Schumacher v. Cole

• Decision Date: 02 April 1957
• Docket Number: No. 9308,9308
• Citation: 131 Mont. 166,309 P.2d 311
• Parties: Christ SCHUMACHER, a/k/a Chris Schumacher, Plaintiff and Respondent, v. Albert I. COLE and Eva Cole, his wife, Defendants and Appellants.
• Court: Montana Supreme Court

Page 311

309 P.2d 311

131 Mont. 166

Christ SCHUMACHER, a/k/a Chris Schumacher, Plaintiff and Respondent, v. Albert I. COLE and Eva Cole, his wife, Defendants and Appellants.

No. 9308.

Supreme Court of Montana.

Submitted Feb. 25, 1957.

Decided April 2, 1957.

D. C. Warren, Glendive, Charles G. Bangert, Enderlin, N. D., Charles G. Bangert argued orally, for appellants.

Hoover & Hoover, Circle, Leif Erickson, Helena, Leif Erickson argued orally, for respondent.

CASTLES, Justice.

Respondent brought suit to quiet title to the lands here involved, basing his claim of ownership upon tax deeds to McCone County and subsequent quitclaim deeds from McCone County and adverse possession.

Appellants by answer and counterclaim denied respondent's title and set up title in Eva Cole Velleu in certain parts of the land involved referred to as the Cole land. Appellants, Harris and Nollman, claimed an interest in certain parts of the land involved under oil and gas leases entered into in 1922. Appellant Nollman, a resident of Florida, was defaulted. His motion to set aside the default was denied.

McCone County took tax deeds to the Cole land on October 4, 1941, and by quitclaim deed, deeded the land to respondent on November 4, 1941. As to the land which the appellant Harris claimed to have leased, other than the Cole land, McCone County took the tax deed on October 9, 1930, and the property was transferred to respondent by quitclaim deed January 6, 1942.

The oil and gas lease, under which appellant Harris claimed an interest in the Cole land, was made on February 23, 1922, for a primary term of five years for a consideration of $1.00. The lease on the other land involved was made on February 14, 1922, also for a primary term of five years for a consideration of $1.00.

Respondent's reply alleged that appellant Harris had neither drilled any wells, produced any oil or gas, nor paid any delay rentals, and had permitted the leases to expire, and that the leases were forfeited, null, void and of no effect.

Appellants claimed that the taxes, tax proceedings, tax deeds, and quitclaim deeds were null and void and asked for redemption of part of the land. Appellant Harris further claimed that if the court should find for respondent, nevertheless such decision would not affect his vested rights in the minerals.

Respondent pleaded that appellants were barred by their laches and the trial court so found.

The case was tried before a jury. The following interrogatories were answered by the jury and adopted by the court as part of its findings.

'1. Do you find from the evidence that Plaintiff Christ Schumacher, either personally or through agents, employees, or representatives, entered into the possession and control of the lands involved prior to January 9, 1942? Yes.

'2. If your answer to the foregoing question was yes, do you further find that such use has been continuous each year thereafter, either for the ordinary use of the occupant, or for the improvement of said lands, or for pasturage during the regular grazing season? Yes.

'3. If your answers to questions one and two were yes, was such possession and use by Christ Schumacher either personally or through his agents, employees, or representatives, actual, visible, open, and adverse throughout that period? Yes.

'4. Did Christ Schumacher, either personally or through his agents, employees, or representatives, assert and have the exclusive use and possession of said lands throughout that period? Yes.

'5. Did the plaintiff, Christ Schumacher, either personally or through his agents, employees, or representatives, make improvements on these lands? Yes.

'6. If your answer to question 5 is yes, did such improvements increase the value and usability of such lands? Yes.

'7. Do you find under the circumstances shown by the evidence that defendant Eva Cole Velleu, delayed for an unreasonable length of time in asserting her present claim to these lands? Yes.

'8. Upon what date did the plaintiff go into actual open, adverse and notorious possession of said land? Nov. 4, 1941.

'9. If you find that the plaintiff went into actual adverse, open and notorious possession of said real estate, how long did he remain in such possession? Sept. 16, 1952.

'10. On what date do you find that the plaintiff removed from his farm to Wolf Point, Montana? 1948.'

Appellants have set up twenty-three specifications of error. They may be grouped as follows: (1) There is a veriance between the pleadings and judgment; (2) that the record does not support a finding that respondent's possession satisfied the requirements of the statutes on adverse possession; (3) that the oil and gas leases are still in effect; and (4) that there was no laches on the part of any of the appellants. Other problems presented are not meritorious.

This suit was started as a statutory action to quiet title, and default was entered against several defendants. Then, upon appellant Harris's answer and cross-complaint wherein he alleges an interest under the aforementioned oil and gas leases, the respondent, by his reply, asks for affirmative relief to cancel the oil and gas leases. Appellant asserts that this is a departure and a veriance. The argument contained in the brief of counsel has been disposed of by the decision of this court in Sanborn v. Lewis and Clark County, 113 Mont. 1, 120 P.2d 567, 570.

In discussing the general statute on quieting title, then section 9479, R.C.M. 1935, now R.C.M.1947, Sec. 93-6203, the court said:

'Section 9479 permits inquiry into the whole title of the property in question. All persons claiming adversely to the plaintiff may be cited in and adverse claim of title of all kinds may be inquired into, the purpose being to enable the plaintiff to quiet his title as against unfounded claims of all nature. The remedy provided is a more easy and expeditious mode of clearing title than under the old chancery system, enlarging the power of the court to determine all manner and any number of adverse claims to land and quiet title thereto. 5 R.C.L. 643. Under our section 9479 the court is given unusually broad power in such a proceeding, including the power to remove clouds from the title and to cancel instruments of title as incidental and as may be necessary to the main purpose of quieting the title.'

The oil and gas leases, exhibits 13 and 14 constitute clouds on the title of the respondent. Under the Sanborn case, incidental to the main relief of quieting the title, the court could declare a cancellation of those oil and gas leases.

Adverse Possession. Respondent asserts adverse possession for the statutory ten-year period under color of title under R.C.M.1947, Sec. 93-2509, and also adverse possession for the ten-year period under R.C.M.1947, Sec. 93-2511.

Appellants assert that respondent did not prove by a preponderance of evidence that his possession was exclusive, or continuous, or that the land was enclosed by a substantial enclosure.

The jury's findings, which were adopted by the court as to these matters are amply supported by the record. The respondent leased the Cole land from the county in 1929 and enclosed it by a fence. He purchased this land from the county in 1941. He purchased the other land here involved from the county in 1942, but likewise had had it fenced together with the Cole land since 1929, and continued to keep up the fences adjoining with neighbors' fences since that time. He ran livestock on the land during the regular grazing season continuously from at least 1940 on; paid taxes on the land since he purchased it, and constructed a dam on the property in 1946.

The jury and the trial court were justified in finding adverse possession. Respondent was clearly holding the land under color of title derived from the county's tax deeds and the quitclaim deeds to him. Sullivan v. Neel, 105 Mont. 253, 73 P.2d 206; Hentzy v. Mandan Loan & Investment Co., Mont., 286 P.2d 325; Long v. Pawlowski, Mont., 307 P.2d 1079.

The problem concerning the validity of the oil and gas leases will next be considered. As previously related, respondent is the owner of the fee title to the surface of the land. Appellant Harris asserts that nevertheless his oil and gas leases are valid. The leases were both obtained in 1922 for a term of five years. One of the leases applied to eighty acres of the Cole land. The other applied to 160 acres known as the Montgomery land. No drilling, no payments of rental or anything else was ever done by appellant Harris. It was also shown that no notice or demand to pay rent or drill was ever made. The trial court found that the leases became null and void at the expiration of the five-year term.

The two leases read in part as follows:

'To Have and to Hold, the same for the term of 5 years from this date, and as much longer as Oil or Gas or either of them shall be produced from said land by the lessee or as much longer as rent shall be paid for this lease as hereinafter mentioned.'

Then, after provisions for certain other rights as to use of the lands and royalties, this paragraph appears with reference to rental 'hereinafter mentioned' in the habendum clause above quoted:

'If no well shall be commenced on the land above described, or in the vicinity thereof within five years from the date hereof, this lease shall become null and void unless the lessee shall pay to the lessor for further delay, a rental of ten cents per acre in advance for each additional year until a well is commenced on said land or in said vicinity at which time said payment shall cease. All royalties, delay rentals and other payments which may fall due under this lease shall be...