Pfeifer v. Ableidinger

• Decision Date: 18 April 1958
• Docket Number: No. 34345,34345
• Citation: 166 Neb. 464,89 N.W.2d 568
• Parties: Joe PFEIFER, being the same person as Joe P. Pfeifer and Martha Pfeifer, Appellees, v. Lena ABLEIDINGER & Walter D. Ableidinger, Appellees, State of Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 568

89 N.W.2d 568

166 Neb. 464

Joe PFEIFER, being the same person as Joe P. Pfeifer and Martha Pfeifer, Appellees, v. Lena ABLEIDINGER & Walter D. Ableidinger, Appellees State of Nebraska, Appellant.

No. 34345.

Supreme Court of Nebraska.

April 18, 1958.

Syllabus by the Court

1. A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.

2. A general demurrer tests the substantive legal rights of parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded.

3. If the petition states facts which entitle the plaintiff to relief, whether legal or equitable, it is not demurrable upon the ground that it does not state facts sufficient to constitute a cause of action.

4. Every contract is made with reference to, and subject to, existing law, and every law affecting the contract is read into it and becomes a part thereof. This is true between individuals dealing between themselves by contract, express or implied, and likewise true between individuals and the government.

5. The rights of a lessee of school land are determined by the law as it was at the time the lease was made and the lessee may not be deprived of any substantial right resulting from the lease in his favor by subsequent legislation.

6. The state by entering into a contract adandons its attributes of sovereignty and binds itself, to the extent of its power to contract, substantially as an individual does who becomes a party to a contract.

7. The right of an owner to dispose of property is substantial and valuable. It is incident to and inheres in the constitutional right to acquire and own title to every species of property recognized by law. It may not be impaired or defeated by legislation after the right is vested.

Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for appellant.

R. J. Shurtleff, Norfolk, for appellees Pfeifer.

Hutton & Hutton, Norfolk, for appellees Ableidinger.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action in equity brought in the district court for Boyd County by Joe Pfeifer, being the same person as Joe P. Pfeifer, and Martha Pfeifer, as plaintiffs, against Lena Ableidinger, Walter D. Ableidinger, and State of Nebraska, as defendants. The purpose of the action was to quiet title in the plaintiffs to the southeast quarter of Section 36, Township 34 North, Range 12 West of the 6th P.M., in Boyd County, Nebraska, because of a mineral reservation in the State of Nebraska contained in the deed to such quarter section of land which the plaintiffs claim is contrary to the Constitution and laws of the state; and further, to enjoin the State of Nebraska from asserting or claiming any legal right, title, or interest to any mineral, coal, oil, gas, potash, sand, gravel, clay, volcanic ash, tripoli, and saline rights contained on such land. The State demurred to the plaintiffs' petition on the ground that it did not state facts sufficient to constitute a cause of action against the State. The demurrer was overruled. The State refused to plead further and elected to stand upon its demurrer. The trial court entered its decree finding generally for the plaintiffs on their petition and against the defendants. The court ordered and decreed that the title to such real estate be quieted in the plaintiffs and against the reservation of the State of mineral rights and other natural resources, and against all claims of the State or any person or persons claiming by, through, or under the State; and that the State and its officers, various boards, departments, agents, and employees, and all persons, firms, or corporations claiming to act by or through the State be enjoined from claiming any right, title, or interest in said land. The State appealed.

The State sets forth the following assignments of error: (1) The trial court erred in finding that the petition stated a cause of action and in overruling the demurrer of the State; and (2) the trial court erred in quieting title to the mineral rights on said land in the plaintiffs, and in enjoining the State, or any person in its right, from going upon, trespassing upon, prospecting for or attempting to develop any of the mineral or natural resources in or upon said real estate, or asserting or claiming any right, title, or interest therein against the title, interest, and possession of the plaintiffs, or either of them, or their heirs, grantees, or successors in interest.

Due to the length of and involved facts alleged in the petition, we summarize the same.

The petition alleged that on or about December 21, 1894, Collins Veach made application to the proper boards and officers of the State to lease the southeast quarter of Section 36, Township 34, North of Range 12, in Boyd County, in the manner and form then provided by law for leasing common school lands; that for the purpose of and in order to induce and interest people in the leasing of school lands the Legislature of the state by laws duly passed and in force in 1894 and 1895 provided that persons leasing school lands would be and were granted the right to thereafter purchase the real estate leased by them during the terms of the lease upon application made by the holder of the lease to the proper authorities for a contract of purchase and sale of the leased lands in the manner provided by law at the time the lease was executed; and that the application of Collins Veach was duly approved and on February 10, 1895, a lease to the above-described real estate for 25 years was issued and properly recorded.

The petition further alleged that on August 31, 1903, Collins Veach sold, assigned, and transferred the above-described lease and all of his right, title, and interest therein to one Alden A. Barden, which assignment was in proper form and duly recorded; that on March 4, 1909, Alden A. Barden sold, assigned, transferred, and conveyed to Charles L. Teaquist all his right, title, and interest to the leased real estate, which assignment was properly recorded; that on March 1, 1918, Charles L. Teaquist sold and assigned all his right, title, and interest to the leased real estate to Joe Bowers, which assignment was duly approved and recorded; and that on August 20, 1918, Joe Bowers sold, assigned, and conveyed all of his right, title, and interest in the leased real estate to F. W. Woods, which assignment was duly approved and recorded.

The petition further alleged that Collins Veach, by virtue of the contract entered into with the State on February 10, 1895, to lease the school land above described, then and thereby acquired and had the right during the term of said lease to purchase the real estate in accordance with the laws in force upon the date of the execution of the lease and contract; that by the leasing of the above-described real estate, the State thereby contracted and agreed with Collins Veach that it would sell and by its deed convey title in fee simple to him during the term of the lease of the real estate described upon the surrender of the lease, the rights of the purchaser and seller to be governed by the laws of the State in force upon the date of the execution of the lease; that shortly prior to July 1, 1919, F. W. Woods surrendered this lease and made application to purchase the land conveyed thereby in accordance with the statutes pertaining to such purchase; that a certificate of sale issued to F. W. Woods on July 17, 1919, contained the following provisions, among others: 'In case the said F. W. Woods his assigns or legal representatives, shall pay the several sums of money aforesaid, punctually at the times above limited, and in all other respects observe and comply with the laws governing the leasing, selling, and general management of the Educational Lands, the State of Nebraska, will, on the surrender of this certificate, cause to be made and executed unto the said F. W. Woods his assigns or legal representatives, a Deed conveying said land in fee simple'; that there were four certificates of sale, each covering one quarter of the southeast quarter section above described, and each certificate of sale showed the following words: 'All mineral, coal, oil, gas, potash, sand, gravel, clay, volcanic ash, tripoli, and saline rights, are reserved to the state, with right to prospect for and develop the same'; that on January 13, 1920, the four certificates of sale were assigned to George E. Knoll and Martin S. McDuffee; that on April 27, 1922, a deed was issued by the State to George E. Knoll and Martin S. McDuffee, which deed contained a reservation of the mineral rights in the same language contained in the sale certificates; and that thereafter this quarter section of land was subject to seven conveyances prior to the one to the plaintiffs in this action, each by warranty deed without mention of the mineral reservation in the State.

The petition further alleged that on April 27, 1922, the deed of the State issued in compliance with the certificate of sale, contained the following provision, among others: 'To have and to hold the same premises and parcel of land above particularly described, with the appurtenances thereon, unto the said George E. Knoll & Martin S. McDuffee, their heirs and assigns, in fee simple forever.'

The petition also alleged that the plaintiffs took possession of the real estate here involved on March 1, 1950, and are now in possession of the same; that they did not have actual knowledge of the mineral reservations contained in the deed from the State and would not have purchased the land had they known of that fact; that they demanded that the sellers, Lena Ableidinger and Walter D. Ableidinger, furnish them with a merchantable title or take...