Abbey v. State, 8844
| Decision Date | 29 November 1972 |
| Docket Number | No. 8844,8844 |
| Parties | Alice ABBEY, Plaintiff and Appellant, v. STATE of North Dakota, Acting through the Board of University and School Lands, and the Knife River Coal Mining Company, Defendants and Respondents. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Inconsistent defenses are permitted under Rule 8(e) of the North Dakota Rules of Civil Procedure.
2. Under Rule 52(a) of the North Dakota Rules of Civil Procedure, the trial
court's findings of fact are not to be set aside unless clearly erroneous.
3. For reasons stated in the opinion, the trial court's finding that the land involved in the instant case was public-building land acquired by the State under Section 12 of the Enabling Act is affirmed.
4. Estoppels against the public are little favored. They should not be invoked except in rare and unusual circumstances, and may not be invoked where they would operate to defeat the effective operation of a policy adopted to protect the public.
5. It is essential that the party invoking the doctrine of estoppel should have been misled by the acts or conduct of the party against whom the estoppel is claimed, that he changed his position in reliance thereon, and was justified in so doing, and that he was prejudiced thereby, or that a benefit resulted to the party against whom the estoppel is claimed.
6. For reasons stated in the opinion, it is held that the doctrine of estoppel does not apply in the instant case.
7. Under Stare decisis, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is not sacrosanct.
8. For reasons stated in the opinion, it is held that the doctrine of Stare decisis does not apply in the instant case.
9. The doctrine of Ejusdem generis, by which general words in a statute following particular words are presumed to relate only to things of the same kind or class as the particular words, is applicable to the construction of constitutional provisions.
10. For reasons stated in the opinion, it is held that the prohibition against the sale of coal lands contained in Section 155 of the State Constitution as it existed prior to its amendment in 1960 does not apply to land acquired by the State from the federal government as public-building land.
11. For the period of time pertinent to the instant case, since public-building land is not included within Section 15--0601 of the Revised Code of 1943, it follows that such land acquired either under Section 12 or Section 17 of The Enabling Act is governed by Chapter 15--07 of the North Dakota Revised Code of 1943.
12. For reasons stated in the opinion, it is held that the reservation contained in the patents to the plaintiff's predecessor in interest was sufficient to alert the purchaser to the rights reserved to the State.
13. For reasons stated in the opinion, it is held that the Legislature in enacting Section 38--0901, North Dakota Revised Code of 1943, intended that the word 'minerals' include coal.
Raymond M. Hagen, Beulah, Sperry & Schultz, Bismarck, and Harvey J. Miller, Dickinson, for plaintiff and appellant.
Helgi Johanneson, Atty. Gen., and Thos. O. Smith, Asst. Atty. Gen., for the State of North Dakota.
Pearce, Engebretson, Anderson & Schmidt, Bismarck, for Knife River Coal Mining Co.
By complaint dated the 25th of November 1968, Alice Abbey commenced an action to quiet title to the South Half of Section 12 in Township 143 North, Range 88 West of the Fifth Principal Meridian, in Mercer County, North Dakota.
It is asserted in the complaint that Mrs. Abbey acquired title to this property from Charles Herman, who acquired title to it under two patents executed by the Board of University and School Lands of the State of North Dakota; that the State has claimed an interest in fifty percent of all the coal in the premises, and that through a lease with the defendant Knife River Coal Mining Company the State has received approximately $37,000 in coal royalties; that the said coal company claims rights as a lessee of the State of North Dakota.
Mrs. Abbey asks that the title to all the coal in the premises be quieted in her name and that the State be required to account to her for all money received by the State in payment of coal royalties for coal removed from the premises.
In its answer the State denies that Mrs. Abbey is the fee owner of all the coal in the premises and affirmatively alleges that the land is coal land and that coal lands of the State 'shall never be sold, and have not been sold, and that said Defendant State of North Dakota is the fee title owner of the described premises subject to a valid and subsisting coal lease to defendant, Knife River Coal Mining Company.'
The State also 'affirmatively alleges that the Defendant, State of North Dakota, has claimed and does claim an interest in and to 50% Of all coal in and under the premises pursuant to Section 38--09--01 of the North Dakota Century Code and Section 38--0901 of the North Dakota Revised Code of 1943 and that the Defendant, Knife River Coal Mining Company, claims rights as a lessee of the State of North Dakota, under a certain coal mining lease executed by the State of North Dakota.'
The State asks that title to the fee be quieted in it and that it recover from Mrs. Abbey all royalty payments made to her under her lease to Knife River Coal Mining Company.
In its separate answer, the defendant Knife River Coal Mining Company asserts that it has one lease from Mrs. Abbey, covering fifty percent of all the coal in the said property, and one lease from the State, covering the other fifty percent of the coal in the property, and it asks that its leasehold interests in the coal be declared to be valid.
Mrs. Abbey's reply to the State's answer generally denies each and every affirmative allegation set forth therein.
The case was tried by the Honorable Norbert J. Muggli upon a stipulation of facts and exhibits, which reads:
'The above entitled action is herewith admitted to the Court, for decision, by all parties thereto upon the following agreed statement of facts, together with the exhibits and pleadings listed, which shall constitute the case upon which the Court may render Judgment, that the pleadings in the above action constitute the following:
'That all of the above Pleadings have been duly served on parties hereto, and all parties agree that the Court has jurisdiction of the subject matter of this case, and that said pleadings are to be considered by the Court as part of this case; the Court shall be authorized to render Judgment upon the case, without a jury trial, subject to the right of either party to appeal from said Judgment as provided by law.
'The parties hereto agree that the following may be admitted as exhibits in the above case for the consideration of the Court in rendering Judgment:
'Plaintiff's Exhibit:
'No. 1: Mercer County Abstract #24817, covering the real property to which title is in controversy.
'No. 2: Certified copies of the original patents from the State of North Dakota to Chas. Herman on the real property to which title is in controversy.
'No. 3: Certified copies of the two Coal Leases on the property from Alice Abbey to Knife River Coal Mining Company and one from State of North Dakota to the Knife River Coal Mining Company.
'No. 4: Statement of all royalties that have been paid for the Defendant Knife River Coal Mining Company to the Plaintiff Alice Abbey, and to the Defendant, State of North Dakota.
'Defendant's Exhibits, State of North Dakota:
'No. 1: Affidavit of Publication in regard to the land sales.
'That the parties hereto agree to file with the Court within twenty (20) days after the filing of this Stipulation, Briefs in which the issues of law to be decided by the Court shall be stated by respective parties hereto; it being further agreed that the parties hereto agree to supply to the Court by Stipulation such further facts or exhibits that the Court may deem necessary, upon request, for a judicial determination of the issues contained in the pleadings.'
As has been previously pointed out, the State in its answer asserts inconsistent defenses: one that the State owns all of the coal in the property described, and the other that the State owns one-half of the coal therein. Apparently, during the trial of the matter, the State abandoned its contention that it owned all of the coal in this particular property and relied upon its contention that it owned fifty percent of the coal.
Inconsistent defenses are permitted under Rule 8(e) of the North Dakota Rules of Civil Procedure. The pertinent part of Rule 8(e) reads:
'(e) Pleading to be concise and direct--Consistency.
'(1) * * *
'(2) * * * A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both. * * *'
In its memorandum opinion of December 14, 1971, the trial court in essence concluded that this property was acquired by the State of North Dakota from the Federal Government under Section 12 of The Enabling Act for public buildings at the State capital for legislative, executive, and judicial purposes; that only land granted to the State for the support of common schools under Section 10 of The Enabling Act was subject to the provision in Section 155 of the Constitution of North Dakota () prohibiting the sale of coal lands of the State; that the patents whereby Mrs. Abbey's predecessor acquired title to the property were subject to all rights and privileges vested in the State of North Dakota under the provisions of the Constitution and the laws of the State; that under Section...
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