Utah Supreme Court Affirms Surface Owner’s Right to Uncompensated On-Site Use of Soil in Severed Estates
Commentary on Genesis Aggregates B v. Toll Southwest, 2025 UT 28

Introduction

Genesis Aggregates B, LLC & Genesis Aggregates G, LLC v. Toll Southwest LLC concerns a tiny, 0.225-acre parcel on Utah County’s Traverse Mountain. Genesis owns a one-half undivided interest in the “commercial deposits of sand, gravel and clay” beneath the surface; Toll owns the entire surface estate and the remaining half of the subsurface. When Toll graded the parcel—cutting soil from higher portions and filling lower spots for development—Genesis sued, alleging that Toll (1) exported and sold thousands of cubic yards of soil and (2) wrongfully used Genesis’s one-half share on-site without compensation.

The Fourth District Court entered summary judgment for Toll. On direct appeal the Utah Supreme Court, in a unanimous opinion by Justice Pohlman, affirmed. Most notably, it held that:

A surface owner may excavate and redeposit soil on the same parcel in the course of ordinary development without compensating a cotenant of the subsurface estate; compensation is required only for soil exported off-site.

This marks the Court’s first explicit treatment of rights in “commercial deposits of sand, gravel, and clay” distinct from hard minerals, establishing a modern Utah rule for severed soil estates.

Summary of the Judgment

• Off-site removal claim: Genesis offered no evidence that Toll exported soil from the parcel. Under Utah R. Civ. P. 56, a party bearing the burden of proof must produce affirmative evidence; mere speculation or an attack on the opposing witness’s credibility is insufficient. The Court therefore upheld summary judgment on all claims premised on export.
• On-site “cut-and-fill” claim: Drawing on Stephen Hays Estate v. Togliatti (1934) and persuasive Washington precedent (Saddle Mountain Minerals v. Joshi and … v. Santiago Homes), the Court ruled that Toll’s use of soil in situ did not “interfere” with Genesis’s rights. The surface estate inherently includes rights to necessary support, grading, and improvement unless an agreement states otherwise.
• Alternative theories (conversion, unjust enrichment, fiduciary duty, etc.): All failed because Toll’s actions were lawful exercises of its surface rights and Genesis could not establish essential elements such as wrongful dominion, inequitable retention, or damages.
• Result: District court judgment affirmed in full; Genesis takes nothing.

Analysis

1. Precedents Cited and Their Influence

• Stephen Hays Estate, Inc. v. Togliatti, 38 P.2d 1066 (Utah 1934) — Foundational Utah case on severed estates. Establishes that a surface owner has “an absolute right … to the necessary support of his land” and may cultivate or erect structures so long as mineral extraction is not unreasonably impeded.
• Saddle Mountain Minerals, LLC v. Joshi, 95 P.3d 1236 (Wash. 2004) (en banc) and Saddle Mountain Minerals, LLC v. Santiago Homes, Inc., 189 P.3d 821 (Wash. Ct. App. 2008) — Persuasive authority distinguishing on-site use from export. Both cases held that a surface owner owes compensation for exported sand/gravel but not for on-site grading. The Utah Court adopted this framework nearly wholesale.
• State Land Bd. v. Dept. of Fish & Game, 408 P.2d 707 (Utah 1965) — Discusses the meaning of “minerals,” emphasizing that sand and gravel are usually not considered minerals for severance or reservation purposes; used to rebut Genesis’s analogy to mineral-rights caselaw.
• Federal summary-judgment authorities: Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) and derivative circuit cases guided the Court’s articulation of evidentiary burdens on summary judgment.

2. Legal Reasoning

1. Burdens on Summary Judgment: Toll, as the non-burdened party, could meet its Rule 56 burden by (a) introducing affirmative evidence soil never left the parcel, or (b) highlighting Genesis’s evidentiary vacuum. Genesis then had to proffer concrete facts—not mere credibility attacks—to create a genuine issue. Its concession of “no evidence” doomed the export claim.
2. Definition and Incidents of the Surface Estate: Reviving language from Togliatti, the Court stressed that “surface” is not a geometric plane but includes reasonable subsurface use integral to surface enjoyment (e.g., foundations, basements, grading).
3. Soil ≠ Minerals: Because sand, gravel, and clay are ubiquitous and not ordinarily “more valuable than the land,” the Court declined to import the full suite of mineral-rights doctrines (exclusive possession, dominant estate) that Genesis relied upon.
4. No Actual Interference: Genesis had neither present operations nor concrete plans to develop its soil interest. Without an actual or imminent impairment, it could not show “interference” or “waste.”
5. Rejection of Conversion/Unjust-Enrichment Theories: Soil in its natural bed remains realty. Even if personalty after severance, Toll’s use was legally justified as a cotenant surface owner, defeating the “wrongful” element of both tort and quasi-contract claims.

3. Likely Impact of the Decision

• Clear Utah Rule for Soil Reservations: Surface owners owe no compensation for in-situ use of sand, gravel, and clay unless they physically transport it off-site. Developers can confidently use native soil for grading and foundations when deeds are silent.
• Heightened Drafting Awareness: Parties who wish to guarantee payment for any use of subsurface soil must include express language in deeds, easements, or joint-development agreements. Boilerplate mineral reservations will no longer suffice.
• Guidance on Summary Judgment Strategy: The opinion underscores that credibility attacks alone cannot defeat summary judgment; plaintiffs must marshal admissible evidence or risk dismissal.
• Potential Spill-Over to Other Common Materials: While the Court limited its holding to sand, gravel, and clay, litigants may cite it for topsoil, fill dirt, peat, or decorative stone where the question is on-site use vs. export.
• Economic Effects: Residential and commercial developers may face reduced litigation risk and cost in Utah, potentially lowering development expenses where severed soil interests exist.

Complex Concepts Simplified

• Severed Estate: Think of land ownership as a “bundle of sticks.” One can split the bundle so that one person owns the surface (“what you see and build on”) and another owns the subsurface minerals (the “sticks” buried below).
• Subjacent Support: The right of the surface owner not to have the ground cave in because someone underground removes too much material—like a building needing a solid foundation.
• Cotenancy of Subsurface: Genesis and Toll each own 50 % of the soil. Unless otherwise agreed, each cotenant can use the shared property as long as it does not exclude the other — similar to two roommates both allowed to use the living room.
• Cut-and-Fill: Standard construction practice where soil is “cut” from higher spots and “filled” into lower areas to level a site. Here all cuts and fills stayed on the same 0.225-acre parcel.
• Conversion vs. Trespass vs. Waste: Conversion is wrongful dominion over personal property; trespass involves interference with real property; waste concerns permanent injury to jointly owned property. The Court concluded none applied because Toll’s actions were within its legal rights.
• Accommodation Doctrine (mentioned but not applied): A principle—mainly in oil & gas—that a mineral owner must accommodate existing surface uses when possible. The Court said any discussion here would be premature because Genesis had no current operations.

Conclusion

Genesis Aggregates B v. Toll Southwest clarifies Utah law in a niche but recurrent context: parcels where surface rights have been separated from commercially valuable, yet commonplace, soil deposits. By holding that on-site use of such soil is incident to surface ownership and requires no compensation absent express contractual terms or export off-site, the Court provides certainty to developers and subsurface interest holders alike. Litigants must now:

• Produce actual evidence, not inference, when alleging off-site removal,
• Draft deeds and reservations with precision if they intend to restrict surface use or require royalties for cut-and-fill operations, and
• Recognize that soil, unlike “true” minerals, does not automatically import the dominant-estate or exclusive-possession doctrines of mineral law.

The decision harmonizes Utah practice with persuasive Washington authority and revives nearly century-old Utah precedent, all while firmly situating Utah within the modern trend favoring reasonable surface development. Future disputes over on-site use of ubiquitous subsurface materials will almost certainly turn on the express language of the parties’ instruments rather than generalized mineral-rights doctrine.