Scully v. Overall, 67945
| Citation | 17 Kan.App.2d 582,840 P.2d 1211 |
| Decision Date | 13 November 1992 |
| Docket Number | No. 67945,67945 |
| Parties | Lewis Joseph SCULLY and Judith K. Scully, husband and wife, Appellants, v. Cleve Buford OVERALL and Judy A.C. Overall, husband and wife; and J.C.B. Resources, Inc., et al., Appellees. |
| Court | Court of Appeals of Kansas |
Syllabus by the Court
1. The Kansas mineral interest lapse statutes, K.S.A. 55-1601 et seq., are discussed and construed.
2. A mineral interest lapses and reverts to a current surface owner if unused for 20 years and no statement of claim is filed in accordance with the provisions of K.S.A. 55-1604.
3. A mineral interest is not extinguished or vested in a surface owner even after 20 years of nonuse when a mineral interest owner files a statement of claim within 60 days from the date of publication of notice of lapse by the surface owner under K.S.A. 55-1604(b)(1).
Dan E. Turner and Phillip L. Turner, Topeka, and Stanley R. Ausemus, Emporia, for appellants.
Kevin F. Mitchelson, Fred Mitchelson, Samuel J. Marsh, and John H. Mitchelson, of Wheeler & Mitchelson, Chartered, Pittsburg, and Steven B. Doering, of Law Offices of Steven B. Doering, Garnett, for appellees.
Before RULON, P.J., ELLIOTT, J., and E. NEWTON VICKERS, District Judge Retired, assigned.
Plaintiffs Lewis Joseph Scully and Judith K. Scully appeal the trial court's granting of the motion of defendants Cleve Buford Overall, Judy A.C. Overall, and J.C.B. Resources, Inc., for judgment on the pleadings, holding that the Kansas mineral interest lapse statutes, K.S.A. 55-1601 et seq., entitle a mineral owner, who does not take any affirmative steps to maintain a mineral interest for over 20 years, to preserve the mineral interest by filing a statement of claim within 60 days after the surface owner files a notice of lapse. We affirm.
On April 26, 1961, plaintiffs Lewis and Judith Scully purchased real estate located in Anderson County, Kansas, from defendant Cleve Buford Overall. The contract excepted "the oil and gas in place which is reserved by the Vendor."
On August 1, 1991, the Scullys published a notice of lapse of mineral interest in The Anderson Countian, a local newspaper of general circulation in Anderson County.
On August 8, 1991, the Scullys filed a notice of lapse of mineral interest, claiming that no minerals from the property were used for 20 years and that the ownership of any mineral should revert to the Scullys, the current surface owners.
On August 12, 1991, the Overalls received a copy of the notice by registered mail from the Scullys regarding lapse of the mineral interest. On August 14, 1991, the Overalls filed a statement of claim to mineral interest in the office of the Register of Deeds of Anderson County.
On December 16, 1991, the Scullys filed a petition against the Overalls and J.C.B. to quiet title to real estate.
On January 9, 1992, the Overalls and J.C.B. answered, generally denying the allegations. The Overalls and J.C.B. jointly filed a motion for judgment on the pleadings on January 27, 1992.
The trial court granted the Overalls' and J.C.B.'s motion, holding as a matter of law that the Overalls' mineral interests were not extinguished or vested in the Scullys.
This appeal was taken from the trial court's granting of defendants' motion for judgment on the pleadings. K.S.A.1991 Supp. 60-212(c) provides:
No evidence outside the pleadings was presented to the trial court in consideration of this motion. Although there were "additional undisputed facts" alleged in the Scullys' response and objection to the joint motion for judgment on the pleadings, these are the same facts alleged in their petition to quiet title.
A motion for judgment on the pleadings is based upon the ground that the moving party is entitled to a judgment on the face of the pleadings themselves. In considering a defendant's motion for judgment on the pleadings, the question is whether, upon the admitted facts, the plaintiff has stated a cause of action. Tabor v. Lederer, 205 Kan. 746, 748, 472 P.2d 209 (1970). The Scullys are mistaken in treating the trial court's decision as the granting of summary judgment.
The primary issue before us is whether the Overalls' mineral interests lapsed and were extinguished and became vested in the surface owners, the Scullys, under the Kansas mineral interests lapse statutes, K.S.A. 55-1601 et seq. This is the first case to interpret these statutes since their enactment in 1983.
The pertinent statutes are set out in full.
"An interest in coal, oil, gas or other minerals, if unused for a period of 20 years, shall lapse, unless a statement of claim is filed in accordance with K.S.A. 55-1604, and the ownership shall revert to the current surface owner."
"(a) A mineral interest shall be considered to be used when:
(1) There are any minerals produced under the interest;
(2) operations are being conducted on the interest for injection, withdrawal, storage or disposal of water, gas or other fluid substances;
(3) rentals or royalties are being paid by the owner of the interest for the purpose of delaying or enjoying the use or exercise of the mineral rights;
(4) the use or exercise of the mineral rights is being carried out on a tract with which the mineral interest may be unitized or pooled for production purposes;
(5) in the case of coal or other solid minerals, there is production from a common vein or seam by the owners of the mineral interests; or
(6) taxes are paid on the mineral interest by its owner.
"(b) Any use pursuant to or authorized by the instrument creating the mineral interest shall be effective to continue in force all rights granted by the instrument."
The facts are undisputed in ...
To continue reading
Request your trial
-
Koss Const. v. Caterpillar, Inc.
...on the pleadings, the question is whether, upon the admitted facts, the plaintiff has stated a cause of action. Scully v. Overall, 17 Kan.App.2d 582, 584, 840 P.2d 1211,rev. denied 252 Kan. 1093 "A motion for judgment on the pleadings serves as a means of disposing of a case without trial w......
-
Nickelson v. Bell, 114,507
...of owner for the purposes of unitization). Additionally, the single Kansas case concerning our mineral lapse statute, Scully v. Overall , 17 Kan.App.2d 582, 840 P.2d 1211, rev. denied 252 Kan. 1093 (1992), provides little guidance. There, the plaintiffs essentially argued that a mineral int......