Rice v. Bixler

854 N.W.2d 565

Larry L. Rice, appellant and cross-appellee

v. Joe K. Bixler and Bonnie L. Bixler Szidon, appellees and cross-appellantsandDonald M. McDowell et al., appellees.

No. S–13–699

Supreme Court of Nebraska.

Filed October 3, 2014

Daniel H. Skavdahl, of Skavdahl, Edmund & Stecher Law Offices, for appellant.

John F. Simmons, of Simmons Olsen Law Firm, P.C, Scottsbluff., for appellees.

Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Equity: Appeal and Error.On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court.

2. Summary Judgment: Appeal and Error.In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. Statutes.Statutory interpretation presents a question of law.

4. Mines and Minerals: Title.In general, dormant mineral statutes were enacted to address title problems that developed after mineral estates were fractured.

5. Statutes: Intent: Appeal and Error.In interpreting the requirements of a statute, an appellate court looks to the intent and purpose of the statute.

6. Statutes.Statutory language is to be given its plain and ordinary meaning.

7. Statutes: Legislature: Intent: Appeal and Error.An appellate court's duty in discerning the meaning of a statute is to determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

8. Statutes: Words and Phrases.As a general rule, the word “shall” in a statute is considered mandatory and is inconsistent with the idea of discretion.

9. Statutes: Appeal and Error.An appellate court must not read anything plain, direct, and unambiguous out of a statute.

Wright, J.

NATURE OF CASE

The surface owner of various tracts of land in Sioux County, Nebraska, sued the alleged owners of the severed mineral interests in those tracts under Nebraska's “dormant mineral statutes,” Neb.Rev.Stat. §§ 57–228 to 57–231 (Reissue 2010).

All of the alleged mineral owners involved in this appeal filed verified claims to the mineral interests prior to the action commenced by the surface owner. Both sides moved for summary judgment. The district court determined that the alleged mineral owners had either strictly complied or substantially complied with the requirements of § 57–229 to exercise publicly the right of ownership of the severed mineral interests. It concluded the alleged mineral owners had not forfeited their mineral interests, except for one of the claims. It found that such claim failed to reference the source of the deed or other instrument under which the mineral interests were claimed. The surface owner appeals, and two of the alleged mineral owners cross-appeal as to the mineral interests that were terminated.

SCOPE OF REVIEW

On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court. Gibbs Cattle Co. v. Bixler, 285 Neb. 952, 831 N.W.2d 696 (2013).

In reviewing a summary judgment, an appellant court views the evidence in the light most favorable to the party

against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 (2012).

Statutory interpretation presents a question of law. Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).

FACTS

Larry L. Rice is the surface owner of the land in question. He claims that the alleged owners of the severed mineral interests named herein have abandoned their interests, because they did not comply with the requirements of § 57–229. Prior to the time this action was commenced, Joe K. Bixler; Bonnie L. Bixler Szidon; Charles Albert Cunningham, Jr.; Richard Bixler Cunningham; John H. McDowell; and Donald M. McDowell (defendants) filed verified claims to the severed mineral interests of the real estate owned by Rice.

Some, but not all, of the mineral interests in question were owned by Delia Bixler during her lifetime. She died intestate, and her heirs at law were John Bixler and Charles Bixler, her sons; LaVerna Reardon and Joan Cunningham, her daughters; and John McDowell and Donald McDowell, her grandsons. A final decree entered in the county court for Sioux County transferred all of her mineral interests to her heirs.

Joe Bixler and Bonnie Bixler Szidon received their mineral interests from Charles Bixler and his wife by two recorded deeds. Joe Bixler and Bonnie Bixler Szidon filed two verified claims on January 26, 2011, one for a small interest and one for a large interest. The smaller of the two claims was filed in the office of the Sioux County clerk/register of deeds in “Book A–61 of Miscell[aneous,] Page 635.” The larger claim was filed in “Book A–61 of Miscell[aneous,] Page 634.” Both verified claims describe the land and the nature of the interest claimed, provide the claimants' names and addresses, and state that they claimed the interest and do not intend to abandon it.

The smaller interest of Joe Bixler and Bonnie Bixler Szidon's claim includes a statement that the “interest is based on a Mineral Deed issued 13 August 1981 (BOOK A–15 Page

66).” The larger interest does not include this language and does not cite to any document that identifies the deed or other instrument under which the interest was claimed.

Charles Cunningham and Richard Cunningham are the heirs of the estate of Joan Cunningham, whose will was admitted to probate July 29, 1993, in Mobile County, Alabama.

Richard Cunningham filed a verified claim in the office of the Sioux County clerk/register of deeds on January 31, 2011, in “Book A–61 of Miscell[aneous,] Page 648.” The claim states that it is intended to be a “verified claim of severed interests ... of an undivided 10% (ten) percent interest in all oil, gas and other minerals that may be produced from” the described land. It states the name and address of the person claiming the interest and states that the claimant “makes continued claim to this interest and has no intention of abandoning the interests.”

Charles Cunningham filed two verified claims. The first claim was filed January 24, 2011, in “Book A–61 of Miscell[aneous,] Page 633.” The second claim was filed February 7, 2011, in “Book A–61 of Miscell[aneous,] Page 657.” Both claims included statements similar in substance to those contained in the claim filed by Richard Cunningham.

The Cunninghams' verified claims provide no reference to a deed or other conveyance recorded in Sioux County under which their interest was claimed. Instead, they include documents that trace their interest from their mother, Joan Cunningham, through her will probated in Mobile County, Alabama. These statements were offered and received at the hearing on the motions for summary judgment.

As stated above, John McDowell and Donald McDowell received their mineral interest from the estate of Delia Bixler. John McDowell and Donald McDowell filed verified claims in the office of the Sioux County clerk/register of deeds on January 21 and February 14, 2011. The claims of the McDowells were filed in “Book A–61 of Miscell[aneous,] Page 632,” and in “Book A–62 of Miscell [aneous,] Page 1.” They both identify the document as a “verified claim of several [sic] interests ... of an undivided 1/10 [interest in] mineral rights to all oil, gas and other minerals that may be produced

from” the described land. They state the name and address of the person claiming the interest and state that the claimant “intends to claim this interest and has no intention of abandoning the claim.”

The claims of the McDowells state that the interest was conveyed from the estate of Delia Bixler and is based on a “Joint Tenancy Mineral Deed” that was issued on December 17, 1958. The record does not contain a “Joint Tenancy Mineral Deed” of record in Sioux County.

All parties moved for summary judgment. At the hearing on the motions, Rice offered no evidence. The defendants offered the verified claims described above. They also offered the mineral deeds from Charles Bixler and his wife to Joe Bixler and Bonnie Bixler Szidon recorded in “Book A–14 of Deeds[,] Page 537–538,” and “Book A–15 of Deeds[,] Page 66,” in Sioux County, and the “Last Will and Testament” and “Letters Testamentary” of the estate of Joan Cunningham.

The district court determined that all the defendants had filed verified claims but that some of the claims filed did not strictly comply with the statutes. The court concluded that the doctrine of substantial compliance could be applied to those claims that did not strictly comply with the requirements of § 57–229(3). Relying on Gibbs Cattle Co. v. Bixler, 285 Neb. 952, 831 N.W.2d 696 (2013), the court determined that all provisions of the dormant mineral statutes should be construed in favor of the mineral owner. It also concluded that our decision in Gibbs Cattle Co. mandated that substantial compliance with the statutes was sufficient.

The district court then analyzed the verified claims filed by the parties. The court determined that the claims of Charles Cunningham and Richard Cunningham, the claims of John McDowell and Donald McDowell, and the smaller claim of Joe Bixler and Bonnie Bixler Szidon all substantially complied with the statutes, and it dismissed the action against those parties. However, the court determined that Joe Bixler and Bonnie Bixler Szidon's larger claim, filed in “Book A–61 of Miscell[aneous,] Page 634,” failed to protect their mineral interest because it did not reference the...