Appeal from the District Court of Mountrail County, Northwest Judicial District, the Honorable Douglas L. Mattson, Judge.
The opinion of the court was delivered by: Sandstrom, Justice.
[¶1] Roger and Barbara Melchior appeal a district court's award of summary judgment to the Lystad family and their trustee, granting the trustee quiet title to mineral interests in land in Mountrail County. We affirm.
[¶2] In 1973, Walter and Edith Halvorson conveyed property to Kenneth and Hope Lystad. At the time, the Halvorsons owned a one-half interest in the oil and gas, as well as all of the gravel, in and under the land. The contract for deed stated that the Halvorsons reserved "an undivided one-half of the oil, gas and gravel in, on and under the above-described lands." The warranty deed, executed in 1983, contained the same provision. In 1996, the Halvorsons conveyed their mineral interests in the land to Roger and Barbara Melchior. In 2008, the Lystads conveyed their mineral interests in the land to the American Trust Center, as trustee of the Lystad Family Irrevocable Mineral Trust.
[¶3] In 2009, the Melchiors sought quiet title to one-fourth of the oil, gas, and gravel interests in, on, and under the land. The Lystads and their trustee filed an answer and counterclaim, seeking quiet title to an undivided one-half interest in the minerals in the name of the trustee. The Melchiors moved for summary judgment, arguing there were no disputed facts and they were entitled to judgment as a matter of law, because the 1973 contract for deed and the 1983 warranty deed were based on a mutual mistake of the parties. They claimed the parties intended for the Halvorsons to reserve one-half of the mineral interests owned by them and for the Lystads to receive the other one-half of the mineral interests owned by the Halvorsons.
[¶4] The district court granted summary judgment in favor of the Lystads and the trustee under the Duhig rule, concluding the Lystads received one-half of the total mineral interests, because the deed purported to deal with all of the mineral interests in the land. The district court granted the trustee quiet title to the mineral interests in the land, with the exception of a parcel that the Lystads had previously conveyed to a third party.
[¶5] The Melchiors appeal, arguing the district court erred in failing to reform the warranty deed on the basis of mutual mistake.
[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
[¶7] Under N.D.R.Civ.P. 56(c), summary judgment is appropriate "if either litigant is entitled to judgment as a matter of law and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes will not alter the result." Langer v. Pender, 2009 ND 51, ¶ 10, 764 N.W.2d 159 (quoting Duemeland v. Norback, 2003 ND 1, ¶ 8, 655 N.W.2d 76). Whether the district court properly granted a summary judgment motion "is a question of law that we review de novo on the record." Trinity Hosps. v. Mattson, 2006 ND 231, ¶ 10, 723 N.W.2d 684. "The degree of response required of a party opposing a motion for summary judgment is set by the scope of the motion." Zueger v. Carlson, 542 N.W.2d 92, 95 (N.D. 1996). Under N.D.R.Civ.P. 56(c), "[s]ummary judgment, when appropriate, may be rendered against the moving party." Here the issue of mutual mistake was fully joined and was directly before the district court. "When there has been a motion for summary judgment, but no cross-motion, the court already is engaged in determining if a genuine issue of material fact exists, the parties have been given an opportunity to present evidence to support or refute the request, and the weight of authority is that summary judgment may be rendered in favor of the party opposing the motion without a formal cross-motion." Trinity Health v. North Central Emergency Servs., 2003 ND 86, ¶ 13, 662 N.W.2d 280 (citing 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed. 1998)).
[¶8] In cases involving an over-conveyance of minerals, this Court has applied what is commonly called the Duhig rule. See Gawryluk v. Poynter, 2002 ND 205, ¶ 11, 654 N.W.2d 400; Miller v. Kloeckner, 1999 ND 190, ¶ 9, 600 N.W.2d 881; Acoma Oil Corp. v. Wilson, 471 N.W.2d 476 (N.D. 1991); Mau v. Schwan, 460 N.W.2d 131 (N.D. 1990); Sibert v. Kubas, 357 N.W.2d 495 (N.D. 1984); Kadrmas v. Sauvageau, 188 N.W.2d 753 (N.D. 1971). "The Duhig rule says that where a grantor conveys land in such a manner as to include 100% of the minerals, and then reserves to himself 50% of the minerals, the reservation is not operative where the grantor owns only 50% of the minerals. The deed is construed as undertaking the transfer of 50% of the minerals to the grantee. Both this grant and the reservation cannot be given effect, so the grantor loses because the risk of title loss is on him." Miller, at ¶ 9 (quoting 1 Patrick H. Martin & Bruce M. Kramer, Williams & Meyers Oil and Gas Law § 311, p. 580.39 (1998)). In Gawryluk v. Poynter, 2002 ND 205, 654 N.W.2d 400, this Court explained the history and rationale behind the Duhig rule:
In Duhig [v. Peavey-Moore Lumber Co.], 144 S.W.2d [878,] 878-79 [(Tex. 1940)], a third party owned an outstanding one-half mineral interest in certain land, and the grantor owned the surface and the remaining one-half mineral interest. The grantor conveyed the surface to the grantee by warranty deed but reserved one-half of all the minerals under the land. Id. The grantor and grantee both claimed the one-half mineral interest that was not owned by the third party. Id. at 879. The Texas Supreme Court concluded the grantee owned the surface and a one-half mineral interest, the third party owned the outstanding one-half mineral interest, and the grantor owned nothing. Id. at 880. In reaching that conclusion, the court employed a two-step analysis under principles of estoppel. Id. The court observed the grant clause gave the grantee all of the surface and a one-half mineral interest but the reservation clause reserved a one-half mineral interest in the grantor. Id. Because the grantor purported to retain a one-half mineral interest and the other one-half mineral interest was owned by a third party, ...