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Capps v. Weflen

Supreme Court of North Dakota

October 31, 2014

Patricia R. Capps, f/k/a Patricia Anderson, Terrel A. Anderson, a/k/a Terral Anderson, Plaintiffs, Appellants and Cross-Appellees and the Estate of Ruth A. Nelson, Deceased, Plaintiff and Appellee
v.
Colleen L. Weflen, a/k/a Colleen Weflen, a single woman, Marleen Weflen, f/k/a Marleen W. Tiedt, Sharon Kruse, a/k/a Sharon O. Kruse, f/k/a Sharon Weflen, a married woman dealing in her sole and separate property, Catherine Harris, f/k/a Cathy Gunderson, a single woman, Norris Weflen, a/k/a Norris L. Weflen, a single man, Windsor Bakken, LLC, a Delaware Limited Liability Company, Defendants, Appellees and Cross-Appellants and John H. Holt Oil Properties, Inc., Atomic Oil & Gas, a Colorado Limited Liability Company, Defendants and Gulfport Energy Corporation, EOG Resources, Inc., Whiting Oil and Gas Corporation, Defendants, Appellees and Cross-Appellants and Cade Oil and Gas, LLC, Gerald C. Wools, Penny Brinks, Michael Lee, Gwen Hassan, and Melissa Kellor, Defendants, Penny Brinks, Michael Lee, Gwen Hassan, and Melissa Kellor, Appellees

Page 638

[Copyrighted Material Omitted]

Page 639

Appeal from the District Court of Mountrail County, North Central Judicial District, the Honorable David W. Nelson, Judge.

Zachary E. Pelham (argued), Patrick W. Durick (on brief) and Benjamin W. Keup (on brief), Bismarck, N.D., for plaintiffs, appellants and cross-appellees.

Amy L. De Kok (argued), Lawrence Bender (on brief) and Jillian R. Rupnow (on brief), Bismarck, N.D., for defendants, appellees and cross-appellants EOG Resources, Inc.

Richard P. Olson (appeared), Andrew T. Forward (on brief) and Wanda L. Fischer (on brief), Minot, N.D., for defendants, appellees and cross-appellants Cathy Gunderson, Sharon Kruse, Colleen Weflen, Marleen Weflen and Norris Weflen.

Monte L. Rogneby (appeared), Bismarck, N.D., for defendants, appellees and cross-appellants Gulfport Energy Corporation and Windsor Bakken LLC.

David J. Smith (argued) and Tyler J. Malm (on brief), Bismarck, N.D., for defendants and appellees Penny Brinks, Michael Lee, Gwen Hassan, and Melissa Kellor.

Paul J. Forster (on brief), Bismarck, N.D., for defendant, appellee and cross-appellant Whiting Oil and Gas Corporation.

Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Benny A. Graff, S.J., Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice. The Honorable Benny A. Graff, S.J., sitting in place of Kapsner, J., disqualified.

OPINION

Page 640

Sandstrom, Justice.

[¶1] Patricia Capps and others (" Capps" ) appeal, and Colleen Weflen and others (" Weflens" ) cross-appeal, from a judgment quieting title to certain Mountrail County mineral interests in the Capps and the heirs of Ruth Nelson's estate (" Hassans" ). Because the district court erred as a matter of law in ruling the Weflens did not comply with the notice requirements in the abandoned mineral statutes, N.D.C.C. ch. 38-18.1, and because those requirements are constitutional, we reverse and remand for entry of judgment quieting title to the subject mineral interests in the Weflens.

I

[¶2] In 1975, Ruth Nelson conveyed the subject real property in Mountrail County to Olaf and Rose Weflen, reserving to herself one-half of the minerals in the property. The deed was recorded the same year. In 1979, Nelson granted to Patricia Capps and Terrel Anderson " an undivided 1/2 mineral interest" in the property, and the deed explained " [i]t is the intent hereof to transfer a 1/2 interest in and to the remaining minerals." Nelson died later in 1979, and this 1979 mineral deed was not recorded until 2009.

[¶3] The Weflens, who are the successors-in-interest to Olaf and Rose Weflen, currently own the subject property. On December 28, 2005, the Weflens published in the Mountrail County Promoter a notice of lapse of mineral interest dated November 29, 2005. Subsequent notices were published on January 4 and 11, 2006. On January 13, 2006, the Weflens sent copies of the notice of lapse by certified mail, return receipt requested, with restricted delivery to the two last known addresses of Nelson which appeared in the recorded 1975 deed, in Tacoma, Washington, and a recorded 1973 oil and gas lease, in Lyons, Oregon. Both mailings were returned undelivered, and no statement of claim was filed within 60 days after the first publication of the notice of lapse. On March 6, 2006, the Weflens recorded a termination of mineral interest, affidavit of publication, affidavit of mailing, and notice of lapse of mineral interest with the Mountrail County recorder.

[¶4] While on a North Dakota hunting trip in 2008, Patricia Capps' husband and her brother noticed oil wells in the area of the Weflens' property. Patricia Capps contacted an attorney and filed a statement of claim in 2008. In 2009, the Capps

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recorded the 1979 mineral deed and brought this action against the Weflens seeking to quiet title to their mineral interests. The estate of Ruth Nelson and the Hassans were eventually joined as parties. After a series of cross-motions for summary judgment, the district court ruled the Weflens had failed to comply with the notice requirements in the abandoned mineral statutes, N.D.C.C. ch. 38-18.1, and therefore they had no claim to a one-half mineral interest reserved by Nelson in 1975. Although other claims between the parties were unresolved, the court certified the judgment as final under N.D.R.Civ.P. 54(b), and the Weflens appealed. In Capps v. Weflen, 2013 ND 16, ¶ 1, 826 N.W.2d 605, this Court dismissed the appeal, concluding the district court abused its discretion in directing entry of a final judgment. The major remaining issue before the court, a dispute between the Capps and the Hassans, was whether Nelson's 1979 deed to the Capps conveyed all of the mineral interests held by Nelson or only one-half of her remaining one-half interest. On cross-motions for summary judgment, the court ruled as a matter of law the 1979 deed conveyed only one-half of Nelson's one-half interest in the minerals to the Capps, and the Hassans owned the other one-quarter interest reserved by Nelson in the deed.

[¶5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal and cross-appeals were timely under N.D.R.App.P. 4. We have jurisdiction under N.D. Const. ...


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