Webermeier v. Pace

• Decision Date: 29 April 1976
• Docket Number: No. 75--560,75--560
• Citation: 37 Colo.App. 546,552 P.2d 1021
• Parties: Kenneth E. WEBERMEIER, Plaintiff-Appellant, v. T. S. PACE, also known as Thomas S. Pace, et al., Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 1021

552 P.2d 1021

37 Colo.App. 546

Kenneth E. WEBERMEIER, Plaintiff-Appellant, v. T. S. PACE, also known as Thomas S. Pace, et al.,

Defendants-Appellees.

No. 75--560.

Colorado Court of Appeals, Div. III.

April 29, 1976.

Rehearing Denied May 27, 1976.

Certiorari Granted July 19, 1976.

Dawson, Nagel, Sherman & Howard, Theodore E. Worcester, Edward W. Nottingham, Susan D. Proctor, Denver, for plaintiff-appellant.

Southard & Ashlock, Lawrence I. Ashlock Greeley, for defendants-appellees T. S. Pace, Thomas H. Connelly and William K. Warren Foundation.

Poulson, Odell & Peterson, Peter A. Bjork, Denver, for defendants-appellees Gen Oil Inc., Energy Minerals Corp., Amoco Production Co. and Jonquil Oil Corp.

Schultz, Bate & Astrella, Richard H. Bate, Denver, for defendant-appellee Martin Oil Service.

PIERCE, Judge.

Plaintiff, Kenneth Webermeier, appeals from entry of an order by the trial court which (1) granted summary judgment in favor of non-defaulting defendants in plaintiff's action to quiet title to certain severed mineral rights and (2) dismissed those defendants' counterclaims without prejudice. We affirm.

The dispute before the trial court was whether plaintiff had an interest in all minerals in certain real property, or whether his interests were confined to ownership rights in coal. He asserted that tax deeds purporting to convey to him all mineral rights in the tracts were sufficient to warrant quieting title in him. In the alternative, he grounded his claim of ownership on C.R.S. 1963, 118--7--9, the seven-year statute of limitations based on payment of taxes under color of title as to vacant and unoccupied land. See § 38--41--109, C.R.S. 1973. Defendants denied that plaintiff had any interest in non-coal minerals and counterclaimed to quiet title in themselves, based on conveyances from the record owners of those interests. Both sides moved for summary judgment. The trial court denied plaintiff's motion and granted defendants' motion dismissing plaintiff's complaint as to minerals other than coal and quieting title to the coal in plaintiff. The trial court also permitted the voluntary dismissal without prejudice to defendants' counterclaim.

I.

Plaintiff's claimed ownership of the subject mineral rights is based primarily on three tax deeds. Two of the deeds purported to convey to plaintiff all or an undivided fractional share of all minerals within the parcels, while the third conveyed an undivided half ownership in coal underlying one of the tracts. It was undisputed that plaintiff's predecessors, whose interests had been foreclosed and sold for delinquent taxes in 1959, had ownership rights in coal only, although for reasons unexplained in the record those parties had been erroneously assessed as owners of all mineral rights beginning in 1955. Prior to this change in assessment, plaintiff's predecessors had been assessed only as to coal; the record owners of the non-coal mineral interests have never had their interests subjected to separate tax assessment, and were not notified of the erroneous assessment or of the 1959 tax sale. An abstract of title before the trial court established that defendants' claims to the non-coal interests were based on recorded conveyances from the record owners thereof, which interests originated out of an earlier reservation of those rights that severed ownership of the coal from the other mineral interests, and from title to the surface rights.

Even though the recorded chain of title shows ownership of non-coal mineral rights to be in certain defendants or others, plaintiff nonetheless argues that the tax deeds purporting to convey to him interests in all mineral rights vested him with title to all of the mineral interests in question, and thus, contends that the trial court erred in failing to quiet title to the rights in him. We disagree.

The basis for plaintiff's argument is the assertion that a tax deed founded on an erroneous assessment of severed mineral interests passes title to the entire interest assessed despite the complete absence of record title in the party against whom the taxes were assessed. The law is to the contrary. It is well settled that such tax deeds do not convey to the grantee any mineral rights other than those that were separately subjected to lawful assessment. Mitchell v. Espinosa, 125 Colo. 267, 243 P.2d 412. See also Upper Harmony Ditch Co. v. Carwin, Colo., 539 P.2d 1282; Johnson v. McLaughlin, 125 Colo. 298, 242 P.2d 812. Since the severed non-coal mineral rights were only tardily assessed, in the name of strangers to the chain of title, no valid assessment of those rights was ever made here. See Jacobs v. Perry, 135 Colo. 550, 313 P.2d 1008. For us to hold that this procedure sufficed to wrest title to non-coal minerals from the grasp of the record owners would be to directly contravene established authority that the grantee of a tax deed secures title to no more than that owned by the grantee's predecessor in title. Gilpin Investment Co. v. Perigo Mines Co., 161 Colo. 252, 421 P.2d 477. Thus, we hold that the trial court properly concluded that plaintiff had no claim to non-coal mineral interests in the subject property by virtue of the tax deeds alone.

II.

Plaintiff also argues that the trial court erred in granting summary judgment to defendants because plaintiff's title should be established by application of C.R.S. 1963, 118--7--9, which states as follows:

'Whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his or her paper title.'

See also § 38--41--109, C.R.S. 1973. He contends that he had shown compliance with all of the elements required by this statute sufficient to establish title to the mineral interests purportedly conveyed by the tax deeds.

This statute, however, must be considered in relation to C.R.S. 1963, 118--7--8. See also § 38--41--108, C.R.S. 1973. That statute provides that one who is in 'actual possession of lands or tenements' under a good faith claim of title and who pays taxes thereon for seven years is to be adjudged the owner of the land 'to the extent and according to the purport of his or her paper title.'

Upon an examination of the language of these two statutes, we find that the 'vacant lands statute,' C.R.S. 1963, 118--7--9, focuses only on surface occupancy and does not pertain to severed mineral interests, I.e., its applicability is dependent upon there being no one in possession of the Surface which would give notice of a potential adverse claim to the surface or fee estate. See Wright v. Yust, 118 Colo. 449, 195 P.2d 951; Towner v. Schaffnit, 59 Colo. 242, 149 P. 625. See also Newsom v. De Ford, 25 Colo.App. 582, 140 P. 207. It is not designed to cover situations where, as here, the surface is neither vacant nor unoccupied, and the dispute pertains merely to severed mineral rights which one party asserts are 'vacant and unoccupied' due to non-exploitation. In contrast, the 'actual possession' statute, C.R.S. 1963, 118--7--8, applies to all 'lands or tenements' possessed, and has been applied as the pertinent statute in situations where title to severed...