Hayes v. HowellHayes v. Howell
- Reporters:
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- Before:
- Hill
The Howells bring this action against Hayes for declaratory judgment under
On January 2,1957, James A. Hayes, Jr., deeded three tracts of land to W. Harvey Howell “reserving and excepting unto the said James A. Hayes the undivided one-half of all minerals and oil rights in and to the three tracts of land hereinabove described and conveyed.”
On December 21, 1966, W. Harvey Howell deeded to two other Howells the three tracts of land (minus eleven acres reserved for himself) with the following provision: “There is reserved and excepted from this conveyance the undivided one-half of all minerals and oil rights in and to the three tracts of land hereinabove described and conveyed, which were excepted by James A. Hayes in his deed to W. Harvey Howell....” The Howells will be referred to herein as the landowners and Hayes will be referred to as the mineral owner.
The parties agree that the mineral rights have never been taxed apart from the land, and that the mineral owner has never paid taxes on his mineral rights. For the past twenty-five years, the landowners have paid all taxes, and the mineral owner has made no attempt to
The landowners rely upon
The mineral owner alleges that
1. The mineral owner argues that venue was improper in Bartow County, the county in which the land lies (1983
The landowners’ suit is clearly not in equity as they seek to establish legal title by adverse possession as a matter of law in reliance on the statute. In this substantive decision, no equity is involved. No deed to the mineral owner is to be cancelled. The landowners seek to recover an interest in land by asserting a presently enforceable legal title against the defendant’s mineral interest claim. Therefore, under the
White v. Gordon,
supra, rule, as a case at law, venue is constitutionally in the county in which the land lies as provided in
This result is not changed by the fact that this suit was brought as a declaratory judgment action. In Shaw v. Crawford, 207 Ga. 67 (60 SE2d 143) (1950), a declaratory judgment action involving competing chains of title for the same property, we held that where the primary and fundamental issue is legal in character, i.e., that of title to land, the venue of the case is still in the county where the land lies even though the suit is for declaratory judgment and an incidental injunction may issue to preserve the status quo. Compare Vizard v. Moody, 115 Ga. 491 (1) (41 SE 997) (1902), predating the Declaratory Judgment Act.
The trial court did not err in failing to dismiss the case on the ground of improper venue.
2. In 1957, when the mineral owner created his undivided one-half interest in the mineral rights by reservation, the law was that such mineral rights could not be lost by mere non-user. In Brooke v. Dellinger, 193 Ga. 66, 73 (17 SE2d 178) (1941), it was held that mineral rights conveyed in fee simple could not be lost by adverse possession absent adverse use of the minerals themselves.
By enacting
Here, the seven years have passed since enactment of the 1975 law (now
a. In Texaco, Inc. v. Short, 454 U. S. 516 (102 SC 781, 70 LE2d 738) (1982), the United States Supreme Court recently addressed an impairment of contracts claim under the federal constitution regarding Indiana’s Dormant Mineral Interest Act. 2 Under Indiana’s law, a severed mineral interest not “used” for 20 years automatically lapses and reverts to the surface owner unless a claim is filed with the county recorder’s office prior to the end of the 20-year period (or a two-year grace period after the effective date of the statute). “Uses” include mining attempts, payment of rents or royalties, and payment of taxes. After recognizing the power of a state to define property rights and to condition the retention of those rights upon reasonable requirements, 3 the Supreme Court held that since “a mineral owner may safeguard any contractual obligations or rights by filing a statement of claim in the county recorder’s office [, s]uch a minimal ‘burden’ on contractual obligations is not beyond the scope of permissible state action.” Id. at p. 531.
The same is true here. The preservation of the mineral owner’s claim under
b. Unlike the federal constitution, our state constitution protects not only against the impairment of contracts, but also against retroactive (or retrospective) laws. This provision prohibits the impairment of vested rights. “To be vested, in its accurate legal sense, a right must be complete and consummated, and one of which the person to whom it belongs cannot be divested without his consent. A divestible right is never, in a strict sense, a vested right.” Merchants Bank v. Garrard, 158 Ga. 867, 871 (124 SE 715) (1924). It has also been said that: “[t]he term ‘vested rights,’ which cannot be interfered with by retrospective laws, means interests which it is proper for [the] state to recognize and protect and of which [the] individual cannot be deprived arbitrarily without injustice.” American States Water Service Co. of California v. Johnson, 88 P2d 770, 774 (Cal. 1939). Accord, Keller v. Wilson & Co., 190 A 115, 122 (Del. 1936); Board of Commrs. of Everglades Drainage Dist. v. Forbes Pioneer Boat Line, 86 S 199, 202 (Fla. 1920); Rookledge v. Garwood, 65 NW2d 785, 791 (Mich. 1954); Application of Filippini, 202 P2d 535, 537 (Nev. 1949); Troy Hills Village, Inc. v. Fischler, 301 A2d 177, 181 (N. J. 1971).
Mineral rights are valuable property interests recognized and protected in this state. Brooke v. Dellinger, supra, 193 Ga. 66. As such, owners of mineral interests may be said to have “vested rights” in this property. The mineral owner therefore claims a “vested right” to retain his mineral interests against a claim of adverse possession under the state of the law at the time of his contract as held in Brooke v. Dellinger, supra, and that to apply the statute to his rights is a retrospective law in contravention of his state constitutional rights.
It is clear, however, that property is held subject to the proper exercise of the police power by legislative bodies. “The general rule throughout the United States is that a State legislature may
Furthermore as we stated in
Pope v. City of Atlanta,
242 Ga. 331, 333-34 (249 SE2d 16) (1978), upholding the constitutionality of the Metropolitan River Protection Act, “[t]he inherent police power of the state extends to the protection of lives, health and property of the citizen, and to the preservation of good order and public morals and is not subject to any definite limitations, but is coextensive with the necessities of the case and the safeguard of public interest.
McCoy v. Sanders,
113 Ga. App. 565 (148 SE2d 902) (1966). Further, in the area of environmental legislation, the state Constitution specifically authorizes the General Assembly
‘to provide [by law for: (1)] restrictions upon land use in order to protect and preserve the natural resources,
environment and vital areas of this state.’ ” (Emphasis supplied.) 1983
The Code section challenged here was also passed under the General Assembly’s police power. It serves dual purposes: to encourage the use of the state’s mineral resources and the collection of taxes, or to encourage the use of land free of interference by the holders of mineral rights who neither use nor pay taxes upon them. As such it is a reasonable exercise of the police power. By the same token, the statute itself does not divest the mineral owner of his rights; it conditions the retention of those rights upon the requirements of either using them or paying taxes upon them for the public benefit. The twenty-year security deed forfeiture provision found unconstitutional in Todd v. Morgan, 215 Ga. 220 (109 SE2d 803) (1959), did not permit the deed holder to preserve his title by such minimal conditions (e.g., recorded demand for payment within the twenty years). We conclude, therefore, that the 1975 Act is constitutionally valid as applied to this pre-1975 deed. Accordingly, the trial court did not err in granting summary judgment to the landowners.
3. In enumeration of error 3, the mineral owner argues that under the facts of this case the landowners, as tenants in common of the mineral interests, have paid the taxes due from the mineral owner, and hence the taxes on the mineral interests have been paid. See Bank of Tupelo v. Collier, 191 Ga. 852, 857 (14 SE2d 59) (1941). The mineral owner relies on the fiduciary relationship between tenants in common. Fuller v. McBurrows, 229 Ga. 422, 425 (192 SE2d 144) (1972).
However, the mineral owner and the landowners here are not tenants in common in the usual sense because the landowners also own the fee subject to the rights of the mineral owner in one-half of the mineral interests.
5
The payment of taxes by the landowners was made in their capacity as landowners, not as tenants in common of the mineral rights. As we read
Judgment affirmed.
All the Justices concur, except Marshall, P. J., who concurs in the judgment only.
Notes
1983
Art. I, Sec. X of the United States Constitution (Code Ann. § 1-134) provides: “No State shall... pass any Bill of Attainder, ex post facto law, or law impairing the Obligation of Contracts, or grant any Title of Nobility.” (Emphasis supplied.) The phrase ‘ex post facto” applies to criminal, not civil, cases. Calder v. Bull, 3 Dall. (3 U. S.) 386, 390 (1798); Bankers Trust Co. v. Blodgett, 260 U. S. 647, 652 (43 SC 233, 67 LE 439) (1922); Boston v. Cummins, 16 Ga. 102 (2) (1854).
In so holding, the Court relied inter alia on Jackson v. Lamphire, 3 Pet. (28 U. S.) 280 (1830), where it upheld a recording statute as applied retroactively to a senior deed not required to be recorded when delivered, in favor of a junior deed that had been recorded.
It could be urged that the landowners owe no contractual obligations to the mineral owner, and that the mineral owner’s rights are property rights, not contractual ones. In view of the foregoing discussion, we need not pursue this matter.
It is for this reason that