*1 only contempt where the accused of that there be a person separately stated charge for “guilty contempt determined to contempt be each for which conviction is case, for charged.”1 In this the motion sought, for may and which he be found cause, sup- punished. to show the affidavit in guilty and If is charged he with motion, itself order, and the order the of port violation a court the determi- of charge only a course conduct in violation nation he guilty should be whether order, the restraining separate charge; proliferate not 120 and it does not into multiple charges, day violations. to by day, neither as hour, minute, hour or minute nor ques- parties have addressed the by denture, tooth, denture or tooth a “charge” tion of what constitutes merely proof relating because the carefully statute. Where may contempt sepa- be of number of for provide procedure contempt punish- rate acts. does) (as Chapter ment Title 78 “charge” regarded must my opinion be as the content It is that this Court should per- the formal documents served trial forthrightly state that the court ex- contempt response son accused of and in authority in imposing penalty ceeded appearance. $12,000 which he days jail made his The de- of 60 in and in fine for process acts, mands of due are not if the separate satisfied all were proof of which but punishment beyond dimensions of the are supporting charge contempt. I contemplation the reasonable of the accused sentencing would remand for consistent context of the motion and order to expressed with the views herein. cause show with which he was For served. reason, that, we rule under the order case, show cause in this improp- the court

erly imposed pun- sentence excess of the permitted

ishment statutorily in- one

stance of contempt.

The order appealed from is and reversed cause imposition remanded for sen- DYE, Dye, Gerald R. Gerald Richard aka opinion. tence consistent with this Enterprises, Inc., Producing a and Gas Respondents, corporation, Plaintiffs and ELLETT, J.,C. concurs result. v. CROCKETT, part): (Dissenting Justice VIELE, corporation, Lee MILLER Regrettably, agree I cannot with entirely Miller, Lewis, Lesley F. Charles and per curiam opinion. This is because I Company, corporation, Chevron Oil may think it lack certainty, result in both Appellants. and Defendants case, to what should done in be this No. 15475. to the law generally. The soundness of a sentencing the statement that has judge Supreme of Utah. Court in regarding separate discretion vio- acts of Nov. separate contempt, lation instances of separately punished, is to be doubted. process Due fairness require that a charged

person contempt be informed given opportunity respond an to and against charge charges

defend each him; require

made this would order) contemptuous 1. The statutes are not source tion of there is no reason for other source of deemed power contempt. punish court’s Where to resort to the court (viola- specific authority. the statutes cover the conduct *2 140

HALL, Justice: (“Miller Viele”) Defendant appeals from portion summary judgment quieting title in plaintiff (“Dye”) to an un- divided one-half interest all the miner- ¼, 29, T1S, in the NW als ¼ NW Section R1W, U.S.B.M., situated in Duchesne Coun- ty, Utah.

Dye and Miller & Viele each moved summary judgment for undisputed facts parcel abstracted follows: The 40-acre question subject was of a 1927 prelimi nary tax sale County to Duchesne pay delinquent real property taxes thereon for year 1926. Dye claims title virtue subsequent pursuant tax deed issued (no “May redemption the 1932 Sale” having sale), following made the preliminary conveyances and mesne thereafter. Miller & Viele’s claim to title from stems a 1928 mortgage sale, foreclosure and execution Deed, Sheriff’s conveyances mesne Viele, thereafter. Neither Miller & nor predecessors interest, of its or successors in paid any have occupied taxes nor or claimed any right possession prior interpo sition of its this lawsuit. In 1946, one of predecessors in interest solicited and obtained a quitclaim deed from Miller & Viele to the said 40-acre parcel wherein the one-half mineral interest dispute 1964, was reserved. In purported disputed Viele to lease said one- half mineral Compa interest Chevron Oil (a ny defendant significantly who did not join in summary the motion judgment for n here). nor as appellant 1971, Utah Board of Oil and Gas Conservation entered its order establishing the whole (640 acres) said Section 29 as a drilling unit directing one well be drilled oil, the production for gas, hydrocar bons therefrom. Miller & Viele makes no Maeoy McMurray, Dale, A. J. Robert Salt possessory claim of actual rights, except as City, Lake appellant. defendant and might be asserted under a document enti Lewis, J. Pruitt, Jr., Leonard tled Agreement,” Robert G. “Communitization com Lear, Phillip Wm. City, Salt Lake plain- monly a “pooling agreement,” called dated tiffs-respondents. October agreement 1973. This was exe- judgment quieted well, Dye appeal

1. The title in no is taken to the surface as but therefrom. Viele, Chevron, Dye, quiet of real or to cuted ownership determine the thereof in said title or having an interest Section all others interposed against shall be commenced or unit. comprises expira- the holder of a tax title after the grant or trans- is not a pooling agreement tion of four from the date of the interest, terminable mutu- but one fer sale, conveyance or transfer of such tax by certain other conditions al consent and *3 any county, directly any title to or agreement desig- therein. set forth' Said purchase any public other thereof at or “operator” as the and its nated Chevron private expiration tax sale and after the (some to drill a well one-half function was year of one from the date of this act. dispute), for the property mile from the Provided, however, that this section shall accumulating the oil from purpose any by bar action or defense 29, areas of all of said Section subsurface legal owner of the title to such property it, proceeds prorata and to allocate sell predecessor actually where he or his has as their interests thereto occupied or been in possession actual appear therein. property years such within four from the provisions rely upon Miller & Viele interposition commencement or of such 1953, U.C.A., support- and 5.2 as 78-12-5.1 further, provided action or defense. And challenge tax title. ive of its that this section shall not bar defense provisions read as follows: Those town, by city by or to an action possession or with- 78-12-5.1. Seizure title, holder of a tax to the effect that years title. —No seven —Proviso—Tax city such or town holds a lien recovery property of real or action for the property equal such which is or superior shall main- possession thereof for the to the claim of holder of such tax tained, prede- plaintiff unless the or his [Emphasis title. added.] possessed or of such was seized cessor facts, foregoing Based the trial property years within seven from the ruled that Miller & Viele had not court action; provided, of such commencement within the contem- however, respect to or that with actions plation the statute relied brought interposed or for the defenses its barred. claim was therefore recovery quiet or of or to title ownership concede that the prop- or determine the of real Miller & Viele whether or not its claim is erty against appeal the holder of tax title issue on by provisions such no such action or defense barred interposed rely. more The sum and sub they shall be commenced or which after the of the tax its is that said statutes years than four date stance of contention deed, conveyance, creating provide absolutely or transfer no time limitation for a title, provided there person challenge such tax title unless the commenc- to a tax has occupancy such action or or ing interposing or defense been actual time, brief, obtained, predecessor actually occupied or his has however and however property years of such within four from the initiation of the or been years prior challenge. fallacy to the commence- of that contention within four interposition previously by of such action or was observed this Court in ment or wherein it was stat year defense or within one from the ef- Peterson v. Callister2 fective date of this amendment. ed: [Em-

phasis of limita- added.] Title 78-12-5.1 is a statute the assertion of a prevents Holder of tax title —Limi- tions

78-12-5.2. has not a record owner if he tations of action or defense —Proviso.— during a recovery property or action or defense for had No Morris, 310, (1957), reaffirming 2d 283 P.2d Hansen v. 3 Utah 2. 6 Utah 2d 313 P.2d (1955). one four-year period after has received a The trial court correctly determined thereto, face, that Miller & Viele had not been in title on its actual valid any time the four this is true the tax title is whether valid following the tax deed. it is abun or not. It is not unlike statutes of dantly clear the facts from that it has never limitation, barring an such as those action been in possession. actual negotiable by passage paper of time. obligation may case in such remain Miller does & Viele not claim a share of enforce but the holder cannot it. Like- production by presence the oil on the sub- wise, ject technically may property title either itself “les- not have see,” Chevron, nor does it claim oil in passed record but the owner cannot place under pos- as an actual assert his title because statute’s Rather, sessor within its boundaries. it ad- against asserting interdiction title or set- theory vances a might novel best be ting is a up defenses. statute of re- *4 “constructive, termed possession.” adverse pose, obviously lay intended at rest Chevron, operator claims that as the of against claims which tax titles are assert- well having possession and of the oil at such ed years acquisition more than four after time as it captured is drained off and of a tax title statutory proceedings, tanks, storage is somehow in posses- “actual and where owner the record has not had sion” Dye’s land, of the oil in being a period. during that “lessee,” Viele, “lessor,” as be- case, in anticipation decision in that comes possessor” the “actual of oil. said just of such a case as future the one now The fallacy obvious of such contention further presented, made the observations that if the pooling agreement confers about the content of Titles 78-12-5.1 and Chevron, “operator,” as the actual posses- 5.2: land, sion of the Dye’s oil under it would similarly have actual of oil . the literally If read and not in con- under the every land of other statute, signatory to text with the some entire agreement. the Accordingly, each and ev- it wording might appear make that one ery signatory would be in actual holding title, say, a tax for twenty-five of the oil of each and every other signatory years, thereon, who commences action in the “pool.” entire could be defeated a defendant having if a record interest in the could show claim possession Viele’s of is not possession, that he had even for a brief Chevron, virtue of purported lease to time, within prior the four next but stems from Chevron’s role as operator, the commencement action. We chosen as such under the pool- terms of the believe legislation the had in mind ing agreement. a four- Although Miller & Viele’s year statute claim barring represented adjunct of limitations claims les- against titles, tax sor-lessee four-year relationship which it period has with Chevron wherein it that the title, dated from the claims the initiation of lessor, lessee is that of the such is of no period any which claimant significance here because its claim would the tax title had possession must have of Conoco, the same if Gulf orOil or one of the the property protect any claim he signatories other had been designated as might interpretation have. Any “operator,” the “op- since it is through the square general does not the nature erator” authority who has to claim field act, and purpose of and could lead to is claimed. and, believe, results, novel we unintended purpose so as to entire defeat of a establishing said Section 29 as designed statute that to be seems to set- drilling a limiting unit and single to a tle, confuse, certain, not to make not well, subsequent and the Communitization uncertain, statutory titles liqui- Agreement, based no authority oper- vested in the dation of tax charges. ator under pool agreement to enter right the lands of the thereto. to an operator to “tap the pool” with any concept well, of negates solitary That fact off-set from all of the own- place erships Section, oil in under the lands within the of owned save one. signatories by any controlled sort of Miller & Viele cites a case with approval control, operator or that remote could espouses the foregoing conclusions enter their lands to extract oil. and which is actually authority support so, trespass- if he did he would be a of Dye contention. also relies on that Also, concept er. such offends the doc- which, case in distinguishing rights of own- pedis possessio, application trine of circumstances, ers in similar states as fol- generally regarded necessary which is lows: satisfy interpretation the definition and . whereas drilling pro- phrase possession.” “actual duction of oil from a unitized area consti- Preliminary to the citation of author- tutes an exercise and user of mineral ity support meaning rights in direct of the limited throughout the entire unit op- possession,” “actual type posses- erates as a performance substitute for suitably sion is illustrated our adverse obligations contained a mineral lease, and ease law possession statute3 which re- these acts are regarded not to be ordinary understanding flect the of “actual an eviction of the surface posses- owner’s possession” calling payment for the of tax- sion of the minerals or of his exclusive es, cultivation, improvements, fencing, right use thereto when the explorations are soil, labor, products annual conducted on the land itself. *5 and the like. Such reflect circumstances A leading rejects case which occupancy pertinent actual and are to the possession Viele’s claim of actual remote pedis possessio concept cited in Churchill v. control and adheres to the applica limited Onderdonk,4 it wherein is stated: possession tion actual is the case of Phil possession’ legal phrase, ‘Actual is a Peterson,7 lips v. and our own case of Peter put opposition in phrase, Callister,8 son v. points also out that law,’ ‘possession in pos- or ‘constructive title statutes are those of repose. In fur possession session.’ Actual is the same as ther support Dye’s position is the case of pedis possessio pedis positio, and these Pan American v. Candelaria9 which holds land, mean a on the foothold an actual operator, that an such as Chevron fact, entry, a possession standing in operating an off-set pool well under a it, it, real, occupation aas agreement, possession cannot claim of prop

demonstrative act done. is the con- erty beyond that which the well is law, trary of a in which fol- situated. lows in the wake of title. authorities, very application principle of the same relies, which Miller require & Viele also illustrated the decision of this Court that a derogation claimant in of a tax title in Kanawha v. Carbon.5 The concept of must have had actual a desig- at possession simply actual does not conform nated time in order to defeat such title. to the facts of this case where the oil is The fact that require those statutes actual drained from the lands of the to support a successful title chal- “pool” agreement consisting of 640 lenge is significant the most proscription by many, only delegated thereof, acres owned with assertion, e., time of i. “unless U.C.A., 1953, (10th 3. 1954), 78-12-12. 7. 218 F.2d 926 Cir. mentioned in Myers I, Pooling,” 13.02(2), “Law of Vol. Sec. (1874). p. 4. 439. 59 N.Y. 134 Utah, (1975). Supra, 535 P.2d 8. footnote 2. Co., Liberty 6. Dixon v. American La. (10th Oil 1968). 9. 403 F.2d 351 Cir. (1954). 77 So.2d 533 exercise dominion, been as much control pos- . (4) prior within in- e., four session of in controversy, i. . terposition . rights, the mineral as possibly could be .being of no if consequence actual done. It seems to me such circum- light is not first established. In stances where doing defendant was every- Viele’s concession its thing permit the law would regard possession” claimed “actual is derived from occupying it is unfair and un- the pooling agreement and Chevron’s au- just to hold that its interest therein is ad- (an thority operator position untenable versely affected because it did not do some- above), even outlined if Miller & Viele thing impossible which was in regard to designated the operator, itself had been being in actual property. its claim the statutes would be de- Consequent said, what I have feated. whatever interest protect had to in the We affirm decision of the trial judge, claimed mineral rights, the defendant doing reaffirm holdings in so should be deemed to have been in actual Peterson v. Callister and Hansen v. Morr possession thereof. Dye. is.10 Costs to J.,

ELLETT, and MAUGHAN and C.

WILKINS, JJ., concur.

CROCKETT, (dissenting): Justice agree position

I am unable trial court taken and affirmed GRAMME, R. Denise Plaintiff that: opinion our main Respondent, correctly court The trial determined Viele that Miller had not v. possession any time the four years GRAMME, Andre Defendant tax deed. following the it is *6 Appellant. clear from the facts that abundantly No. 15420. possession. has never been [Emphasis original.] Supreme Court of Utah. quoted appears statement to be based Nov. 1978. proposition that the defendant had physically sitting in or upon its Rehearing 18, 1979. Denied Jan. one-half mineral interest is, deep the oil below the surface. The controversy involved here does not fit into

the usual pattern cases, of tax title wherein requires

Section 78-12-5.1 the owner to be

in actual possession within four to assert his claim of ownership.

In the situation, instant the defendant

asserts no claim the rights surface involved;

land and therefore could not be in

actual occupancy of the surface of the prop-

erty contemplated in the usual sense.

But the important fact is pool-

ing arrangement with Chevron Oil Compa-

ny oil, the defendant did Supra, footnote 2.