Permann v. Knife River Coal Min. Co.

• Decision Date: 24 September 1970
• Docket Number: No. 8517,8517
• Parties: George PERMANN, Plaintiff and Respondent, v. KNIFE RIVER COAL MINING CO., Defendant and Respondent, and The State of North Dakota, by and through its Board of University and School Lands, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 146

180 N.W.2d 146

George PERMANN, Plaintiff and Respondent, v. KNIFE RIVER COAL MINING CO., Defendant and Respondent, and The State of North Dakota, by and through its Board of

University and School Lands, Defendant and Appellant.

Civ. No. 8517.

Supreme Court of North Dakota.

Sept. 24, 1970.

Syllabus by the Court

1. The burden is upon the party making the motion to quash a settled statement of the case to present a record showing affirmatively that the evidence adduced in support of a motion to extend the time for settlement of the statement of the case was insufficient as a matter of law to constitute a showing of good cause for extending the time for settling the statement of the case.

2. When the party making a motion to quash a settled statement of the case presents a record that shows affirmatively that the evidence adduced in support of a motion to extend the time for settlement of the statement of the case was insufficient as a matter of law to constitute a showing of good cause, the trial court abused its discretion in finding that good cause did exist. Here the record shows that the court abused its judicial discretion in granting the extension of time for settling the statement of the case, and accordingly the order settling the statement of the case with the demand for trial de novo incorporated therein must be set aside.

3. Where the appellant has not demanded a trial de novo or a review of specified facts under N.D.C.C. § 28--27--32 in a case tried by the court; nor served with the notice of motion for a new trial, nor served with the notice of appeal, specifications of errors of law, or specifications of the insufficiency of the evidence to support the verdict or decision of the court under N.D.C.C. § 28--18--09; the supreme court reviews only errors of law appearing on the face of the judgment roll which are assigned and argued by appellant in his brief. Under the latter mode of review in this court the statement of the case need not be settled under N.D.C.C. § 28--27--28.

4. The Constitution and statutes of this state vest in the Board of University and School Lands full control of the selection, appraisement, rental, sale, disposal and management of school lands.

5. When a decision has been reached by the Board of University and School Lands, in passing upon the validity of a contract for the sale of school land, that such land was not 'coal land' and therefore legally subject to sale, in the absence of fraud or other evidence impugning the good faith of the board, neither the contract for deed nor the patent issued to the purchaser of such land may be defeated by a subsequent discovery of a coal deposit therein.

Helgi Johanneson, Atty. Gen., John E. Adams, Asst. Atty. Gen. and Lynn E Erickson, Special Asst. Atty. Gen., Bismarck, for defendant and appellant State of North Dakota, by the through its Board of University and School Lands.

Floyd B. Sperry, Bismarck, and Harvey J. Miller, Dickinson, for plaintiff and respondent, George Permann.

Pearce, Engebretson, Anderson & Schmidt, Bismarck, for defendant and respondent, Knife River Coal Mining Co.

KNUDSON, Judge.

Permann brought this action to restrain the Knife River Coal Mining Co. (hereinafter designated Knife River) from maintaining an electric transmission line upon the Northwest Quarter of Section 12, Township 143, Range 88, in Mercer County, North Dakota, on the ground that the original easement holder, the Oliver-Mercer Electric Cooperative, had, on April 17, 1963, permanently discontinued the operation of the power line prior to the assignment by the Cooperative to Knife River on May 6, 1963, of such easement; and that the power line interfered with the operation of the personal airport on said land, contrary to law. Knife River answered, alleging that the easement was a valid and subsisting easement and specifically denying that Permann had any right to an unobstructed approach to the airport as a flight path for aircraft. Knife River also counterclaimed, alleging that Permann was the purchaser under contracts of the Northwest Quarter and the Northeast Quarter of Section 12 from the State of North Dakota, acting by and through the Board of University and School Lands of the State of North Dakota (hereinafter designated the State), wherein the State reserved fifty per cent of all minerals, including coal, in said land; and that on November 25, 1959, the State granted to Knife River a coal mining lease to the North Half of Section 12, Township 143, Range 88, Mercer County, North Dakota; and prayed that a partition of the coal between Permann and Knife River be made, and that the State be made a party to this action. The court, on April 22, 1966, ordered that the State be made a party defendant pursuant to Rule 19(a) of the North Dakota Rules of Civil Procedure.

Permann replied to the counterclaim of Knife River in substance as follows: Permann admits that he purchased, under separate contracts, from the State, the Northwest Quarter and the Northeast Quarter of Section 12, Township 143, Range 88; admits that the State attempted to reserve in said contract fifty per cent of all minerals in said land; denies that the contract reserved to the State any coal; admits that the State executed a coal mining lease to Knife River dated November 25, 1959, to all of the coal in the North Half of Section 12; alleges that said lease is void and of no effect for the reason that the State did not own any of the minerals or the coal in said premises, and that said reservation is void; and that said lease would not give the lessee the right to maintain a power line over said premises; and prays that Knife River's counterclaim be dismissed.

The State answered the complaint of Permann, and counterclaimed against Permann, praying the court to void and annul all purported easements, sales, contracts and patents purporting to affect the premises here concerned; and the State cross-claimed against the counterclaim of Knife River.

On April 20, 1966, two days before the State was made a defendant, Permann personally appeared at the office of the State Land Commissioner in Bismarck and paid the balance due on the contract for the purchase of the Northwest Quarter; and on April 26, 1966, a patent was mailed Permann. The patent was signed and in statutory form, but contained the following reservation:

* * * reserving and excepting from the operation of this grant all rights and privileges vested in the state of North Dakota under the provisions of the Constitution and laws of said state, including but not limited to 50% Of all oil, or natural gas and other minerals which may be found on or underlying such land. Both parties hereto specifically intend that the word 'minerals' as used in this reservation include such clay, coal and uranium as were included within the meaning of that term prior to July 1, 1955. (Emphasis added.)

Permann objected to the reservation of the coal in the patent, refused to accept its delivery, and deposited the patent with the clerk of the district court, claiming the reservation of the coal constituted an attempt to alter the terms of the written contract of purchase.

Permann amended his pleadings and prayed that title be quieted in him, claiming that the fifty per cent mineral reservation by the State in the contract did not include a reservation of lignite coal, and contends that coal, as such, as not a mineral and is not included in this reservation.

The case was tried by the court, sitting without a jury, on October 13, 1966. The court ordered judgment in favor of Permann, quieting title in him to the North Half of Section 12, Township 143, Range 88, except the mineral reservation of fifty per cent to the State, not including coal, and except the power line right-of-way easement assigned to Knife River; and subject to the vendor's lien in favor of the State for the balance due it under its contract with Permann for the purchase of the Northeast Quarter of Section 12.

Permann's pleadings were amended to conform with the relief granted, and to include therein the Northeast Quarter of Section 12, Township 143, Range 88. Judgment was entered accordingly.

The State appealed from the judgment, assigning twenty-nine specifications of errors of law appearing on the judgment roll, and asserted it would not furnish a settled statement of the case. The notice of appeal, specifications of error, and the State's brief were filed in the office of the Mercer County clerk of court on May 6, 1968, a few days prior to the expiration of the appeal period.

On May 10, 1968, a few days after the expiration of the appeal period, the State applied for an extension of time within which to settle the statement of the case. On October 8, 1968, the court settled the statement of the case with a demand for trial de novo incorporated therein.

We are at the outset faced with a motion by Permann to quash the settlement of the statement of the case and the demand for trial de novo on several grounds, which may be reduced to two main propositions: (1) That the State had made an absolute election to appeal on the judgment alone and not to demand a trial de novo in the Supreme Court and not to furnish a settled statement of the case; and (2) that the State, in moving for a settled statement of the case and in making a demand for trial de novo, did not do so for its own benefit but did so at the request of and for the benefit of Knife River, and had not shown for and in its own behalf the following required elements: (a) good cause; (b) diligence; (c) the inducing cause of failure to take steps within the time limited by law; and (d) that the granting of such extension would not operate to delay the hearing of appeal, without the delay being satisfactorily accounted for by appellant.

The judgment in this case was entered on November 6, 1967, and on November 8, 1967, service of the notice of entry of judgment on the defendant was made...