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Rice v. Bixler

Supreme Court of Nebraska

October 3, 2014

LARRY L. RICE, APPELLANT AND CROSS-APPELLEE,
v.
JOE K. BIXLER AND BONNNNIE L. BIXLER SZIDON, APPELLEES AND CROSS-APPELLANTS, AND DONALD M. MCDOWELL ET AL., APPELLEES

Page 566

[Copyrighted Material Omitted]

Page 567

Appeal from the District Court for Sioux County: TRAVIS P. O'GORMAN, Judge.

Daniel H. Skavdahl, of Skavdahl, Edmund & Stecher Law Offices, for appellant.

John F. Simmons, of Simmons Olsen Law Firm, P.C., for appellees.

WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. Heavican, C.J., not participating.

OPINION

Page 568

[289 Neb. 195] Wright, J.

NATURE OF CASE

The surface owner of various tracts of land in Sioux County, Nebraska, sued the alleged owners of the severed mineral interests in those tracts under Nebraska's " dormant mineral statutes," Neb. Rev. Stat. § § 57-228 to 57-231 (Reissue 2010).

All of the alleged mineral owners involved in this appeal filed verified claims to the mineral interests prior to the action commenced by the surface owner. Both sides moved for summary judgment. The district court determined that the alleged mineral owners had either strictly complied or substantially complied with the requirements of § 57-229 to exercise publicly the right of ownership of the severed mineral interests. It concluded the alleged mineral owners had not forfeited their mineral interests, except for one of the claims. It found that such claim failed

Page 569

to reference the source of the deed or other instrument under which the mineral interests were claimed. The surface owner appeals, and two of the alleged mineral owners cross-appeal as to the mineral interests that were terminated.

SCOPE OF REVIEW

On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court. Gibbs Cattle Co. v. Bixler, 285 Neb. 952, 831 N.W.2d 696 (2013).

In reviewing a summary judgment, an appellant court views the evidence in the light most favorable to the party [289 Neb. 196] against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 (2012).

Statutory interpretation presents a question of law. Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).

FACTS

Larry L. Rice is the surface owner of the land in question. He claims that the alleged owners of the severed mineral interests named herein have abandoned their interests, because they did not comply with the requirements of § 57-229. Prior to the time this action was commenced, Joe K. Bixler; Bonnie L. Bixler Szidon; Charles Albert Cunningham, Jr.; Richard Bixler Cunningham; John H. McDowell; and Donald M. McDowell (defendants) filed verified claims to the severed mineral interests of the real estate owned by Rice.

Some, but not all, of the mineral interests in question were owned by Delia Bixler during her lifetime. She died intestate, and her heirs at law were John Bixler and Charles Bixler, her sons; LaVerna Reardon and Joan Cunningham, her daughters; and John McDowell and Donald McDowell, her grandsons. A final decree entered in the county court for Sioux County transferred all of her mineral interests to her heirs.

Joe Bixler and Bonnie Bixler Szidon received their mineral interests from Charles Bixler and his wife by two recorded deeds. Joe Bixler and Bonnie Bixler Szidon filed two verified claims on January 26, 2011, one for a small interest and one for a large interest. The smaller of the two claims was filed in the office of the Sioux County clerk/register of deeds in " Book A-61 of Miscell[aneous,] Page 635." The larger claim was filed in " Book A-61 of Miscell[aneous,] Page 634." Both verified claims describe the land and the nature of the interest claimed, provide the claimants' names and addresses, and state that they claimed the interest and do not intend to abandon it.

The smaller interest of Joe Bixler and Bonnie Bixler Szidon's claim includes a statement that the " interest is based on a Mineral Deed issued 13 August 1981 (BOOK A-15 Page [289 Neb. 197] 66)." The larger interest does not include this language and does not cite to any document that identifies the deed or other instrument under which the interest was claimed.

Charles Cunningham and Richard Cunningham are the heirs of the estate of Joan Cunningham, whose will was admitted to probate July 29, 1993, in Mobile County, Alabama.

Richard Cunningham filed a verified claim in the office of the Sioux County clerk/register of deeds on January 31, 2011, in " ...


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