*1 statutory powers. terms stitutional and writ been It has also held synony- properly denied. are used certiorari was “remove” “discharge” and guardians. mously with reference to remedy is adequate While the issue of Bonding Ins. Maloney Massachusetts & v. presented it proceeding, and while this 421. Co., Cal.App., 417, 114 P.2d 32-3301, no true doubt under Section Dictionary, 1943,although a board exceeded International Webster’s New power authority, its and often referred to Edition, gives one defini- Second jurisdiction, ordinarily force its certiorari “To word “remove”: tions of the away; plain, will not place go lie there (one) leave speedy adequate remedy, office; as, specif.: need dismiss from a. To question consider that since we have deter- postmaster.” remove a power mined Board had explicit language Under the authority appellants. to remove the authority constitutional the statutes ' The dеcision of the trial court affirmed. there granted the Board can appellant with discharge the right of its their removal assigning out cause for GRIMSON, SATHRE, J., C. so. if it saw fit to do hearing,
without a
MORRIS,
BURKE,
JJ.,
concur.
Olson,
v.
65 N.D.
rel. Weeks
See State ex
of the Board
407,
The action
was in accord by the State Constitution in it
vested statutes, operates. How under appellants af case, were
ever, in this they they right claim every to which
forded Dakota the North under entitled
were Writ College constitution. MacMaster, Agricultural D.A. MacMASTER and Neva H. Respondents, They Plaintiffs against them. charges filed wеre ten. hearing before lengthy given a were up by College set Advisory Committee ONSTAD, Appellant. H. G. Defendant and hearing and the After constitution. No. 7666. presented for the evidence consideration Advisory -appellants, the against Supreme Court of North Dakota. “cause” was that there deemed Committee 28, Oct. 1957. and recommended discharge for their Rehearing discharged. It they be Denied Nov. the Board recommendation only after such Bоard, after to the
Advisory Committee involving Board before the argument hearing, that presented at the
the matters discharged. were appellants the record before us clear from appellants allowed only were the
that not they rights were entitled to which all of College constitution, but in ad- hearing was had in a formal thereto dition represent- participated and were they by counsel.
ed Board in dis- determine
We appellants con- acted within its
charging the
<1CO . S8
after part contained on paid, kept performed, lessee to be granted, let, demised, leased and presents these grant, does de- mise, exclusively unto and let Williston, O’Connell, ap- Burk & said lessee with right exclusive pellant. mining, exploring by geophysical Neff, Williston, Bjella, methods, & operating Jestrab respondents. producing casing- gas,' therefrom *4 gas, head casinghead gasoline, and all Cox, Bismarck, Engebretson, & Pearce lines, minerals, other pipe laying and as amicus curiaе. telephone lines, telegraph and and tanks, stations, building power gaso- BURKE, Justice. plants, ponds, line roadways and produce, structures thereon and save statutory This is a action to determine take products, care of and the said ex- property. adverse claims to real Issue was right water, injecting clusive brine of joined upon of whether an .strata, and other fluids into sub-surface plaintiff oil and lease which the and housing boarding, employees and leased certain lands to the defendant with any and priv- and rights all other and right operat- mining the exclusive of and ileges necessary, to, incident or con- oil, ing gas, producing casinghead and operation venient for the economical casinghead gas, gasoline and all other alone, conjointly neighboring or minerals, in, gave an interest lessee land, production, saving, for the and right from the describ- to extract oil, taking gas¡ casinghead gas, care of land, specifi- ed other than those casinghead gasoline, and all min- other cally named the lease and those which injection erals, water, of brine and through drilling could be and recovered strata, and other into fluids subsurface operation of an oil and The trial well. all that certain tract of land situated judge applying construed the lease and County Williams, of State of ejusdem generis in rule the construction Dakota; follows, North described all the words “and other minerals” held wit: granted interest are, be, produced minerals “as or can North, Township Range 1S6 102 West with, in connection as an and incident of production gas through and SW.14, oil Section 30: Lots 4 3 E½ well,” grant and did in- means of - - — - Township which are from in minerals extracted of Section terest acres, types opera- containing mining Range-and other the land less, appealed being purpose dеfendant has from or tions. The more lease, and demanded a trial lessor herein to judgment de novo intent of the hereby all does this court. lessor lessor which lands owned said of the standard The lease is one forms of lands above adjoin the mentioned or It is gas leases. entitled: “Oil lie in the section or sections important pro- The more Gas Lease”. n specified. herein are as follows: visions lessor, provisions “Subject to the other That hеre- “Witnesseth: agreed of, it is this lease (1) of One shall re- Dollar in consideration paid, receipt in force for a term of years in hand main Two cash (1.00), hereby (herein ‘primary this date acknowledged, and of from called long agreements and as term’) herein- thereafter as covenants conveyance mineral gas, gaso- “No lease or gas, casinghead casinghead rights royalties separate from the or produced from line mineral is or other property in real in this rights surface premises. said leased or state shall be construed to premises “In consideration of the convey grantee to the in- thereof agrees: said lessee covenants coal, clay any gravel, terest and to convey or uranium unless the intent to 1st. To the credit of deliver to sepa- specifically and such interest is pipe lessor, cost, line to free rately set instrument wells, which lеssee connect his conveyance.” equal part of all oil one-eighth produced and from the leased saved September The lease was executed premises, option, or at lessee’s governed by 1956, and therefore these pay one-eighth lessor for such to the provisions. statutory It follows that the royalty, price oil of the market therein, minerals”, “all words as used grade gravity prevailing like on the coal, clay uranium. gravel, not include do day pipe line oil is into the *5 such run is storage generally The construction of the lease or tanks. into subject statutory rules of inter- to certain pay one-eighth, “2nd. To the lessor pretation. per- which consider Those price market at the well for the at the here are as follows: tinent used, for from well gas gas so the each language only found, “The of a contract is to is while gas the same where interpretation if the lan- govern premises, used off les- its being is explicit guage is clear and and does not gas any cost sor to have free of from absurdity." 9-0702, all involve an Section such for and all inside well stoves lights principal dwelling house by during land the same time on said contract “When a reduced is to
making his own connections with the
writing,
parties
the intention of the
is
expense.
his own
wells at
risk and
writing
be ascertained from the
to
pay
gas pro-
for
“3rd. To
lessor
pоssible, subject, however,
if
alone
to
from
oil well
used off
duced
chapter.”
provisions
the other
of this
premises or for the
manufacture
9-0704,
Section
NDRC 1943.
gasoline, one-eighth,
casinghead
at the
for
price
gas
at the well
so
“The whole of
contract is to
market
be
used,
together
during
give
so as
effect
time
such
taken
to
to
used,
part
practicable.
payments
every
reasonably
gas shall be
said
to be
monthly.
interpret
help
Eаch clause is to
made
9-0706,
others.” Section
NDRC 1943.
pay
lessor,
To
or
to
“4th.
deliver
on
marketed,
minerals mined and
all other
“The words of
contract are
be
or
either in kind
value at the
one-tenth
popu-
ordinary
in their
understood
mine,
except
election,
at lessee’s
well or
according
to their
lar sense rather
sulphur
royalty
be
that on
shall
legal
by
meaning, unless used
strict
(50$) per long ton.”
fifty cents
sense,
parties
a technical
or unless
special
given
meaning
by
is
to them
spe-
of the lease
sets
The balance
usage, in
case
must
the latter
parties in
connection with
rights of
cific
9-0709,NDRC 1943.
followed. Section
operation upon
leased
gas
oil and
premises.
Upon
of the lease
consideration
first,
principles, we conclude
arising upon a
of these
light
construction of
issue
The
instrument,
of the
part
chapter
the title
its
settled
from
this
that,
provisions
chapter providеs :
as the trial court
This
overall
N.D.1955.
Laws
lessor, on all
“To
deliver
pay or
found,
considerations
primary
marketed,
develop-
mined and
other minerals
exploration
parties were
value at
in kind or
one-tenth either
controversy
of the lands
ment
election, ex-
mine,
at lessee’s
well
casinghead
oil, gas,
production of
sulphur
royalty
cept
de-
shall
judge
that on
trial
casinghead gasoline.
(5( n )
necessary
fifty
per long ton.”
cents
conсlusion made
this
cided
ordinary
upon the
place a limitation
immediately
paragraphs
A review
these
“all other
the words
popular
sense
poses
question:
royalty of
If a
12i/£%
maxim
application of the
minerals”
upon
provided
by para
all oil and
construction.
to their
generis”
“ejusdem
graphs 1, 2 and of this
section
upon
are
what
the minerals
which a
in-
however,
10%'
us,
appears
the,
payable
paragraph
four?
placеd on
terpretation
Respondent
this
considers the answer to
certain
completely vitiates
court
trial
says
simple
one and
grants
provisions. The
specific
its
hydrocarbons
are
associated
mining,
privilege of
exclusive
lessee “the
methane, ethylene, acetylene,
and'
and other
geophysical
exploring
ethane,
paraffin. To this list could be added
operating
producing
methods,
for and
propane,
perhaps many
butane and
others
casinghead gaso-
casinghead gas,
oil, gas,
paraffin compounds. These, however,'
minerals”.
and all other
line
They
other minerals.
are the sub
particular sig
perhaps
There
which,
stances
composition1
either
*6
that the lease author
in the fact
mixture,
nificance
up
gas.
make
the oil
They
'are
mine
to mine since the verb
the lessee
izes
derived from the crude oil and
gas
natural
to
commonly
gas
used in oil and
leases
is
by processing either in refineries or natural
however,
is,
operations.
It
drilling
include
gasoline plants and
royalty
no
payable
is
ordinary
its
all inclusive word which in
an
directly upon
products
such
.upon
but
the
every operation by which
includes
sense
oil
crude
or natural gas when it is
to>
sold
are
from the
usable materials
extracted
processor.
the
This royalty is the,12[4%
suggest
does not
of the word
The use
earth.
royalty payable
under
paragraphs
interpretation of the lease but
restricted
a
1, 2 and 3.
Magnolia
See
Petroleum Co.
one, if the unlimited
an unlimited
rather
Connellee, Tex.Com.App.,
v.
Co. Pe expensive exploration for oil. App., 182; Pabst Roxana course of v. S.W.2d Corp., Particularly 51 S.W.2d a where Tex.Civ.App., troleum is this true in case discovered, appears It neither the case of therefore that was by “hydrocarbons” ninety per-, re- suggested class “wild cat” be about wells would class, “that can spondent minerals cent nor of the time. produced with, and as an in-connection upon In this not cаse we are called production gas of oil and incident of the any specific substance, to determine if other proper well”, a through the means a is, not, uranium, than mineral “all placed upon words limitation to granted by far lease. In so uranium consider- minerals” other the lease under is concerned it is excluded from the upon limitation If there is class ation. specifically statute since it is not those such words it broader either separately clear; mentioned therein. include mentioned, class must because the however, that “all words other min sulphur recovered which cannot be solids subject are erals” to some limitations and operation oil well. do everything not include is neither decision, court’s trial It follows that the vegetable. animal nor The Mississippi minerals”, as used “all other words in holding gravel Court consideration, included in the lease grant suggests mineral within the terms of а produced might be only minerals “ejusdem generis” the maxim of well, was operation oil and of an applied should be what determining the trial reaching his decision In incorrect. other minerals under a lease of upon the case great extent court relied and that the classification Ass’n Diamond Oil Praeletorian *7 part should be minerals are which not a In 698. Tex.Civ.App., 15 S.W.2d Garvey, Witherspoon the Campbell, soil. v. 219 the its decision on court based case the that 640, 69 Miss. So.2d 384. the To same effect controversy, lease, there in that the fact Wessels, is Tex.Civ.App., Psencik v. 205 S. only gas for payments royalty
provided
658, 660,
W.2d
wherein it is said: “The term
pipe
in
lines
delivered
minerals
and other
cognizable
'legally
as minerals’ must there
in that case there
In the
tanks.
and
fore be restricted to such minerals and
royalty
provision for a
no
was
apparently
commonly regard
mineral substances
are
minerals
all оther
rate on
different
aat
ed
distinguished
as minerals as
from the soil
a
and
marketed
mined
in general.”
Allen,
In Heinatz v.
147 Tex.
sulphur.
is
The case
on
ton
a
fifty cents
994,
512,
1000,
in deciding
S.W.2d
that
point here.
in
not
limestone was not within the terms of a de
will,
in a
the court said:
stated,
vise
agree
“This sub
already
we
been
has
As
* * *
exceptional
has
stance
no rare
respondent in
court and
trial
value,
character or
object
being
only
primary
useful
that
conclusion
limestone,
building purposes. The
like
development
sand
of the de-
was
this
gravel,
reasonably
is so found as
production
of oil
be
for the
premises
mised
part
a
considered
the surface rather
that the lan-
than
are also satisfied
gas. We
part
Limestone,
mineral estate.
of the
clearly
a
sand
evidences
sec-
the-
guage
gravel
quarrying,
are removed
produce other minerals
re
not
ondary intent to
in
virtual
from,
sulting
destruction
entirely
with,
different
associated
suggests
This decision
surface.”
that
a
is said that such construc-
It
gas.
n
conveyed by
of minerals
class
a mineral
and unconscionable
unreasonable
tion
valuable;
is limited to those which
deed
are
loss the lessor
great economic
of the
because
for,
may
asking
greater
relief
be mined
soil and
part
void.
null and
To
the defendant’s claims be held
surface.
destroying the
without
intimation,
Edmondson, Tex.
the statute
can see
We
no
Eldridgе
same effect
pleading,'
abrogates
ordinary rules of
Civ.App., 252
S.W.2d
re-,
extraordinary
special
where
be not
clear that it would
is thus
sought.
lief
There is no.
reformation.is
attempt to
impossible to
impractical, but
is,
question but
rule
general
that the
are, and
catalogue all the minerals which
facts,
sought,
where reformation is
not,
grant in the
which are
included
pleader
to reforma-i
would entitle the
as to
Decision
lease under considerаtion.
pleaded
be
tion must
relief must
be
and the
any specific
whether
mineral
included
In-,
demanded. 76
Reformation-
G.J.S.
in which
the lease must await a case
support
struments 72. In
of his contention
§
to that
issue as
mineral is raised.
plain-
that he was
to reformation
entitled
Polsfut,
tiff
cited the
Wilson v.
respondent
that,
case of
if the
also contends
204,
78 N.D.
It is urging of the extent interest in the land against complaint. of defense a counterclaim in matters described states, He “the 32-1709, supra, specific Section minerals, dis issue with to the gold, silver, cinnabar, who copper, One seeks relief penses. reforma lead and other mineral urging presented than a much-more defense is. tion metals here and now.” respondent’s agree cоntroversy.
If substance statute we were to (section 32-1710, it lease, pro- 1943) that to wit: construction of that, gas, vides oil and associated in an adverse granted an interest action to determine course, claims, could, de- find hydrocarbons only, court in its we “The decision shall issue, agreement an the nature for' and extent cide that such of the claim asserted parties” certainly itself, minerals would, metal contem- various exclude plates сould attorneys parties that will Also we from the lease. provide thought we sufficient reach the same conclusion evidence enable validity in court any persuasiveness they want there decided decide issues minerals go metal and that respondent’s that will argument decision the court no farther As lease because cannot the evidence warrants. be included than min- petition, provides urged a on other other matters in the mine, оpinion at we think enough their value of one tenth of has been said in erals only can petition filed. The metal and that value of denied. premise If the at the smelter. determined GRIMSON, J., JOHNSON, C. value of argument of this be true MORRIS, SATHRE JJ., concur. assay
ore cannot be determined nevertheless, is, that sample, obvious mine at have a the ore would value at the smelter would be its value
that value transportation. cost of
less the lease, .only evidence to the
In addition stipulation that this case have testify he that owned plaintiff would LEMER, Appеllant, John Plaintiff and subject complaint, land described in by the defend- gas lease owned oil except all minerals ant and that KOBLE, Haneberg George Joe Roman hydrocarbons Sendelbach, Township unencum- as the Board and associated Su pervisors Strege McHenry Township, lease; defendant and that bered Dakota, Strege County, North Town testify he owned would ship, public corporation State under the all other minerals gas and Dakotа, Kuntz, North and Jack J. Defend “all other land and the words described Respondents. ants lease, minerals”, included used No. 7717. animal nor everything was neither vegetable. Supreme Court of North Dakota. Construing we held both Nov. say: we wrong, is to parties were included minerals other the lease held that did not include hydrocarbons and *9 vege- animal or
everything that was neither go under far we could That is as
table. in the case. evidence reported cases with
In all of familiar, which are (some of we are filed) opinion
cited specific a mineral substance was
whether has not terms of within abstractly upon the but basis decided
been respect the case the evidence