Owens v. Tergeson
2015 WL 6746535
Colo. Ct. App.2015Background
- Plaintiffs (Owens and Gadbois heirs) and Furrow Defendants dispute ownership of mineral rights under four adjacent Weld County tracts (Tracts A–D) traced to two 1950 warranty deeds.
- The 1950 deeds’ granting clauses conveyed the surface; their habendum clauses contained a reservation of “all oil, gas and other minerals” (and surface use to develop them).
- Furrow Defendants are successors to the 1950 grantee (Hubert A. Brown) and argue the deeds conveyed mineral rights to Brown; Plaintiffs claim the habendum reservations retained minerals for the grantors and their successors.
- Furrow Defendants also rely on a 1978 quiet-title judgment quieting title in Brown; Plaintiffs contend that the 1978 action was void because Brown obtained service on the Gadbois only by publication despite readily ascertainable out-of-state addresses.
- The district court granted summary judgment to Plaintiffs: (1) the 1950 deeds unambiguously reserved mineral rights to the grantors; (2) the 1978 quiet-title judgment as to Tract A was void for inadequate service. Furrow Defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 1950 deeds reserved minerals to grantors | Reservation in habendum retained minerals for grantors/successors | Granting clause governs; no reservation conveyed minerals to grantors | Deed read as whole: habendum reservation is effective; minerals reserved to grantors/successors (affirmed) |
| Whether habendum or granting clause controls when conflict exists | Apply modern rule: interpret deed as whole to effectuate intent | Old common-law rule: granting clause controls over habendum | Modern rule applies (Mitchell); habendum may qualify granting clause; reservation effective |
| Validity of 1978 quiet-title judgment for Tract A given service by publication | Judgment void: Brown failed to exercise due diligence and omitted known addresses | Publication was permitted under the rule because no Colorado address for personal service was shown | Judgment void as constitutional due process requires due diligence to locate known/ascertainable parties; Brown failed to search public records showing Tulsa addresses |
| Whether summary judgment was proper | Facts and law admit no genuine issue; Plaintiffs entitled to judgment | Alternative: genuine factual disputes or Furrow entitled to judgment | Summary judgment for Plaintiffs affirmed; no triable issue on deeds or service deficiency |
Key Cases Cited
- Mitchell v. Espinosa, 243 P.2d 412 (Colo. 1952) (treat deed as whole; habendum reservation can control to effectuate parties’ intent)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (publication notice insufficient where parties are known or easily ascertainable; due diligence required)
- Clevenger v. Continental Oil Co., 369 P.2d 550 (Colo. 1962) (ambiguities in mineral reservations construed for grantee)
- O'Brien v. Village Land Co., 794 P.2d 246 (Colo. 1990) (distinguishes role of granting clause and warranty clause; warranty exceptions normally protect grantor on warranty)
- Million v. Botefur, 9 P.2d 284 (Colo. 1932) (older common-law rule giving decisive weight to granting clause over habendum)