Dauphin Island Property Owners Ass'n v. Callon Institutional Royalty Investors I

• Decision Date: 22 January 1988
• Citation: 519 So.2d 948
• Parties: DAUPHIN ISLAND PROPERTY OWNERS ASSOCIATION v. CALLON INSTITUTIONAL ROYALTY INVESTORS I, etc., et al. 85-1074.
• Court: Alabama Supreme Court

Page 948

519 So.2d 948

DAUPHIN ISLAND PROPERTY OWNERS ASSOCIATION v. CALLON INSTITUTIONAL ROYALTY INVESTORS I, etc., et al.

85-1074.

Supreme Court of Alabama.

Jan. 22, 1988.

Barry Hess of Hess, Atchison & Horne, Mobile, for appellants.

Conrad P. Armbrecht II, Douglas L. Brown, and David E. Hudgens of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees.

ALMON, Justice.

The issue in this case is whether a perpetual, nonparticipating royalty interest in minerals violates the rule against perpetuities. The Dauphin Island Property Owners Association ("the Association") filed this action, requesting the court to declare that a 1981 royalty deed from the Association to Dan Dumont was void and to quiet title to the subject property in the Association. The complaint named as defendants Dumont and Callon Institutional Royalty Investors I, a Mississippi limited partnership ("Callon"). Other defendants were later added, but they, along with Callon, hold only as successors in interest to Dumont, so the issues as to the Association's royalty deed control the case.

The trial court granted summary judgment for the defendants, holding that the Association's royalty deed "is valid and effective in accordance with its terms and provisions, and [that] the interest conveyed thereby does not violate the rule against perpetuities."

The Association sold to Dumont "a royalty interest free of the costs of production, which is equal to ... 1/8th of the whole of any oil, gas, ... or any other minerals ... produced from an undivided 234/350 interest in the minerals in, on and under" the described property. The provisions of the deed now alleged to violate the rule against perpetuities are contained in the following paragraphs:

"This sale and transfer is made and accepted subject to that certain Oil, Gas and Other Minerals Lease from [the Association] to Shell Oil Company, dated February 14, 1980, but the royalties hereinabove described shall be delivered and/or paid to [Dumont], his heirs and assigns, out of and deducted from the royalties reserved to Lessor in said lease. This sale and transfer, however, is not limited to royalties accruing under said lease presently affecting said lands, but the rights herein granted are and shall remain a charge and burden on the interest in minerals herein described and binding on any future owners or lessors of the same, and, in the event of the termination of any present lease, the said royalties shall be delivered and/or paid out of the whole of any oil, gas or other minerals produced from said interest in minerals by the owner, lessee or anyone else operating thereon.

"The [Association] herein reserves the right to grant future leases affecting said interest in minerals so long as there shall be included therein, for the benefit of [Dumont] the royalty rights herein conveyed; and the [Association] further reserves the right to collect and retain all bonuses and rentals paid for or in connection with any future lease or accruing under the lease now outstanding."

The rule against perpetuities provides that no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. Earle v. International Paper Co., 429 So.2d 989 (Ala.1983); Code 1975, § 35-4-4. The Association's contention is that the interest conveyed by its royalty deed does not vest within the period of the rule because it "is contingent both upon the production of oil, gas or other minerals on the lands and upon the execution of future leases ¹ covering said land, neither of which is required to occur within the time limit."

This argument derives from two Kansas cases: Lathrop v. Eyestone, 170 Kan. 419, 227 P.2d 136 (1951), and Cosgrove v. Young, 230 Kan. 705, 642 P.2d 75 (1982). Lathrop held two conveyances of royalty interests void due to the rule against perpetuities. In Cosgrove, relying upon that decision in Lathrop, the court stated:

"We conclude that the trial court correctly held that the instrument was in violation of the rule against perpetuities and, hence, null and void. We are not unmindful that some other jurisdictions might well reach a different result in applying their case law to the issue herein. However, the parties hereto seek no alteration of our existing case law and we see no compelling reason for change."

230 Kan. 715, 642 P.2d at 84.

The dissent in Cosgrove, however, pointed out that the Lathrop decision has been uniformly criticized and seldom, if ever, followed outside of Kansas. The most telling criticism in that dissent is in a quotation at 230 Kan. 724, 642 P.2d 89 from 2 Williams & Myers, Oil & Gas Law § 324.4, pp. 59-60:

"To hold perpetual royalty to be too remote is to confuse the value of the right with the right itself. From the time the executive delivers or accepts the deed, he is bound to account to the non-executive for a fraction of the oil; the duty may not be onerous for there may never be any oil; but the lack of production does not remove the duty."

The defendants make the same point when they argue that their royalty is vested in interest, though not vested in possession. They cite Hanson v. Ware, 224 Ark. 430, 274 S.W.2d 359 (1955), as the leading case establishing that a perpetual, non-participating royalty interest does not violate the rule against perpetuities. That entire case is well reasoned and worth reading, and we quote a pertinent passage:

"The appellees' estate was doubtless speculative in value, but the uncertainty stemmed from a fundamentally different reason from that which makes an ordinary contingent remainder an estate of doubtful worth.... The appellees' title being complete, the doubt is occasioned not by the possibility that some one else may acquire the property but by the possibility that there may in fact be no oil and gas within the land. In short, the typical contingent remainderman has an uncertain interest in the fee simple, while these appellees have a fee simple interest in the uncertain.

"A contingent future interest is one which may eventually become vested, but here the difficulty lies in the attempt to find a satisfactory date upon which the appellees' estate, if regarded as future and contingent, might be said to vest. The appellant suggests that the estate would vest upon the execution of an oil and gas lease, but this position is not theoretically sound. Suppose, for example, that a lease were executed and expired by its terms without production; would the estate then again become contingent, awaiting a second vesting upon the making of another lease? A vested estate is by definition vested for all time; the concept itself precludes the possibility of a further contingency.

"It might also be argued that the estate would vest upon the actual production of oil and gas--the view to which the Kansas court was driven by reason of the royalty interest being considered as personal property. But in Arkansas the royalty interest is real property, and the severed oil or gas is personalty; there is no need to confuse the two. A particular producing well might be abandoned at any time, and even if operated to exhaustion it would drain only the oil-bearing stratum that it had penetrated, leaving untouched other deposits that might lie above or below. It is hard for us to conceive of an estate in real property which vests barrel by barrel or stratum by stratum. In the analogous case of a profit a prendre, such as the perpetual right to take game or fish from another's land, the estate in real property is a present vested interest which is unaffected by the rule against perpetuities. Gray, The Rule Against Perpetuities (4th Ed.), § 279. Although the owner of such a privilege acquires a personal property interest whenever he bags a duck or lands a fish, this action is merely an incident in the enjoyment of the estate in real property."

224 Ark. at 436-37, 274 S.W.2d at 362-63.

The parties argue over the question of whether a royalty interest in Alabama is an interest in realty or in personalty, citing Nelson v. Teal, 293 Ala. 173, 301 So.2d 51 (1974); Locke v. Locke, 291 Ala. 344, 280 So.2d 773 (1973); McCall v. Nettles, 251 Ala. 349, 37 So.2d 635 (1948); and Kilfoyle v. Wright, 300 F.2d 626 (5th Cir.1962). Clearly a "mineral interest" is real property, see Nelson and Locke, and the defendants argue that a royalty...