Adams County v. Smith
| Citation | 23 N.W.2d 873,74 N.D. 621 |
| Decision Date | 31 July 1946 |
| Docket Number | 7001. |
| Court | North Dakota Supreme Court |
Rehearing Denied Aug. 24, 1946.
Syllabus by the Court.
1. The term 'mineral' as used in Ch. 136, Sess.Laws N.D.1941, includes coal.
2 Ch. 136, Sess.Laws N.D.1941, impresses upon all transfers of land to which it applies, reservations in favor of counties making the transfers, of fifty per cent of coal found on or underlying such land.
3. Repeals by implication are not favored. It is presumed that laws are passed with deliberation and with full knowledge of previous legislative action and that where a repeal is intended express terms will be used to accomplish that result.
4. Although statutes passed at the same legislative session must, if possible, be construed together and effect given to each, nevertheless, if there is an irreconcilable conflict it will be presumed that the legislature intended that the earlier statute should give way to the later.
5. Where a statute dealing comprehensively and exclusively with a special subject is in irreconcilable conflict with a prior and more general enactment the later and more specific statute prevails.
Nels G. Johnson, Atty. Gen., and C. E. Brace, Asst Atty. Gen., for plaintiff and respondent.
W C. Crawford, of Dickinson, and Sullivans, Fleck & Higgins, of Mandan, for defendants and appellants.
On March 30, 1942, Adams County, the plaintiff herein, sold a quarter section of land that it had acquired through tax deed proceedings to the defendant LeRoy Smith. On October 16, 1942, the county issued a deed to the purchaser in the form prescribed by Sec. 15, Ch. 286, Sess.Laws N.D.1941. The deed purported to grant, bargain, sell, and convey the property to Smith and contained no reservations of any kind. After acquiring the land the purchaser spent some 16 to 20 weeks and approximately $1,000 in digging test holes and making explorations to determine the approximate amount of coal on the land available for mining. On September 10, 1943, he leased the property to the Dakota Collieries Company for coal mining purposes. The lease provided for the payment of a royalty to the lessor of 7 cents for each ton of coal mined from the land and sold during the life of the lease which might continue in effect until the salable coal upon the premises had been removed.
This action was commenced on November 20, 1944. The county seeks to recover from the defendants damages amounting to one-half of the royalties provided by the lease. The case was tried to the court without a jury, who found for the plaintiff and ordered judgment against the defendants jointly and separately for $1,430.39, being one-half the amount of royalties earned under the lease up to September 1, 1944, together with interest thereon from that date and the costs of the action. The defendants appeal from a judgment entered pursuant to the order.
The county bases its claim to a share of the royalties on Ch. 136, Sess.Laws N.D.1941, which provides:
'1. In all transfers of land hereafter made by any county of the State of North Dakota of lands now owned by such county or of lands which may hereafter be acquired by any county of the State by tax proceedings, deed, quit claim deed, or by any other method, and whether such transfers made by such county are made by deed, contract or lease, there shall be reserved to such county transferring such land fifty per cent (50%) of all oil, natural gas, and/or mineral which may be found on or underlying such land. Any transfer, deed or lease which does not contain such reservation shall be construed as if such reservation were contained therein. This act shall not apply to any lands redeemed by the former record owner thereof within one year after the date the county issues title thereof.
The first question to be determined is whether the word 'mineral' as used in the statute may be said to include coal. The statute attempts to impress a mineral reservation upon conveyances of land made by counties. It is proper, therefore, to consider the meaning given by the courts to the term 'mineral' in conveyances and reservations. The meaning and scope of this term has come before the courts in many cases. See Annotations, 17 A.L.R. 156, and 86 A.L.R. 983. These cases disclose that the word 'mineral' is not a definite term susceptible to a rigid definition applicable in all instances. It is a term susceptible of limitations or extensions according to the intention with which it is used. United States v. Harris, 5 Cir., 115 F.2d 343; Puget Mill Co. v. Duecy, 1 Wash.2d 421, 96 P.2d 571; Kalberer v. Grassham, 282 Ky. 430, 138 S.W.2d 940; Rock House Fork Land Co. v. Raleigh Brick & Tile Co., 83 W.Va. 20, 97 S.E. 684, 17 A.L.R. 144; Thompson on Real Property, Perm.Ed., Sec. 86. The North Dakota Legislature in Ch. 304, Sess.Laws, N.D.1911, Sec. 5518, Comp.Laws N.D.1913, in connection with reservations in deeds and transfers of real property referred to 'coal or other mineral deposits' indicating a legislative intent to consider coal as a mineral. This legislative construction is given added significance by the fact that Sec. 5518 was amended by Ch. 268, Sess.Laws N.D.1941, and thus came to the special attention of the same legislative assembly that enacted Ch. 136, Sess.Laws N.D.1941, the statute we are now construing.
We have found no cases holding that coal is not a mineral. Wherever the question has been considered the courts have construed the term 'mineral' to include coal. Henry v. Lowe, 73 Mo. 96; Williams v. South Penn Oil Co., 52 W.Va. 181, 43 S.E. 214, 60 L.R.A. 795; Murray v. Allred, 100 Tenn. 100, 43 S.W. 355, 39 L.R.A. 249, 66 Am.St.Rep. 740; McCombs v. Stephenson, 154 Ala. 109, 44 So. 867. We, therefore, reach the conclusion that the term 'mineral' as used in Ch. 136, Sess.Laws N.D.1941, includes coal.
The ultimate decision in this case depends upon the construction and application of three statutes all of which were passed by the Twenty-seventh Legislative Assembly and are found in the Session Laws for the year 1941. The first statute and the one on which the county relies is Ch. 136 which we have quoted above. It requires that in all transfers of lands by counties fifty per cent of all oil, natural gas and/or mineral on or under the land should be reserved to the county and that any instrument of transfer should be construed as though the reservation was contained therein. Thus the statute incorporated the reservation in all instruments of transfer to which it applies. The reservation thus made by Ch. 136 collides in so far as coal is concerned with Ch. 268, Sess.Laws N.D.1941, which provides:
The statute last quoted does not apply to state and school lands but no exception is made with respect to lands owned by counties. The inconsistency of the two statutes becomes obvious at a glance. The reservation inserted in a transfer by the county which by construction is read into each transfer cannot contain an accurate description of the coal as required by Ch. 268 and comes in direct conflict with the provision of Ch. 268 which makes the reservation without the description ineffectual.
The second statute passed by the Twenty-seventh Legislative Assembly that conflicts with Ch. 136 is Ch. 286, Sess.Laws N.D.1941. The latter act deals exclusively with tax deed proceedings and property acquired thereunder by counties. It provides for the giving of notice and fixing the date of expiration of the period of redemption on real property sold to the county for delinquent taxes, the service of such notice, the issuance of tax deed to the county in the event no redemption is made, and the appraisal of property so acquired by the county. It also provides the procedure to be followed in making a resale by the county, the form of deed to be given by the county and the effect thereof and gives to the former owner the right to repurchase the property within the time and upon the conditions set forth in the statute.
The form of deed to be used by the county when it sells property acquired through tax deed proceedings provides:
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