“Once upon a time, in a place now known as Montana, dinosaurs roamed the land.”

— Judge Eduardo Robreno, 9th Circuit Court of Appeals

“The panel’s decision imposes extraordinary uncertainty upon scientists and the public.”

— Society of Vertebrate Paleontology

Imagine for a moment that it has come time to sell the family homestead. Perhaps it belonged to grandparents, or perhaps the new generation simply has no one to farm the land and is selling to a neighboring farm owner. Before any contract is signed, before any deed is executed, one thing is almost certain to happen — a title search will be completed and a title insurance policy will be issued for the property.

There are the simple issues, of course. The exact boundaries of the property must be determined. The precise acreage has to be known. Maybe a 19th Century surveyor used a tree as a landmark, and that tree is no longer standing. Perhaps a metal pin in the ground has been displaced or removed all together.

Even more complicated is the question of what other rights people or companies might have to the land. Previous generations might have sold rights to oil or minerals beneath the property. They might have granted easements for water, sewer or electric lines. They may have permitted access across the property, or even given rights to a railroad.

None of these things are likely to stop the sale from occurring, but you as the seller owe a duty to inform the buyer of restrictions on the land, because the buyer is very likely to be bound by whatever those restrictions are, meaning that the buyer is going to want to know about them before purchasing the land. As the old law school analogy goes, owning property is like having a bundle of sticks. Just because you sell one stick (a right to enter the property) doesn’t mean that you don’t still have the rest of them, and can’t sell those to the highest bidder.

Utility easements and road easements are certainly the most common kinds of easements in this part of the country. Oil easements are not unheard of, and just to our east, the shale boom has led to an explosion of mineral and mining easements. But out in Montana, an incredibly unusual case about easements and mineral rights is now revolving around dinosaurs.

In the United States, the badlands of Montana and South Dakota have been a gold mine for dinosaur hunters. So much so, in fact, that the film version of Michael Crichton’s Jurassic Park, opens with the dinosaur hunting scientists, Alan Grant and Ellie Sattler, digging for bones in Montana.

Like most states, Montana has always divided the property rights over a parcel into its surface rights and its mineral rights. Nothing in the current case changes that. But the matter now before the Montana Supreme Court hinges on which of the two categories dinosaur bones fall into. Heretofore, they have always been considered part of the surface estate.

More than a decade ago, Jerry and Bo Severson sold the surface rights over a piece of land they inherited from their father. The buyers, Mary Ann and Lige Murray, ranched the land. The Seversons kept the mineral rights, believing that the real value might lie there. In 2006, Clayton Phipps, an amateur fossil hunter, found a “spike load” of bones on the property. The load included a predatory dinosaur and its prey, locked in combat at the moment they were trapped in the land. Then, triceratops bones were found nearby. And finally, six years ago, a complete, entirely intact T. Rex skeleton was found — one of only 12 intact T. Rex ever located.

The Rex alone could be worth several million dollars. And suddenly, the Seversons regretted their sale. They sued, claiming that the dinosaur bones were actually minerals, and therefore should be part of the mineral rights that they still held, not the surface rights held by the Murrays. For a brief moment, it appeared that a federal court might agree with them, throwing the paleontological world into disarray, but then the federal court agreed to reconsider its ruling, and instead of deciding at all, kicked the case back to the Montana Supreme Court on the grounds that it was a question of state law.

The case is still pending before the Montana high court, but the larger issue may be moot. In response to the case, the Montana legislature enacted a law providing that from this point forward, dino bones shall be part of the surface estate. Still, the new law doesn’t apply to pending lawsuits, and so the property owners, the ranchers, and the fossil hunters await their day in court.

Thus, the court gets to decide this one, but then cases of this type might just be … extinct.