Opinion
No. 75-560
Decided April 29, 1976. Rehearing denied May 27, 1976. Certiorari granted July 19, 1976.
Action to quiet title to certain non-coal mineral interests. From adverse trial court result, plaintiff appealed.
Affirmed
1. MINES AND MINERALS — Tax Deeds — Convey — Only Separate Assessed Rights. Although plaintiff's tax deeds based on an erroneous assessment of certain severed mineral interests, purport to convey to him interests in all the mineral rights at issue, nevertheless, the recorded chain of title shows ownership of non-coal mineral rights to be in certain defendants or others, and thus the tax deeds do not convey to plaintiff any mineral rights other than those that were separately subjected to lawful assessment, that is, the coal rights only.
2. "Vacant Land" Statute — Applicable — Surface Occupancy Only. The statute providing for acquisition of vacant land by virtue of payment of all taxes for seven successive years focuses only on surface occupancy and does not pertain to severed mineral interests, and its applicability is dependent upon there being no one in possession of the surface which would give notice of a potential adverse claim to the surface or fee estate.
3. QUIETING TITLE — Plaintiff — No Interest in Property — Cannot Question — — Others Title — No Legally Cognizable Interest — Resolution of Dispute. If plaintiff has no interest in the property, he cannot question the legality of the title claimed by others in the action; thus, once plaintiff failed to establish his own title to disputed mineral interests, he had no further legally cognizable interest in the resolution of the controversy, even if he were capable of demonstrating that title is actually vested in a third party.
Appeal from the District Court of Weld County, Honorable Hugh H. Arnold, Judge.
Dawson, Nagel, Sherman Howard, Theodore E. Worcester, Edward W. Nottingham, Susan D. Proctor, for plaintiff-appellant.
Southard Ashlock, Lawrence Ashlock, for defendants-appellees T. S. Pace, Thomas H. Connelly William K. Warren Foundation.
Poulson, Odell Peterson, Peter A. Bjork, for defendants-appellees Gen Oil Inc., Energy Minerals Corporation, Amoco Production Company Jonquil Oil Corporation.
Schultz, Bate Astrella, Richard H. Bate, for defendant-appellee Martin Oil Service.
Division III.
Plaintiff, Kenneth Webermeier, appeals from entry of an order by the trial court which (1) granted summary judgment in favor of non-defaulting defendants in plaintiff's action to quiet title to certain severed mineral rights and (2) dismissed those defendants' counterclaims without prejudice. We affirm.
The dispute before the trial court was whether plaintiff had an interest in all minerals in certain real property, or whether his interests were confined to ownership rights in coal. He asserted that tax deeds purporting to convey to him all mineral rights in the tracts were sufficient to warrant quieting title in him. In the alternative, he grounded his claim of ownership on C.R.S. 1963, 118-7-9, the seven-year statute of limitations based on payment of taxes under color of title as to vacant and unoccupied land. See § 38-41-109, C.R.S. 1973. Defendants denied that plaintiff had any interest in non-coal minerals and counterclaimed to quiet title in themselves, based on conveyances from the record owners of those interests. Both sides moved for summary judgment. The trial court denied plaintiff's motion and granted defendant's motion dismissing plaintiff's complaint as to minerals other than coal and quieting title to the coal in plaintiff. The trial court also permitted the voluntary dismissal without prejudice to defendants' counterclaim.
I.
Plaintiff's claimed ownership of the subject mineral rights is based primarily on three tax deeds. Two of the deeds purported to convey to plaintiff all or an undivided fractional share of all minerals within the parcels, while the third conveyed an undivided half ownership in coal underlying one of the tracts. It was undisputed that plaintiff's predecessors, whose interests had been foreclosed and sold for delinquent taxes in 1959, had ownership rights in coal only, although for reasons unexplained in the record those parties had been erroneously assessed as owners of all mineral rights beginning in 1955. Prior to this change in assessment, plaintiff's predecessors had been assessed only as to coal; the record owners of the non-coal mineral interests have never had their interests subjected to separate tax assessment, and were not notified of the erroneous assessment or of the 1959 tax sale. An abstract of title before the trial court established that defendants' claims to the non-coal interests were based on recorded conveyances from the record owners thereof, which interests originated out of an earlier reservation of those rights that severed ownership of the coal from the other mineral interests, and from title to the surface rights.
Even though the recorded chain of title shows ownership of non-coal mineral rights to be in certain defendants or others, plaintiff nonetheless argues that the tax deeds purporting to convey to him interests in all mineral rights vested him with title to all of the mineral interests in question, and thus, contends that the trial court erred in failing to quiet title to the rights in him. We disagree.
[1] The basis for plaintiff's argument is the assertion that a tax deed founded on an erroneous assessment of severed mineral interests passes title to the entire interest assessed despite the complete absence of record title in the party against whom the taxes were assessed. The law is to the contrary. It is well settled that such tax deeds do not convey to the grantee any mineral rights other than those that were separately subjected to lawful assessment. Mitchell v. Espinosa, 125 Colo. 267, 243 P.2d 412. See also Upper Harmony Ditch Co. v. Carwin, 189 Colo. 190, 539 P.2d 1282; Johnson v. McLaughlin, 125 Colo. 298, 242 P.2d 812. Since the severed non-coal mineral rights were only tardily assessed, in the name of strangers to the chain of title, no valid assessment of those rights was ever made here. See Jacobs v. Perry, 135 Colo. 550, 313 P.2d 1008. For us to hold that this procedure sufficed to wrest title to non-coal minerals from the grasp of the record owners would be to directly contravene established authority that the grantee of a tax deed secures title to no more than that owned by the grantee's predecessor in title. Gilpin Investment Co. v. Perigo Mines Co., 161 Colo. 252, 421 P.2d 477. Thus, we hold that the trial court properly concluded that plaintiff had no claim to non-coal mineral interests in the subject property by virtue of the tax deeds alone.
II.
Plaintiff also argues that the trial court erred in granting summary judgment to defendants because plaintiff's title should be established by application of C.R.S. 1963, 118-7-9, which states as follows:
"Whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his or her paper title."
See also § 38-41-109, C.R.S. 1973. He contends that he had shown compliance with all of the elements required by this statute sufficient to establish title to the mineral interests purportedly conveyed by the tax deeds.
This statute, however, must be considered in relation to C.R.S. 1963, 118-7-8. See also § 38-41-108, C.R.S. 1973. That statute provides that one who is in "actual possession of lands or tenements" under a good faith claim of title and who pays taxes thereon for seven years is to be adjudged the owner of the land "to the extent and according to the purport of his or her paper title."
[2] Upon an examination of the language of these two statutes, we find that the "vacant lands statute," C.R.S. 1963, 118-7-9, focuses only on surface occupancy and does not pertain to severed mineral interests, i.e., its applicability is dependent upon there being no one in possession of the surface which would give notice of a potential adverse claim to the surface or fee estate. See Wright v. Yust, 118 Colo. 449, 195 P.2d 951; Towner v. Schaffnit, 59 Colo. 242, 149 P. 625. See also Newsom v. DeFord, 25 Colo. App. 582, 140 P. 207. It is not designed to cover situations where, as here, the surface is neither vacant nor unoccupied, and the dispute pertains merely to severed mineral rights which one party asserts are "vacant and unoccupied" due to non-exploitation. In contrast, the "actual possession" statute, C.R.S. 1963, 118-7-8, applies to all "lands or tenements" possessed, and has been applied as the pertinent statute in situations where title to severed mineral interests is sought to be quieted on the basis of adverse possession. See Radke v. Union Pacific R.R. Co., 138 Colo. 189, 334 P.2d 1077; Calvat v. Juhan, 119 Colo. 561, 206 P.2d 600. Furthermore, the history of these two statutes is also consistent with the conclusion that the present "vacant lands" statute has no applicability to disputes concerning title to severed mineral rights, and only governs actions concerning fee or surface ownership. Compare Mills Annot. Stat. 1883, §§ 2923 and 2924 with C.R.S. 1963, 118-7-8 and 118-7-9. See also Ballard v. Golob, 34 Colo. 417, 83 P. 376; Empire Ranch Cattle Co. v. Howell, 22 Colo. App. 584, 126 P. 1096.
Therefore, we hold that plaintiff's claim of title to the severed mineral interests may not be premised upon the "vacant lands" statute, C.R.S. 1963, 118-7-9. Since it is undisputed that plaintiff was not in possession of the mineral estate, plaintiff may not rely on C.R.S. 1963, 118-7-8, either, to support his assertion of title. Hence, the trial court acted properly in refusing to quiet title in plaintiff and in entering summary judgment for defendants.
While it may be argued that Catlin Coal Co. v. Lloyd, 176 Ill. 275, 52 N.E. 144, which interpreted a statute similar to C.R.S. 1963, 118-7-8, states a contrary conclusion, that case has no bearing here since the Illinois courts have also imposed a prerequisite of actual possession for invocation of the Illinois "vacant lands" provision. See Slatin's Properties, Inc. v. Hassler, 53 Ill. 2d 325, 291 N.E.2d 641. See also Thatcher v. Gottlieb, 59 F. 872 (8th Cir.).
III.
Plaintiff's final allegation of error is addressed to the trial court's dismissal, without prejudice, of counterclaims of title asserted by certain defendants. It is plaintiff's contention that defendants should have been forced to litigate to finality title to non-coal mineral interests despite the trial court's determination that plaintiff had no valid claim to these interests. In this regard, plaintiff argues that even though C.R.C.P. 41(a)(2) accords the trial court great discretion in permitting voluntary dismissal without prejudice, permitting defendants to withdraw their counterclaims in this case constituted a clear abuse of discretion. We do not agree.
The trial court's concern in this regard was the effect that a reversal of its summary judgment would have on defendants' own claims to title. The defendants all joined in a stipulation as to their respective rights in the non-coal mineral estate, and were prepared to incorporate the stipulation into the decree of the trial court quieting title to coal in plaintiff. The utilization of C.R.C.P. 54(b) was also contemplated by defendants and the court as a procedure for protecting the rights of the defendants. Plaintiff opposed each of these alternatives, however, in effect demanding that defendants establish their respective interests, if any, within the context of plaintiff's quiet title action. This the plaintiff had no right to do.
[3] Once the trial court determined that the plaintiff had no interest in the property, plaintiff was in no position to question the legality of the title claimed by others in the action; in such actions the plaintiff must rely on the strength of his own title, not on the supposed weakness of that of his adversaries. School District No. Six. v. Russell, 156 Colo. 75, 396 P.2d 929; Goodrich v. Union Oil Co., 85 Colo. 218, 274 P.2d 935. This rule was not modified by the adoption of C.R.C.P. 105. Fastenau v. Engel, 129 Colo. 440, 270 P.2d 1019.
Thus, once plaintiff failed to establish his own title he had no further legally cognizable interest in the resolution of the controversy even if he were capable of demonstrating that title is actually vested in a third person. See Empire Ranch Cattle Co. v. Bender, 49 Colo. 522, 113 P. 494. Even though certain of defendants' predecessors in title had conceded by default the absence of their own title in the mineral interests, plaintiff cannot utilize those defaults in order to force defendants to quiet title among themselves to plaintiff's satisfaction. The order of the trial court permitting dismissal without prejudice of defendants' counterclaims was therefore not an abuse of discretion.
Judgment affirmed.
JUDGE SMITH and JUDGE BERMAN concur.