179 P.2d 773 | Wyo. | 1947
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The pleadings may be summarized briefly. The petition alleges that by various transfers and conveyances, plaintiff became, and is now, the owner of all minerals in the land, and entitled to the immediate possession thereof with the right to prospect, mine and operate therefor; defendant claims some interest in said minerals adverse to plaintiff, and the claim is a cloud on plaintiff's title. The prayer is that defendant be required to set out his claim to the end that it be declared that he has no interest in said minerals; that he be restrained from setting up any claim thereto, and that the title be quieted in plaintiff.
In the answer defendant denies that plaintiff has any interest in the property in question; alleges that defendant is the owner in fee simple of said minerals either by various conveyances, or by adverse possession.
In July 1919, by deed recorded in October 1919, Cotner, then owner of all interests in the land, conveyed *197
the surface estate to Carl J. Arnoldus. The deed, in which Cotner's wife joined, provides that the grantors "reserve to themselves, their heirs and assigns, all the minerals, mineral deposits, mineral oils and natural gases of every kind and nature contained in or upon said lands, the surface of which is hereby conveyed," and defines the rights and duties of the parties with respect to the use of the surface of the land in prospecting, mining and drilling operations. It is admitted that a severance of the mineral estate from the surface estate was effected by this conveyance. See Tiffany on Real Property (3d ed.) § 587; Lindley on Mines (3d ed.) §§ 9, 812; cases cited in State ex rel. Cross v. Board of Land Com'rs.,
By a deed dated August 7, 1919, recorded August 11, 1919, the Cotners conveyed the mineral fee to the Occidental Oil and Gas Company, whose title under that conveyance is not questioned.
The next instrument in plaintiff's chain of title is an "agreement of merger and consolidation," dated June 19, 1923, introduced for the purpose of showing that the title passed from Occidental to the Teton Gas Products Company, plaintiff's immediate grantor. This instrument purports to effect a merger or consolidation of Teton, Occidental and two other corporations, all organized and existing under the laws of Delaware. The instrument was proved by a copy showing that the agreement was approved by all stockholders, and that the original instrument, signed and acknowledged on behalf of the four corporations by their officers, was *198 filed with the Secretary of State of Delaware, and that later, on July 7, 1923, a certified copy was filed and recorded in the office of the Register of Deeds of Big Horn county, Wyoming. It was provided among other things that: "The four corporations, parties hereto, are hereby consolidated and merged into a single corporation, to wit: said Teton Gas Products Company, which shall be the name and title of said consolidated and merged corporation (herein called the `consolidated corporation')," and that: "All property, real, personal and mixed, of the respective corporations, parties hereto, * * * shall vest in the consolidated corporation."
The instrument was received in evidence over defendant's objection that there was nothing to show the corporate capacity of the parties to the agreement. In contending in this court that the objection should have been sustained, defendant says that the instrument "is something or nothing according to the laws of Delaware. It is unknown to the laws of Wyoming. Here it would not constitute a merger of corporations. The burden was on respondent (plaintiff) to show that it does constitute a merger, change of name or what not under the laws of Delaware. Respondent offered no such proof." It is true that the authority of Delaware corporations to merge depends on the laws of Delaware, and we shall assume that the objection at the trial was sufficiently definite to inform the judge and plaintiff that defendant was calling for evidence of the laws of Delaware to show such authority. The merger agreement purports to have been authorized by, and executed in accordance with, the laws of Delaware, and we think that defendant, a stranger to the corporations, could not question the title of Teton under the merger agreement on the ground that the merger was ultra vires. See Fletcher on Corp. (Perm. ed.) § 3448; 13 Am. Jur., Corporations, § 759, et seq.; 19 C.J.S. Corporations, *199
§ 981; McDonald v. Mulkey,
If we should concede that it was the duty of plaintiff to meet defendant's objection by showing that the merger was authorized by the laws of Delaware, we should under the Uniform Judicial Notice of Foreign Law Act (sec. 3-3109, et seq. C.S. 1945), in accordance with our holding in Trepanier v. Standard M. M. Co.,
The mineral fee was conveyed by Teton to plaintiff by deed dated September 8, 1930, acknowledged on the same day, and recorded in Big Horn County on October 20, 1930. At that time the statute provided that a conveyance of land should be executed in the presence of one witness who should subscribe as such (§ 97-114, R.S. 1931), and a deed not so witnessed was not entitled to record. State ex rel. Nash vs. Cowhick,
Defendant argues at length, and cites cases from other jurisdictions, in support of his contention that a deed not witnessed as required by statute is void. But that is not an open question in this state. In Whalen v. North Platte Canal
Colonization Co.
It is stated several times in defendant's brief that the recording of the deed which was not entitled to record, gave defendant no constructive notice thereof. We may assume that that is so (Frank v. Hicks,
We are of opinion that plaintiff's evidence was sufficient to prove its title to the mineral fee by the conveyances noticed above. We think it is conceded that neither plaintiff nor any one else has done any mining *201 or drilling on the land, and that the presence or absence of minerals is a matter of speculation. Plaintiff, however, has returned the mineral fee for assessment for taxation, and paid taxes thereon, commencing with the year 1933.
Evidence offered by defendant at the trial was excluded. A tax deed based on a sale of the land for delinquent taxes for the year 1924 was excluded when plaintiff objected on the grounds, first, that it had been held by this court that the assessment roll of Big Horn county for the year 1924 was invalid as the basis for a sale of the taxed property (see Brewer v. Kulien,
Defendant asserts that plaintiff lost title to the mineral fee in the year 1932 by sheriff's deed pursuant to a sale ordered by the judgment in an action by Sidon Canal Company against Carl I. Arnoldus and others, which we shall call the Sidon case.
The petition in that case, filed June 2, 1927, shows that Sidon owns a canal and furnishes water for irrigation and domestic purposes to its stockholders owning irrigable lands lying under the canal; funds necessary to pay costs of operation, maintenance etc. of the canal and irrigation system are raised by yearly assessments levied on the capitol stock of Sidon, and said assessments become a first and best lien on "the land and on the water right thereto lying under the said canal." Defendant Arnoldus is the owner or supposed owner, as shown by the records of the County Clerk of Big Horn county, of 280 acres of land (including the 80 acres involved in the case at bar) lying under said canal, and also owns shares of stock "for the purpose of obtaining water for irrigation and domestic purposes" for said land. Assessments, as mentioned above, for the years 1923 to 1927 have been levied upon the land belonging to Arnoldus, and the amount thereof, total $1115, is due and delinquent. The prayer is for judgment for that amount with interest, and that in default of payment "the land and water right thereunto be sold as upon execution for the payment of the lien and judgment."
In the Sidon case there were several other defendants besides Arnoldus, including Ohio, plaintiff in the *203 present case, and Occidental. Sidon alleged that those defendants had or claimed some interest in the land, but their interest, if any, was inferior and subject to the claim and lien of Sidon.
Ohio answered by general denial. At that time it had no interest in the mineral fee, and the judgment recites that it had "entered a disclaimer and withdrawn from the case." Occidental in its answer, filed January 8, 1928, alleged that since 1919 it owned the minerals underlying a 40-acre tract described in the petition (part of the mineral fee involved in the present action). Thereupon, Occidental was dismissed from the case. Teton, successor to Occidental, and having at least the equitable title to the mineral fee from 1923 to 1930 under the merger agreement above referred to, was not a party to the Sidon case, but on September 8, 1930, before the judgment in that case was entered, it conveyed to Ohio, a defendant in that case and plaintiff in the present case.
The Sidon case was heard in the District Court in May 1929, but judgment was not rendered until January 1931. The court found that Arnoldus was indebted to Sidon in the amount of the assessments, and that the lien of Sidon "is for unpaid water assessments under the Carey Act project," which includes the land described in the petition, and is "a first, best and prior lien * * * superior to the claims, rights and interest of all defendants in said cause except defendant, Occidental Oil and Gas Company." There was a money judgment against Arnoldus for the amount of the assessments, which was declared to be a first lien against the land. If the judgment were not paid in five days, plaintiff was authorized to have the land sold as upon execution, and it was declared that the purchaser "shall acquire all of the right, title and interest whatsoever of all of the defendants". *204
The Sidon case was brought to enforce the lien authorized by section 792, C.S. 1920, now section 24-420, C.S. 1945. It is there provided that companies operating "devices for the distribution of water for irrigation" are authorized to levy and collect assessments for the cost of operation, maintenance etc. of the irrigation works. Payment of the assessments are "the necessary requisite" for the use of the irrigation works for the irrigation of "the lands deeded or described in contracts for or deeds to proportionate interests" in such irrigation works. Such companies "shall have a lien upon the proportionate interest in such reservoirs, irrigation systems and ditches, (which) shall become a first lien upon the lands deeded or described in contracts for or deeds to such proportionate interests for the amount of any unpaid assessments which may be enforced in a court of competent jurisdiction, as in the case of other liens. * * * This section shall include all lands under any of the above named systems if water has been used or is being used in any one irrigation season providing that water is in said canal, reservoir or ditches, subject to use of owners."
We think it clear that the lien of Sidon under this statute did not attach to the mineral estate which had been severed from the surface estate before the assessments were made. The owner of the mineral state had no "proportionate interest" in the Sidon Canal, and owned no land irrigable therefrom. The mineral fee was "land" (State ex rel. Cross vs. Board of Land Com'rs.,
The effect of the judgment in the Sidon case must be determined in the light of the statute and of the issues in that case. The word "land" throughout the proceeding means the land subject to Sidon's lien. Sidon was not interested in the mineral fee, and its petition could raise no issue as to the title of any property not burdened by the lien for assessments.
Parties, other than Arnoldus, who were in the case as defendants, were not called upon to defend their title to the mineral fee. This evidently was the theory in the trial court when Occidental was dimissed from the case after it alleged its ownership of minerals underlying forty acres of the land. The record in the Sidon case contains no reference to the mineral fee, except in connection with the claim asserted by Occidental. The declaration in the judgment that the lien for the amount of the assessments was prior and superior to the rights and interests of all defendants, and that the purchaser at the sale would acquire all right, title and interest of all defendants must be construed to mean only that it was determined that no defendant had any *206 right or interest in the land subject to the lien that was being foreclosed.
We hold, therefore, that the purchaser at the sheriff's sale in the Sidon case in 1932 acquired no interest in the mineral fee, and we assume that he did acquire the surface estate in the 80-acre tract involved in the present case. We may also assume, in accordance with an offer of proof made by defendant, that shortly after November 4, 1932, he became the owner of the surface estate; on November 14, 1932, he conveyed the surface to one Kane, and thereafter Kane and his grantees have been in possession of the surface estate.
Defendant contends, also, that he has title to the mineral fee by adverse possession beginning in 1930, when he obtained a deed from purchaser at the tax sale, and continuing even after 1932 while Kane and Kane's successors occupied the surface. There could have been no adverse possession of minerals that have never been worked or even discovered. The authorities are unanimous in holding that where the surface and mineral estates have been severed, possession of the surface by its owner, cannot be adverse to the owner of the minerals, and that there can be no adverse possession of the severed mineral estate in the absence of mining operations. The cases are collected in notes, 13 A.L.R. 375; 67 A.L.R. 1442; 93 A.L.R. 1232. The rule is not changed by the fact that no one knows what minerals are or are not present. Stowers v. Huntington Development Gas Co.,
A question of procedure is raised by defendant's contention that an action to quiet title cannot be maintained by a plaintiff not in possession.
The code of procedure, in the article on real actions, provides that: "An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest." Sec. 3-7001, Wyo. Compiled Statutes 1945. Another section in the same article provides for an action for the recovery of real property by one who "has a legal estate therein, and is entitled to the possession thereof" against a defendant who "unlawfully keeps him out of the possession." Sec. 3-7003, C.S. 1945.
Plaintiff did not allege that it was in possession of the minerals, and the evidence, which showed that neither plaintiff nor defendant was in actual possession of the minerals or of the surface estate, did not justify an action to recover possession under Section 3-7003, the code substitute for common law ejectment.
Actions to determine adverse claims under Section 3-7001, and similar statutes in other states, are commonly called actions to quiet title, though the statute does not give them that name. It is not necessary that the adverse claim that may be determined under the statute should be of any particular character. Pomeroy on Equitable Remedies (2d ed.) § 739; Rhea v. Dick,
The decisions, some stating that a plaintiff in an action to quiet title must be in actual possession, and others holding that actual possession is not necessary when no one else is occupying the land, can be reconciled and brought within the statute by giving the word "possession" as used therein the meaning suggested by Tiffany, who after stating that in spite of its practical importance from a legal point of view, the idea of possession appears peculiarly insusceptible of accurate definition, *209 continues: "We may say, however, speaking generally, that one is in possession of land when he is in occupation thereof, with the intention, actually realized, of excluding occupation by others, or when, although not in actual occupation, he claims the right of exclusive occupation, and no person is in occupation opposing his claim." Tiffany on Real Property, (2d ed.) § 14, (3d ed.) § 20.
A plaintiff who admittedly is not in possession of land, may have an adverse claim determined, in order to quiet his title, under principles stated in Chesney v. Valley Livestock Co.,
Counsel have not asked us to notice the Uniform Declaratory Judgment Act (Sec. 3-5801, et seq. C.S. 1945) in this connection, but we think it is not improper for us to add that, after a trial of issues raised by pleadings showing a dispute over the title, we should not reverse the judgment which may be sustained under that act. An action to quiet title is essentially an action for declaratory relief. Holly Sugar Corp. v. Fritzler,
Other and minor contentions of defendant have been considered, but are not discussed herein, as they do not seem to raise any question of error affecting the merits.
The judgment will be affirmed.
RINER, Ch. J., and BLUME, J., concur. *211
