Hayes v. Howell

• Decision Date: 26 October 1983
• Docket Number: No. 40038,40038
• Citation: 251 Ga. 580,308 S.E.2d 170
• Parties: HAYES v. HOWELL et al.
• Court: Georgia Supreme Court

Page 170

308 S.E.2d 170

251 Ga. 580

HAYES v. HOWELL et al.

No. 40038.

Supreme Court of Georgia.

Oct. 26, 1983.

Henry M. Hatcher, Jr., Hatcher, Irvin & Pressley, Atlanta, for James A. Hayes, Jr.

Shepherd L. Howell, Archer & Elsey, Cartersville, for William Harvey Howell, Jr., et al.

HILL, Chief Justice.

The Howells bring this action against Hayes for declaratory judgment under OCGA § 44-5-168 (Code Ann. § 85-407.1), claiming ownership by adverse possession of certain mineral and oil rights. The trial court granted the Howell's motion for summary judgment. On appeal, Hayes challenges the constitutionality of OCGA § 44-5-168 (Code Ann. § 85-407.1), first enacted in 1975. Ga.L.1975, p. 725.

On January 2, 1957, James A. Hayes, Jr., deeded three tracts of land to W. Harvey Howell "reserving and excepting unto the said James A. Hayes the undivided one-half of all minerals and oil rights in and to the three tracts of land hereinabove described and conveyed."

On December 21, 1966, W. Harvey Howell deeded to two other Howells the three tracts of land (minus eleven acres reserved for himself) with the following provision: "There is reserved and excepted from this conveyance the undivided one-half of all minerals and oil rights in and to the three tracts of land hereinabove described and conveyed, which were excepted by James A. Hayes in his deed to W. Harvey Howell...." The Howells will be referred to herein as the landowners and Hayes will be referred to as the mineral owner.

The parties agree that the mineral rights have never been taxed apart from the land, and that the mineral owner has never paid taxes on his mineral rights. For the past twenty-five years, the landowners have paid all taxes, and the mineral owner has made no attempt to exploit the mineral rights.

The landowners rely upon OCGA § 44-5-168 (Code Ann. § 85-407.1) which provides in part: "... whenever real property is conveyed in fee simple but the mineral rights to such property are reserved by the grantor, the owner of the real property in fee simple ... may gain title to such mineral rights by adverse possession if the owner of the mineral rights ... [has] neither worked nor attempted to work the mineral rights nor paid any taxes on them for a period of seven years since the date of the conveyance...." OCGA § 44-5-168(b)(1) (Code Ann. § 85-407.1) provides that the petition shall be brought in the county where the land is located.

The mineral owner alleges that OCGA § 44-5-168 (Code Ann. § 85-407.1) is contrary to the venue requirements of the Constitution of Georgia and is unconstitutional as a retroactive law and an impairment of the obligation of contract. He further contends that the landowners' payment of taxes inures to his benefit as co-tenant of the mineral interests.

1. The mineral owner argues that venue was improper in Bartow County, the county in which the land lies (1983 Ga. Const., Art. VI, Sec. II, Par. 2 (Code Ann. § 2-2802)), and that suit should have been brought in Fulton County, where he resides (1983 Ga. Const., Art. VI, Sec. II, Par. III (Code Ann. § 2-2803)). ¹ In so arguing, he relies on the emphasized language from White v. Gordon, 213 Ga. 730, 731, 101 S.E.2d 759 (1958): "Our law makes a distinction between suits to establish the title to land or to establish the evidence of title, and suits to recover the land upon legal title, the former being suits in equity and the latter actions at law. The above-quoted constitutional provision [providing that cases respecting title to land shall be tried in the county where the land lies] concerns actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant, for the recovery of land or recovery of the land and mesne profits. Owenby v. Stancil, 190 Ga. 50, 55, 8 S.E.2d 7 [1950]. 'One test as to whether a suit to recover land is one of ejectment simply, and is a case "respecting title to land", is whether the plaintiff can recover on his title alone, or whether he must ask the aid of a court of equity in order to recover.' Frazier v. Broyles, 145 Ga. 642, 646, 89 S.E. 743."

The mineral owner contends that since the landowners' case depends, not on the strength of their own title, but upon proof of his failure to work his mineral rights or to pay taxes on them for seven years, in order to acquire ("gain", "obtain") title under the statute, the suit is one in equity "to establish the title to the land or to establish evidence of title" and should have been filed in Fulton County. We disagree.

The landowners' suit is clearly not in equity as they seek to establish legal title by adverse possession as a matter of law in reliance on the statute. In this substantive decision, no equity is involved. No deed to the mineral owner is to be cancelled. The landowners seek to recover an interest in land by asserting a presently enforceable legal title against the defendant's mineral interest claim. Therefore, under the White v. Gordon, supra, rule, as a case at law, venue is constitutionally in the county in which the land lies as provided in OCGA § 44-5-168(b)(1) (Code Ann. § 85-407.1).

This result is not changed by the fact that this suit was brought as a declaratory judgment action. In Shaw v. Crawford, 207 Ga. 67, 60 S.E.2d 143 (1950), a declaratory judgment action involving competing chains of title for the same property, we held that where the primary and fundamental issue is legal in character, i.e., that of title to land, the venue of the case is still in the county where the land lies even though the suit is for declaratory judgment and an incidental injunction may issue to preserve the status quo. Compare Vizard v. Moody, 115 Ga. 491(1), 41 S.E. 997 (1902), predating the Declaratory Judgment Act.

The trial court did not err in failing to dismiss the case on the ground of improper venue.

2. In 1957, when the mineral owner created his undivided one-half interest in the mineral rights by reservation, the law was that such mineral rights could not be lost by mere non-user. In Brooke v. Dellinger, 193 Ga. 66, 73, 17 S.E.2d 178 (1941), it was held that mineral rights conveyed in fee simple could not be lost by adverse possession absent adverse use of the minerals themselves.

By enacting OCGA § 44-5-168 (Code Ann. § 85-407.1), the General Assembly attempted to abrogate the Brooke rule by providing that either non-user or failure to pay taxes on the mineral rights could result in a forfeiture after 7 years if an appropriate action is brought by the owner of the remaining fee after that time. This statute was ameliorated by our holding in Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (1977), that suit cannot be brought under the 1975 act until 7 years after its effective date (July 1, 1975). Accord, Johnson v. Bodkin, 241 Ga. 336, 247 S.E.2d 764 (1978). See Stith v. Morris, 241 Ga. 247(1), 244 S.E.2d 817 (1978); U.S. Fidelity Co. v. Toombs County, 187 Ga. 544(4), 1 S.E.2d 411 (1939).

Here, the seven years have passed since enactment of the 1975 law (now OCGA § 44-5-168 [Code Ann. § 85-407.1] ). But, because the rights were retained by the mineral owner prior to 1975, he contends that application of the act would violate the state constitutional prohibition against impairment of the obligation of contracts and passage of retrospective laws. "No bill of attainder, ex post facto law, retroactive law, or laws impairing the obligation of contract or making irrevocable grant of special privileges or immunities shall be passed." 1983 Ga. Const., Art. I, Sec. I, Par. X (Code Ann. § 2-110).

a. In Texaco, Inc. v. Short, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1981), the United States Supreme Court recently addressed an impairment of contracts claim under the federal constitution regarding Indiana's Dormant Mineral Interest Act. ² Under Indiana's law, a severed mineral interest not "used" for 20-year automatically lapses and reverts to the surface owner unless a claim is filed with the county recorder's office prior to the end of the 20 year period (or a 2 year grace period after the effective date of the statute). "Uses" include mining attempts, payment of rents or royalties, and payment of taxes. After recognizing the power of a state to define property rights and to condition the retention of those rights upon reasonable requirements, ³ the Supreme Court held that since "a mineral owner may safeguard any contractual obligations or rights by filing a statement of claim in the county recorder's office[, s]uch a minimal 'burden' on contractual obligations is not beyond the scope of permissible state action." Id. 454 U.S. at p. 531, 102 S.Ct. at 793.

The same is true here. The preservation of the mineral owner's claim under OCGA § 44-5-168 (Code Ann. § 85-407.1) depended only upon his use of the minerals or upon returning them for taxes. We find that, as under the federal constitutional provision, the minimal burden imposed by this statute of either using the minerals or returning them for taxes does not impair the contractual obligations involved as prohibited by the comparable provision of our state constitution. The mineral owner's contractual rights are not unconstitutionally impaired by the addition of minimal conditions imposed by the state for retaining those interests. As long as the conditions are met, the rights are the same; failure to comply with the regulatory conditions results in loss of the rights. ⁴ The trial court did not err in overruling the mineral owner's objection to granting summary judgment on this basis.

b. Unlike the federal constitution, our state constitution protects not only against the impairment of contracts, but also against retroactive (or retrospective) laws. This provision prohibits the impairment of vested rights. "To be vested, in its accurate legal sense, a right must be complete and consummated, and one of which the person...