Johnson v. Taliaferro
Decision Date | 08 February 2011 |
Docket Number | No. 20100314.,20100314. |
Citation | 2011 ND 34,793 N.W.2d 804 |
Parties | Helen JOHNSON, Craig A. Johnson and Julia M. Johnson, Plaintiffs and Appellees v. Scott L. TALIAFERRO, Defendant and Appellant and All other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the Complaint, Defendants. |
Court | North Dakota Supreme Court |
Jessica Lee Merchant (argued) and William Eric Bergman (on brief), Minot, ND, for plaintiffs and appellees.
Sara Elizabeth Ruliffson (argued) and Orlin W. Backes (appeared), Minot, ND, for defendant and appellant.
[¶ 1] Scott L. Taliaferro appeals the district court's judgment quieting title to oil, gas and other minerals in Helen Johnson, Craig A. Johnson and Julia M. Johnson ("Johnsons"). We affirm.
[¶ 2] On January 14, 2010, Craig A. Johnson and Julia M. Johnson filed a complaint to quiet title to the mineral interest under Section 13: SW 1/4 and Section 24: N 1/2 in Bottineau County, North Dakota, and Helen Johnson filed a complaint to quiet title to the mineral interest under Section 13: SE 1/4 in Bottineau County, North Dakota. Taliaferro answered and counterclaimed to quiet title to the mineral interest under the disputed land in himself. Both parties moved for summary judgment.
[¶ 3] The parties agree the material facts are not in dispute. The Johnsons are the surface owners of the disputed land. Taliaferro has been the record owner to the oil, gas and other minerals under the disputed lands since June 26, 1950. A five-year Oil, Gas and Mineral Lease recorded on July 5, 1960, was Taliaferro's last use of the mineral interest.
[¶ 4] The lease identified Taliaferro's address as 510 Petroleum Building, Abilene, TX. Neither Taliaferro nor anyone on his behalf recorded a statement of claim for the mineral interest. On June 25, 2009, the Johnsons executed notices of lapse of mineral interest for the disputed land. The notices were published in the Bottineau Courant newspaper on July 7, 14 and 21, 2009.
[¶ 5] On July 30, 2009, the Johnsons mailed copies of the Notices of Lapse of Mineral Interest to Taliaferro at 510 Petroleum Building, 451 Pine St., Abilene, TX 79601-5150. The street address for the Petroleum Building was identified through an internet search, and the zip code was found using the United States Postal Service internet site. Taliaferro did not receive the notices. On September 11, 2009, the notices were recorded with the Bottineau County Recorder.
[¶ 6] The quiet title complaint was served on Taliaferro at his residential address in Abilene, TX. Taliaferro's residential address was obtained by Johnsons' counsel after searching the social security death index, the internet white pages website and the internet data base Zabasearch.
[¶ 7] The district court quieted title to the mineral interests in the Johnsons, finding they did not need to conduct a reasonable inquiry to find Taliaferro's current address stating, "[W]hen an address appears of record there is no requirement for reasonable inquiry when giving Notice of Lapse of Mineral Interest." Taliaferro timely appealed.
[¶ 8] This Court has explained:
Hasper v. Center Mut. Ins. Co., 2006 ND 220, ¶ 5, 723 N.W.2d 409 (internal citations omitted).
[¶ 9] The question of how to interpret and apply chapter 38-18.1, N.D.C.C., is a question of law; therefore, the standard of review is de novo. See Wheeler v. Gardner, 2006 ND 24, ¶ 10, 708 N.W.2d 908 ().
[¶ 10] Taliaferro argues section 38-18.1-06, N.D.C.C., requires a surface owner to conduct a reasonable inquiry to find a mineral owner's current address, even when an address appears of record. N.D.C.C. § 38-18.1-06 (2004). The Johnsons respond they were not required to conduct a reasonable inquiry because Taliaferro's address appeared of record.
[¶ 11] Chapter 38-18.1, N.D.C.C., provides the procedure for a surface owner to succeed to the ownership of an abandoned mineral interest under his land. N.D.C.C. § 38-18.1-02 (2004). We held in Sorenson v. Felton, 2011 ND 33, 793 N.W.2d 799 that section 38-18.1-06, N.D.C.C., requires reasonable inquiry only when the mineral owner's address does not appear of record. That holding controls our disposition of this issue, and we affirm the district court's judgment. Id.
[¶ 12] Taliaferro asserts the district court erred by not requiring the Johnsons to comply with section 38-18.1-06.1, N.D.C.C., by proving, in the quiet title action, that they conducted a reasonable inquiry for his current address before mailing the notice of lapse. N.D.C.C. § 38-18.1-06 (Supp.2009). The Johnsons respond that ownership rights to the abandoned minerals vested in them before the 2009 amendments to chapter 38-18.1, N.D.C.C., were in effect and that the Legislature could not impose new requirementsfor their quiet title action to retroactively deprive them of rights that vested in 2009.
[¶ 13] The 2009 amendments to chapter 38-18.1 became effective August 1, 2009. N.D.C.C. ch. 38-18.1 (Supp.2009). The Johnsons published their notices of claim on July 7, 14 and 21, 2009 and mailed notices of lapse to Taliaferro's address of record on July 30, 2009. Taliaferro did not file a timely notice of claim, and his mineral interest was abandoned as of the date of first publication. See N.D.C.C. § 38-18.1-02 (2004). Therefore, as of July 7, 2009, under the law then in effect, "[t]itle to the abandoned mineral interest vests in the owner or owners of the surface estate in the land in or under which the mineral interest is located on the date of abandonment." Id.
[¶ 14] The pre-2009 version of chapter 38-18.1, N.D.C.C., was silent about procedures necessary for a quiet title action. N.D.C.C. ch. 38-18.1 (2004). The Johnsons filed a complaint to quiet title to the mineral interests on January 14, 2010, after the 2009 amendments went into effect. The 2009 amendments added section 38-18.1-06.1, providing procedures for surface owners to quiet title to lapsed minerals. N.D.C.C. § 38-18.1-06.1 (Supp.2009). This new section imposes the burden of showing all the requirements of chapter 38-18.1 were complied with and showing a "reasonable inquiry" was conducted by the surface owner bringing a quiet title action. N.D.C.C. § 38-18.1-06.1(2) (Supp.2009). That subsection provides:
Id. (emphasis added).
[¶ 15] This case presents a situation apparently not contemplated by the legislature: A severed mineral interest is abandoned under the pre-2009 law and a quiet title action is brought under the law in effect on August 1, 2009. Taliaferro urges us to use the 2009 amendment's proof requirements in section 38-18.1-06.1, N.D.C.C., to require a reasonable inquiry in this case. N.D.C.C. § 38-18.1-06.1 (Supp.2009). The Johnsons respond that the quiet title action proof requirements in section 38-18.1-06.1, N.D.C.C., cannot be used to deprive them of their vested right to the mineral interests. We agree with the Johnsons' argument and rationale.
[¶ 16] The Legislature has directed that the North Dakota Century Code cannot be retroactively applied unless specifically permitted. N.D.C.C. § 1-02-10 (); see also White v. Altru Health...
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