Larson v. Norheim

• Citation: 2013 ND 60,830 N.W.2d 85
• Decision Date: 08 April 2013
• Docket Number: No. 20120236.,20120236.
• Parties: Loren R. LARSON, Kathryn L. Lervick, and Renee L. Larson, Plaintiffs and Appellants v. Thelma Larson NORHEIM, Hans Norheim, Birgit Norheim Oyen, Kjellaug Norheim, Harald Tettum, Inge Oyen Norheim, Olav Oyen, and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the Complaint, whether as heirs, devisees, legatees, or personal representatives of any of the above named persons who may be deceased, or under any other title or interest, Defendants and Appellees.
• Court: United States State Supreme Court of North Dakota

830 N.W.2d 85

2013 ND 60

Loren R. LARSON, Kathryn L. Lervick, and Renee L. Larson, Plaintiffs and Appellants

v.Thelma Larson NORHEIM, Hans Norheim, Birgit Norheim Oyen, Kjellaug Norheim, Harald Tettum, Inge Oyen Norheim, Olav Oyen, and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the Complaint, whether as heirs, devisees, legatees, or personal representatives of any of the above named persons who may be deceased, or under any other title or interest, Defendants and Appellees.

No. 20120236.

Supreme Court of North Dakota.

April 8, 2013.

Elizabeth L. Pendlay, Crosby, N.D., for plaintiffs and appellants.

H. Malcolm Pippin (argued), Williston, N.D., and Charlotte J. Skar (on brief), Fargo, N.D., for defendants and appellees.

MARING, Justice.

[¶ 1] Loren Larson, Kathryn Lervick, and Renee Larson (“Larsons”) appeal from a judgment dismissing their action to quiet title to certain mineral interests and finding the heirs of Hans Norheim and Thelma Larson Norheim (“Norheim heirs”) are the current owners of the mineral interests. We conclude the district court did not clearly err in finding the Norheim heirs' statement of claim was sufficient to prevent the lapse of the mineral interests. We affirm.

I

[¶ 2] The Larsons are the surface owners of real property in Divide County. In 1985, Thelma Larson Norheim recorded her interest in 53.333 net mineral acres under the Larsons' property. She died in 1992, and her estate passed to her husband Hans Norheim, as her sole heir. Hans Norheim died in 1998. There was no evidence in the record about probate proceedings for either Thelma or Hans Norheim until an order of intestacy and determination of heirs was entered for Hans Norheim in October 2011.

[¶ 3] In June 2006, the Larsons signed a Notice of Lapse of Mineral Interest, asserting Hans and Thelma Norheims' mineral interests had been unused for more than twenty years. According to the Larsons' attorney, he searched for probate proceedings for Hans Norheim and Thelma Larson Norheim in various counties in North Dakota and Arizona, but was unable to find any filings. According to the attorney, he also conducted an Internet search for information about the Norheims or any possible heirs, but was unable to find any information. The Larsons published the notice of lapse in the Divide County newspaper on May 9, 2007, May 16, 2007, and May 23, 2007. On May 25, 2007, the notice of lapse was also mailed to the Norheims' address of record.

[¶ 4] On June 27, 2007, a statement of claim for the mineral interests was recorded in the Divide County recorder's office, which provided:

Under the provisions of Chapter 38–18.1 of the North Dakota Century Code, NOTICE IS HEREBY GIVEN, that the undersigned does have, own and claim to be the owner of an undivided interest in and to the oil, gas, coal, clay, gravel, uranium and all other minerals of any kind and nature, unless otherwise noted, underlying the real estate described below in Divide County, North Dakota. By the rightful heirs of Hans and Thelma Norheim.

The statement of claim was signed by Olav Oyen and Inge Oyen and listed the names and addresses of Birgit Norheim Oyen, Kjellaug Norheim, Harald Tettum, Inge Oyen, and Olav Oyen as owners of the mineral interests.

[¶ 5] The Larsons caused an affidavit of lapse of mineral interest dated July 31, 2007, to be recorded in the recorder's office. The Larsons brought an action against the Norheim heirs to quiet title in the mineral interests. After a trial, the district court found the Larsons failed to comply with statutory notice requirements for abandonment proceedings because they were required to make a reasonable inquiry to provide notice of lapse to the current owner of the mineral interests, the Norheim heirs are the current owners of the mineral interests, and the Larsons failed to conduct a reasonable inquiry to locate the Norheim heirs. The court also found the Norheim heirs substantially complied with statutory requirements to preserve their mineral interests and the mineral interests were not abandoned. The court dismissed the Larsons' claim, and a judgment was entered quieting title in the mineral interests in the Norheim heirs.

II

[¶ 6] The Larsons argue the district court erred in finding they were required to conduct a reasonable inquiry to determine the mineral owner's address under N.D.C.C. § 38–18.1–06. They claim the statute requires either notice mailed to the recorded owner's address of record or a reasonable inquiry, and they sent notice to the recorded owner's address of record. They contend that even if a reasonable inquiry was required, they conducted a reasonable inquiry and met the statutory requirements. The Larsons also argue the district court erred as a matter of law in finding the Norheim heirs' statement of claim was sufficient to preserve their interest in the minerals. They contend the statement of claim was not executed by Hans Norheim's heirs and the court erred in failing to consider their argument that the mineral abandonment proceedings created a reversionary interest in the minerals, which required application of the statute of frauds. Although the Larsons raise multiple issues, the issues relating to the Norheim heirs' statement of claim are dispositive and we need not address the Larsons' other arguments.

[¶ 7] The district court found the statement of claim was sufficient to preserve the Norheim heirs' mineral interests and the interests were not abandoned:

I find that even though the [Norheim heirs'] document did not have the exact language and signatures that we would have liked to have seen, the [Norheim heirs] did preserve their interest by the timely filing of their notice.

I find the [Norheim heirs'] brief persuasive on this issue and will not simply reprint it here. I will note that I agree with the [Norheim heirs'] counsel that the party wanting to TAKE property must comply specifically, but the party wanting to KEEP property need only substantially comply, and the response of the [Norheim heirs] was enough in this case to preserve their property.

....

And the Owners DID care about the minerals. We know this because they filed their notice and resisted this lawsuit. So the minerals were not abandoned, and the [Larsons] did not become the new Owners.

[¶ 8] In their post-trial brief, the Norheim heirs argued they complied with the requirements for a statement of claim in N.D.C.C. ch. 38–18.1 and their mineral interests were preserved and not abandoned. The Norheim heirs asserted a mineral interest owner acting to preserve its interest prevents extinguishment of the interest by substantially complying with the statutory requirements of N.D.C.C. ch. 38–18.1 and need not strictly comply with those requirements. They claimed they substantially complied with the requirements for filing a statement of claim because the statement was recorded within sixty days of the Larsons' first publication of the notice of lapse, it was recorded by the owners and their representatives in the correct county and provided a legal description of the land and the minerals involved, and it identified the Hans and Thelma Norheim estates and the family bloodlines who would inherit the minerals from the Hans Norheim estate. The Norheim heirs also claimed Olav Oyen and Inge Oyen were acting as representatives or agents when they executed the statement of claim.

[¶ 9] The interpretation and application of a statute is a question of law, which is fully reviewable on appeal. Johnson v. Taliaferro, 2011 ND 34, ¶ 9, 793 N.W.2d 804. We have said:

This Court's primary objective in interpreting a statute is to ascertain legislative intent. [Baukol Builders, Inc. v. County of Grand Forks, 2008 ND 116, ¶ 22, 751 N.W.2d 191]. Words of a statute are given their plain, ordinary, and commonly understood meaning unless a contrary intention plainly appears. N.D.C.C. § 1–02–02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1–02–07. If the language of a statute is clear and unambiguous, “the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1–02–05. If the language of a statute is ambiguous, however, a court may resort to extrinsic aids to interpret the statute. N.D.C.C. § 1–02–39. Statutes must be construed to avoid absurd and ludicrous results. Stutsman County v. State Historical Soc'y, 371 N.W.2d 321, 325 (N.D.1985). SeeN.D.C.C. § 1–02–38(3) and (4). We construe statutes in a practical manner, and we consider the context of statutes and the purpose for which they were enacted. McDowell v. Gillie, 2001 ND 91, ¶ 11, 626 N.W.2d 666.

Bragg v. Burlington Res. Oil and Gas Co. LP, 2009 ND 33, ¶ 8, 763 N.W.2d 481 (quotations omitted).

[¶ 10] Chapter 38–18.1, N.D.C.C., provides the procedure for the termination of abandoned mineral interests. Because the abandonment proceedings in this case began before the 2007 statutory amendments to N.D.C.C. ch. 38–18.1 became effective on August 1, 2007, and the amendments were not made retroactive, the 2004 version of N.D.C.C. ch. 38–18.1 applies to this case. See Sorenson v. Felton, 2011 ND 33, ¶ 9, 793 N.W.2d 799. “Any mineral interest is, if unused for a period of twenty years immediately preceding the first publication of the notice [of lapse], deemed to be abandoned, unless a statement of claim is recorded in accordance with section 38–18.1–04.” N.D.C.C. § 38–18.1–02 (2004). Title to an abandoned mineral interest vests in the surface owner on the date of abandonment. Id.Section 38–18.1–04, N.D.C.C., provides the requirements for a statement of claim and says it must:

1. Be recorded by the owner of the mineral interest or the owner's representative prior to the end of the twenty-year period set forth in section 38–18.1–02, or within two years after July 1, 1983, whichever is later. A joint tenant, but not a...