Newkirk v. Bigard
| Decision Date | 06 March 1984 |
| Docket Number | No. 5-83-0415,5-83-0415 |
| Citation | 125 Ill.App.3d 454,466 N.E.2d 243,80 Ill.Dec. 791 |
| Parties | , 80 Ill.Dec. 791 Walter NEWKIRK and June Fay Newkirk, Plaintiffs-Appellants, v. Joseph G. BIGARD, individually and d/b/a B & B Oil Company, B & B Oil Company, an Illinois corporation, Paul A. Lucas, Mildred A. Lucas, Brad Evilsizer, in his official capacity as Director of the Illinois Department of Mines and Minerals, Rock Island Refining Corporation, an Indiana corporation, Sam Bigard, William E. Borah, Lawrence Eaton, James G. Tomaw, Vernon R. Hildebrand, Martha L. Hildebrand, W.W. Barnhart, Vernal Roan, Laveeda Roan, William E. Roan, Evelyn Roan, Gary K. Tussey, Stanley Schrock, Olney Savings and Loan Association, an Illinois corporation, Non-Record Claimants and Unknown Owners, Defendants-Appellees. Joseph G. BIGARD, individually and d/b/a B & B Oil Company, Paul A. Lucas, Mildred A. Lucas, Sam Bigard, Esther Bigard, William F. Borah, Lawrence Eaton, James G. Tomaw, Vernon R. Hildebrand, Martha L. Hildebrand, W.W. Barnhart, Vernal Roan, Laveeda Roan, William E. Roan, Evelyn Roan, Gary K. Tussey, Stanley Schrock, and Olney Savings and Loan Association, Counter-Plaintiffs- Appellees, Cross-Appellants, v. Walter NEWKIRK and June Fay Newkirk, Counter-Defendants-Appellants, Cross- Appellees. |
| Court | United States Appellate Court of Illinois |
Richard Briles Moriarty, Newton, for Walter Newkirk and June Fay Newkirk, plaintiffs-appellants, counter-defendants-appellants and cross-appellees.
Lawrence Eaton, of Eaton, Eaton & Tomaw, Newton, for defendants-appellees, counter-plaintiffs-appellees, cross-appellants.
Neil F. Hartigan, Atty. Gen., Chicago, for defendant-appellee Evilsizer; Rosalyn B. Kaplan, Asst. Atty. Gen., Chicago, of counsel.
At issue here is an order of the Illinois Mining Board integrating oil and gas interests in certain Jasper County land and establishing a drilling unit composed of that land. The question presented is whether that order was invalid for failing to prescribe the time and manner in which owners of interests in the proposed unit could elect to participate in it. (Ill.Rev.Stat.1981, ch. 96 1/2, par. 5436(d).) We hold that it was, but only in part.
The land affected by the order of the Mining Board is a 40 acre tract which was owned prior to 1961 by Paul A. and Mildred A. Lucas (the Lucases) and Cora E. Lucas. On May 4, 1961, these owners conveyed the north 30 acres of this land to plaintiff Walter Newkirk. The grantors reserved unto themselves a one-half interest in the oil, gas and minerals associated with that property for a period of 20 years from the date of the conveyance "and as long thereafter as oil, gas or other minerals are produced from operations commenced within said 20 year period." On November 13, 1980, the Lucases executed an oil and gas lease to Joseph G. Bigard. This lease, with a primary term extending to February 28, 1981, covered all of the mineral interests of the Lucases in the 40 acre tract.
2. Provide one or more equitable alternatives if Walter Newkirk does not elect to participate in the risk and cost of the drilling and operation or operations of a well he may elect to surrender his leasehold interest to Joseph G. Bigard on some reasonable basis and for a reasonable consideration which if cannot be agreed upon shall be determined by the Mining Board.
1. 37.5% of the costs and expenses of all surface equipment and 37.5% of the costs of operating the well concerning with the production to be borne by Walter Newkirk and 62.5% of the costs and expenses of all surface equipment and 62.5% of the costs of operating the well concerned with first production to be borne by Joseph G. Bigard.
2. 56.25% of actual costs and expenses of drilling, testing and completing the well to be borne by Walter Newkirk and 43.75% of actual costs of drilling, testing and completing said well to be borne by Joseph G. Bigard."
On January 19, 1983, Walter Newkirk and his wife June Fay Newkirk commenced this action in the circuit court of Jasper County. Although, as in many actions pertaining to mineral rights, the pleadings were amended to allow the inclusion and deletion of parties, the defendants in these proceedings are those parties who claim interest in the 40 acre tract by virtue of the Lucases' lease to Bigard, in addition to Brad Evilsizer, the director of the Illinois Department of Mines and Minerals. The Newkirks' complaint was in four counts. Count I averred that the December 11, 1980, order of the Mining Board was invalid, and thus the Newkirks requested the court to declare that order void and declare the rights of the parties accordingly. Count II alleged that there had been no production of oil or gas from the north 30 acres of the tract before May 4, 1981. In this count, the Newkirks sought a declaration that the Lucases' reservation of mineral interests had expired by its own terms. In Count III, the Newkirks demanded damages from Bigard and the Lucases for removing oil and gas from the north 30 acres of the tract even though, as alleged, they were aware that the integration order of the Mining Board was invalid. Based upon the same removal of oil and gas, the Newkirks sought damages in Count IV from the Lucases for breach of warranties contained in the 1961 deed.
The Lucases, Bigard, and all defendants claiming interests through their lease (the Lucas-Bigard defendants) filed a motion to dismiss the Newkirks' complaint in its entirety. This motion asserted that the complaint constituted an impermissible collateral attack on the order of the Mining Board. Defendant Evilsizer employed similar reasoning in his separate motion to dismiss the complaint, but further contended that the order of the Mining Board was valid.
The Lucas-Bigard defendants also filed a counterclaim against the Newkirks. Count I was for slander of title and in Count II, these defendants sought to quiet title to their mineral interests in the 40 acre tract. The Newkirks moved to dismiss both counts of this counterclaim. Additionally, the Newkirks moved for summary judgment on Counts I and II of their complaint. After several attempts to schedule all of these motions for a single hearing, a nonevidentiary hearing was held on April 28, 1983. The court entered a written order on June 14, 1983.
In that order, the court granted the motion of the Lucas-Bigard defendants (also referred to as counterclaimants) to dismiss Counts I and III of the Newkirks' complaint, but denied that motion as to Counts II and IV. Since defendant Evilsizer was a party only to Count I, his motion to dismiss was also granted. The court granted the Newkirks' motion to dismiss Count I of the counterclaim, but denied that motion as to Count II. It denied the Newkirks' motion for summary judgment on Counts I and II of their complaint and ordered all parties to pay their own costs. All dismissals of counts were made without leave to amend, and the court specifically found no just reason for delaying enforcement or appeal of its order. 87 Ill.2d R. 304(a).
The Newkirks appeal from the dismissal of Counts I and III of their complaint, the dismissal of defendant Evilsizer from the proceedings, the denial of their motion for summary judgment on Counts I and II of their complaint, the denial of their motion to dismiss Count II of the counterclaim, and the court's order pertaining to costs. The counterclaimants have filed a cross-appeal in which they seek reinstatement of Count I of their counterclaim. Defendant Evilsizer and the Newkirk-Bigard defendants have filed separate briefs in this court.
As a preliminary matter, we must address a question of appealability. Defendant Evilsizer argues that we must dismiss that portion of the Newkirks' appeal relating to the court's denial of summary judgment on the first two counts of their complaint. We agree. The denial of a motion for summary judgment is not appealable (Hildner v. Fox (1974), 17 Ill.App.3d 97, 308 N.E.2d 301; LaSalle National Bank v. Little Bill "33" Flavors Stores, Inc. (1967), 80...
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