill,
227 S.W.2d 448, 451 (Ark. 1950). Uncertainty over when or
whether the estate will determine does not deprive its term
of definiteness, nor covert it into a tenancy at will as long
as the term is "capable of being made certain."
See Flinn, 220 S.W. at 450. As we already noted, the
lease provides that it will expire when "siliceous
materials" are no longer "shipped" from the
lessee's mill or when "mining, " "mining
operations, " and "transport[ing]" siliceous
materials no longer occur on the land.
lessors maintain nonetheless that the leasehold here is not
determinable since some of its determining events are so
vague that no one could ascertain if they had occurred. The
lessors argue that the term "mining operations"
encompasses so many activities-like stockpiling siliceous
materials and maintaining a right-of-way -that it may be
impossible to tell when they cease. But Arkansas courts have
long enforced leases that provide they will remain in effect
for as long as mining or drilling "operations"
persist, without the slightest indication that the term was
problematically vague. See, e.g., Gray v.
Cameron, 234 S.W.2d 769, 770 (Ark. 1950); Winn v.
Collins, 183 S.W.2d 593, 596-99 (Ark. 1944); cf.
Graham v. Jonesboro, Lake City & E. R.R. Co., 164
S.W. 729, 731 (Ark. 1914). Leases that provide "the
lessee may continue holding the lease until operations
cease" have become the dominant type of lease used in
the nation's mining industry, see 4 American Law
of Mining § 131.05(2) (2d ed. 2017), and the lessors do
not direct us to a single Arkansas case holding that the term
was vague. We detect nothing unique about the use of the term
"mining operations" in this case, cf. Snowden
v. JRE Invs., Inc., 370 S.W.3d 215, 217 (Ark. 2010), and
therefore conclude that it is not vague.
lessors question, moreover, how someone can tell whether
transporting siliceous materials across the property has
ceased or was only in a lull. In construing determinable
estates, however, courts must routinely decide whether and
when a party has abandoned the purpose for which the land has
been granted. See Coffelt II, 217 S.W.2d at 348. We
do not see any vagueness here, either.
lessors maintain as well that the term "mining
operations" is ambiguous, but they do not develop the
argument. Their overriding concern seems to be that they may
find it difficult to tell whether operations are still
ongoing and that Unimin might take advantage of the
term's breadth by asserting that operations are ongoing
when they in fact are not. That simply means, however, that
the proper scope of the term is subject to conflicting
interpretations, which is true in every instance where
parties do not see eye to eye: It does not necessarily mean
the term is vague or ambiguous. See Elam v. First Unum
Life Ins. Co., 57 S.W.3d 165, 169-70 (Ark. 2001);
Garner v. XTO Energy, Inc., 2011 Ark.App. 606, at
*1-2 (Ark. Ct. App. 2011); see generally Schnuck Mkts.,
Inc. v. First Data Merch. Servs. Corp., 852 F.3d 732,
738 (8th Cir. 2017). The lessors find it significant that
Unimin's corporate representative was either unwilling or
unable to devise a comprehensive list of all the activities
that might qualify as "operations." But it is a
well-known truth about language that the meaning of a term
may be certain and clear when applied to a concrete
situation, yet "resist precise definition" in the
abstract. See United States v. Strohm, 671 F.3d
1173, 1180 (10th Cir. 2011). So we see no reason to hold that
the challenged determining events are fatally ambiguous.
addition to their possibility of reverter on the
determination of the leasehold, the lessors have a separate
right of reentry if Unimin does not timely and properly pay
them royalties, ceases to operate its mill and ship siliceous
materials for twelve consecutive months (unless one of four
specified events has prevented Unimin from such activities),
or violates any other obligation it has under the lease's
"terms, conditions or covenants." We express no
view, however, on the meaning and effect of that provision
since the lessors do not argue that it supports their ...