*1 742
ing Magnolia Co. Petroleum v. We reverse and remand for further Howard, ceedings in conformity 182 Okl. 20 herewith. (1938).
The surface subservient estate status was
amplified in interpreting Holbrook as
federal lease. Texas rule has been variously consistently
somewhat stated but
applied to favor the dominance of the les-
see interests: elementary It is that the mineral les- In the Matter of the ESTATE OF
see, insofar as the surface of land is McCUE, James A. deceased. concerned, possesses the dominant es- tate, lessor, owner, McCUE, and the surface Robert A. (Respondent), has the servient estate. The mineral les- see, estate, as the owner the dominant v. right possession has the use and George McCUE, so much of the surface as is reasonably Dexter, Thelma M. and Marion L. required operation in the of his mineral Allen, Appellees (Objectors), ** * possession lease. The rule of dual —i.e., that the mineral lessee is entitled Stockmens Company Bank & Trust to use premises so much of the leased Gillette, Wyoming, Executor of the Es required operations its lease reason- McCue, Deceased, tate of Ap James A. ably necessary development and ex- (Petitioner). pellee ploration, and that the surface owner has No. 88-107. right portion use the of the sur- Supreme Wyoming. Court of required by face so the mineral les- apply rights see—does not where the June parties are conflict.
Getty Company Oil Royal, v. S.W.2d
591, 593 (Tex.App.1967). See likewise Ball Dillard, (Tex.1980);
v.
ty
Company
Oil
(Tex.1971); Humble Oil and Refining
Company v.
(Tex.1967); Lundell, Brown v. 344 S.W.2d (Tex.1961); and Warren Petroleum Martin,
Corp. v. 153 Tex. 271 S.W.2d quoted Texas rule is not
essentially developed different from Wyo-
ming Obviously, damage provi- law. presented
sion significantly here is broader compared damage
when to leases where growing
limited crops.”9 “to Oil,
Mingo long exists, as a valid lease right
ahas occupancy the surface for
development production, Kamp
Cattle retains a repaid to be for dam-
ages caused. growing crop concept
9. The application grazing limited land- Wyo- lands of arid damages frequent argument ming. owner has caused *2 Testament, which contained follow-
and ing provision: my Executor hereinafter hereby direct all which I named to sell real death, provid- may own at the time of however, my Robert A. McCue ed son purchase said shall have appraised value. its McCue thereafter declared James A. was incompetent, Stockmens Bank appellee and Gillette, Wyoming, Company Trust of & appointed guardian of his estate. was 27, 1984, all the On December beneficiaries and of named Will Testament stipulation A. into McCue entered James A. E. and Jane Villemez Charles Graves court-ap- guardian order and a and P.C., Chey- Villemez, Graves, Santini & litem, guardian provided pointed ad appellant. enne, for option, appellant with a six-month effective Rasmussen, Badley & Badley P. Bruce father, upon the death of his George W. P.C., Sheridan, appellees for ranch McCue, M. Dex- McCue, Thelma James E. apprais- by three at a value determined ter, L. Allen. Marion and McCue, ers, one by selected Robert one Of- of Lubnau Law E. Lubnau A. by Thomas the Executor the James selected fice, Gillette, Bank appellee Stockmens Estate, the third one selected McCue and * * Gillette, Wyoming. & Trust Co. *. by appraisers so chosen the two 15, on A. McCue died October James CARDINE, C.J., and Before 1985, possessed of a 16/29thsinterest URBIGKIT, THOMAS, MACY and 4,191 lands. Af acres of ranch surface GOLDEN, JJ. and Testament of James ter the Last Will probate, admitted to A. McCue was MACY, Justice. court, upon appellee motion Stockmens from an order of the an This is Gillette, Wyo Company Trust Bank & appraisal of de- probate court representative of the ming, personal as the in the surface of ranch interest cedent’s deceased, McCue, ap of James A. estate lands. King, Milton B. pointed Joe W. affirm. the es appraise E. McKee to Robert A. raises the 3,1986, they McCue appraised Robert On March tate. appeal: following on issues ranch lands interest in the decedent’s $140,904.31 purchase price for of his death at 1. Whether the acre) of Mr. Williams’ testamentary ($65 per on the basis ambiguous land under an prior to viewing year one by court-approved governed death. decedent’s parties, all interested between stipulation deter- proper means for setting out the 1986, 13, May second was On price. mining said Williams, George B. Cla- by Milton court abused 2. Whether King, appraised L. who baugh, and William its discretion percent of interest one hundred performed pre- was April at a value of 4,191 on acres pared in violation the court’s acre). $147,500 ($35.19 per Mr. Williams appraisers. instructions by personal representative selected was Clabaugh McCue, estate, selected January James On King appellant, and Mr. was selected father, executed his Last Will appellant’s joint agreement appellant McCue, per- George and the Thel- representative. sonal Dexter, ma M. and Marion L. Allen selected A.R. Ostlund. The court selected M.L. April 15, 1986, appellant On submitted a Watson list from the of three names stating letter he wished exercise his vided Mr. and Mr. Ostlund. These option to his buy father’s land for $35 appointed individuals were personal representative acre. The filed its *3 ers and appraise were instructed to the 23, 1986, of on return sale June requesting property at its fair market value on the appellant’s purchase that the court set of- highest basis of the and best use of the hearing fer for because the disparity premises on the date of the appraisals. day the prior between two One hearing, appellees George the scheduled 3,1987, appraisers On December Ostlund McCue, McCue, W. James E. Thelma M. and Watson filed appraisal their which val- Dexter, and Marion L. Allen offered to 4,191 $172,- ued the surface at acres purchase their father’s surface interest in (approximately per acre). $41 On De- 4,191 $94,839.44, acres for an amount 7, 1987, appraiser cember King filed his they alleged twenty-five percent above minority report in which he appraised the appellant’s $75,871.55.1 offer of $148,800($35.50) property at per acre. The minority report states:
Following hearing, the court entered 14, 1986, Mr. August its order on Ostlund made denying con- available to me the upon appraisal completed making firmation the sale him the find- and Mr. Wat- ings son good unsigned. that there was returned basis for either I was appraisals, of the not consulted appellant regarding sight that the inspec- sale refused, tion, sales, comparable analysis, should be and that a new or con- Having of the clusion. already should be testified conducted. The before your matter, court then ordered Court in this that at feeling justified time following conducted manner: with our valuation $147,500.00 agree conclusively a. Robert McCue will submit the Mr. Ostlund’s and Mr. Watson’s valua- competent name of a apprais- real estate tion, I would have been remiss in er. duty my previous appearance. George b. McCue, Thelma M. Dexter and Marion L. 31,1987, appellant On December filed his Allen will compe- submit name resistance alleging that his appraiser. tent real estate appraiser, designated King, Mr. was not
c. The consulted appraisers prior preparation two to the selected will appraisers’ report then submit the names of other three real es- and that the praisal appraisers tate they prior with whom was made off the site can agree, along specified the date for they with the valuation names quali- appraisers. will submit a brief resume of court’s instructions to their On 3, 1988, fications. March the court filed accepting the Watson and Ostlund d. The court will select name from al. This is taken from that order. appraisers the three submitted to it. e. The three as above se- Appellant addresses his first issue will make lected of the real by questioning propriety of the court’s it and submit to the court. appointment of appraiser the third in viola appellant court also ordered that would court-approved tion stipulation. Ap sixty days have from the filing pellant devotes a portion considerable in which to exercise his contending his brief to option pro option. ambiguous vision in his father’s will is For appraisers, their choices of appellant provide that does not the manner for selected William appellees determining appraised value dollars acre 4,191 for 15/irths acres Thirty-five per $75,871.55. equals State, Wyo., 720 P.2d Martin v. the court should have property and 896-897 stipulation. Appellant complied with the objections at the to raise these failed Simmons, England 728 P.2d it would announced the method Rivermeadows, the court (Wyo.1986),quoted in Inc. appraisers and in appointing utilize Holding v. Zwaanshoek and Financier B.V., (Wyo.1988). to the which was ing, his resistance court, argued to and these filed and record reflects that: for the objections appear before this Court individually appraiser a. Each viewed see no reason to appeal. time on property; general rule we from our will deviate prepared draft of an b. Watson raised for the first time not address issues appraisal report all the consideration appeal, on and we continue to decline do appraisers fixing the value of the Sons, so in this instance. Thatcher & Inc. September 21, N.A., 750 P.2d Casper, v. Norwest Bank acre; approximately $41 *4 (Wyo.1988); v. ex rel. 1324 Grindle State c. was to consult with Mr. Mr. Ostlund Compensation Divi- Wyoming Worker’s formal filed King before a sion, (Wyo.1986). 722 166 P.2d but, so, before he could do with the King Mr. informed Mr. that he had in his second is Ostlund contends approxi- previously property valued the at its discretion sue that court abused mately acre and that he was not $35 report Mr. Ost- amount; going change to Watson, to work and Mr. who failed lund in the King contemplated as or with Mr. King copy Mr. was furnished with a d. der, Mr. Ostlund and Mr. Watson and that proposed to be submitted property to as of October failed value signature; court for 5, 1987. King returned the e. Mr. has defined of discre- This court abuse filed with the court which was thereafter Recently, times. we said: tion numerous report; majority as the Ostlund-Watson “ ‘A does not abuse its discre- it in a which tion unless acts manner appraisal fix- f. Mr. filed his own under exceeds the bounds reason ing property at the value for determining In the circumstances. 5, 1987, approximately October or an abuse of there has been whether per acre. $35.50 discretion, the ultimate issue is wheth- glean from record are We unable reasonably or the court could er not why the court instructed * * * ’ it Martinez conclude as did. 5,1987, as of October value the State, Wyo., 611 P.2d v. opposed to the date of death or the date (1980). any in the second fixed sfe [*] [*] [*] [*] n event, appellant has failed to even suggest many things, among which are conclu- means bitrarily with Madsen, Wash.App. sions drawn mined on its circumstances and without “Judicial “ * * * n regard to what sjc or Each case must be deter- sound discretion is a capriciously. Byerly peculiar [*] judgment objective [*] right facts. composite doing so ar- criteria; [*] under the exercised * * *” [*] they than as reason tached interim, have valued the insistence had not appraised it as of in bate court Appellant has not directed the record which valued any significance to the few particularly changed since the first Ostlund that the value September abused it as of October probate and Mr. Watson April its indicates that in view 21, 1987. discretion. court to have at- differently 5, 1987, rather us of Mr. We anything time he King’s see would days’ con- had judg- elude that court exercised sound tained Will and Testament of option ment in the best interest of the estate James McCue. That articu- majority lated as follows: beneficiaries “ ** * appraisal Mr. Mr. Watson. Ostlund and hereby I direct Executor here- inafter named to sell all real property Affirmed. may I own of my death, provided however, my son Robert CARDINE, C.J., concurring filed a A. McCue shall have the first opinion. real property ap- said at its THOMAS, J., dissenting filed a praised value.” J., opinion GOLDEN, joined. in which princi- In accordance with well-established CARDINE, Justice, concurring. Chief law, ples option speaks of the date of the testator’s death. opinion I concur of the court. see this case as a studied effort the trial governs The statute which estate
judge to arrive that was praisals provides, pertinent part: fair, reasonable, accord with the “(a) twenty (120) Within one hundred testator’s intention. The will itself does days timely filing by per- after the specify “appraised value” for representative inventory sonal option exercise of the be that for decedent, pur- assets the estate of the purposes or estate tax 2-7-403, personal rep- suant W.S. that, accept al. I could not a conclusion report resentative shall file under oath a respect granted to the of values of estate assets *5 appellant, powerless the is to do oth- in inventory. report listed the The shall accept er than Whether compliance be in with such the follow- $1,000 per be acre acre. ing requirements may as applicable: be The trial court’s resolution of this contro- “(i) As to all assets listed in the invento- entirely versy appropriate. was ry readily a which have determinable value, market the value of each asset as THOMAS, Justice, dissenting, with date death shall be stated in writ- GOLDEN, Justice, joins. whom (1) ing by person; one disinterested “(ii) I disposition must dissent from the all As to assets listed in the invento- majority opinion. ry this made the It by readily case that do not have a determin- understanding value, personal repre- is able market effect the the instance, majority holding, employ per- in sentative shall this that disinterested sitting to court, probate, the sons determine the fair district did not market value asset, each such the abuse its discretion an as date of to separate report A death. written as property al of real in the estate that was asset, the showing ap- value of each accomplished according the to the statute. praiser’s arriving value, basis for I at the approach being cannot of that conceive report.” shall be to (empha- attached anything other than an abuse added) 2-7-404, sis Section W.S.1977 publishing bate court’s discretion. his (Cum.Supp.1988). Testament, only ap- Will praised value James A. could McCue have The statute the appraisal is clear that is to statutory appraisal. alluded to is the which, be made as of the date of death adoption of an alternative arrived course, option matches the effective a pre- different manner than that articulated in the will. by scribed statute is antithetical to our Consequently, I can find no room for the rule established that intent the testa- adopt court to exercise its discretion and a tor controls. appraisal, different at least in relation to appellant essentially option. Since, seeks to estab- in the context of this purpose exercising lish for the appeal, only that is the concern of Robert option an con- A. the case should be reversed and proceeding in a special an order made that such direction Robert remanded with all, exercised, truly if affects a substantial because is to option McCue’s proceeding. a special is not respect with analysis me My of the date of testator’s causes to conclude that the which was as ap- designation of those is interlocu- death. While order just sense, not match statute praisers tory does in the truest further some respects, I am satisfied that quoted by in all request required relief was Robert nomi- appraisers those were substantially a A. McCue before final order could be and, by personal representative nated speculate perhaps I entered. that a com- sought, though approval even seeking rights of his plaint declaration validity of the that did not affect the will, or an under offer furnished. praisal that those upon by followed based personal representative rejection suggestion it is I that appalled am Consequent- result in a final order. could adopt accom- appropriate addressed the resolution on ly, while have if a different method even plished by opinion, my in the majority merits made approved agreed upon by the heirs this disposition would be dismiss me, no different the court. For interlocutory taken from an as one a distribution different from is not final order as defined in Rule if the provided by the testator from that 1.05, W.R.A.P. agree comport to it. That does not heirs recognizing power any with law he sees
person dispose of his
fit. beyond to go if the were
Certainly, case or- the real were private public or a sale
dered sold at sale option, I
apart would have difficulty the exercise discretion RADOSEVICH, John E. doing *6 whatever (Plaintiff), necessary fair might to assure that a obtained as of value was case, problem is not the this sale. That OF COUNTY COMMIS- The BOARD however, be reversed and should the COUNTY OF OF SIONERS apply, pur- directions to remanded with SWEETWATER, Wyoming; the Board initial poses option, County Solid Waste Sweetwater King, Milton B. Johnson, Joe 1; Disposal No. District McKee, appraised the E. who Crank, and Robert Inc., Wyoming & Fermelia ranch at the (Defendants). interest in the lands decedent’s Appellees corporation, $140,904.31 time of his death No. 88-226. ($65 acre). my judgment, Wyoming. Supreme Court of the value which Rob- praisal established should have ert McCue July property. purchase the is from an order This brings me to further appraisal, which am not able
concern about case.
identify any authority from this court recognize an order
which would a final accepting an
bate 1.05, It pursuant to W.R.A.P. Rule determines the not an order as such judgment. It is prevents
action and