In re Petition of Doering

In re Petition of Doering  (94-362); 165 Vt 603; 686 A.2d 101

[Opinion Filed 26-Aug-1996]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 94-362

                              JUNE TERM, 1996


In re Petition of Doering            }     APPEALED FROM:
                                     }
                                     }
                                     }     Windsor Superior Court
                                     }
                                     }
                                     }      DOCKET NO. S135-91WrCa


       In the above-entitled cause, the Clerk will enter:

       Henry and Carolyn Doering appeal from a judgment of the Windsor
  Superior Court, arguing that the court erred in concluding that William
  Tabor, Jane Tabor Taylor and Marie Tabor Wortman, heirs to the estate of
  Rolla Bugbee, own a fee simple interest in metals and minerals underlying
  property owned by the Doerings.  We affirm.

       The Doerings first became aware that subsurface mineral rights had
  been severed when they purchased their property in 1964.  Their deed stated
  that the "premises are subject to the exception and reservation of mineral
  and metal rights and right of way as described in a deed from Rolla G.
  Bugbee to Nora S. Booth dated May 10, 1899."  The relevant portion of the
  Bugbee deed reads as follows:

     The farm whereon my father the late George H. Bugbee
     lived for many years and at time of his decease containing one
     hundred and sixty (160) acres of land more or less lying on both
     sides of the highway leading from Bridgewater Centre to Barnard;
     being all and the same premises which Russell N. Wood and wife
     conveyed to said George H. Bugbee by deed dated November 11,
     1857 and recorded in Book 16 Page 477 of Land Records of said
     Bridgewater to which I refer excepting and reserving to myself and
     my heirs and assigns forever all minerals and metals and the
     perpetual right without payment of damages or otherwise to
     prospect for, mine and take soapstone, talc, quartz and all other
     minerals and metals and to haul, team, dig and do as and whatever
     is necessary and convenient for that purpose at any and all times
     on and in all of said premises which are on the Westerly side of
     said highway except on the house-lot of about one acre as the same
     is now enclosed by fence whereon are the house and sheds; across
     said house-lot I reserve to myself, my heirs and assigns forever a
     right of way as and where it is now traveled but no other
     privileges or rights.  No rights of any kind are reserved on land
     Easterly of said highway.

  (Emphasis added.)

  

       Rolla Bugbee died intestate.  When his estate was probated, the
  probate court held that Bugbee's heirs owned in fee simple the mineral
  rights on the Doering property.  The Doerings appealed from that decision
  to the Windsor Superior Court, claiming that they had acquired title to the
  minerals through adverse possession, or, in the alternative, that Bugbee's
  heirs had abandoned their interest in the minerals.  After a de novo trial,
  the superior court affirmed the decision of the probate court.

                                     I.

       The Doerings first claim that the heirs do not hold a fee simple
  interest in the minerals themselves, but instead hold only the intangible
  right to prospect or mine for minerals.  The Doerings further contend that
  this intangible right has been abandoned.

       It is long settled in Vermont that minerals and mining rights can be
  severed from a property to "form a distinct possession and different
  inheritances from the surface."  Jones v. Vermont Asbestos Corp., 108 Vt.
  79, 105, 182 A. 291, 303 (1936).  The language of the Bugbee deed clearly
  evinces an intent to sever the minerals and mining rights from the property
  conveyed.  As the above excerpt from the deed reveals, the grantor used
  language of reservation and inheritance to sever and retain the minerals,
  metals and mining rights for himself and his "heirs and assigns forever." 
  See Okemo Mountain, Inc. v. Town of Ludlow, ___ Vt. ___, ___, 671 A.2d 1263, 1267 (1995) (when construing deed, we look to language of
  instrument); see also Sheldon Slate v. Kurjiaka, 124 Vt. 261, 267-268, 204 A.2d 99, 104 (1964) (clear from language of deed that grantor intended to
  retain title in fee to minerals and quarry rights). Looking to the language
  of the deed, there is no doubt that Bugbee retained a fee interest in the
  minerals, which has now passed to his heirs.

                                     II.

       The Doerings next claim that the heirs have lost their fee interest in
  the minerals and mining rights through abandonment or adverse possession. 
  We first note that generally an interest in real property cannot be
  abandoned.  Martinez v. Continental Enters., 730 P.2d 308, 315 n.9 (Colo.
  1986).  Rather, a fee owner can be divested of title only through adverse
  possession.  Id.  Moreover, where there is severance of a mineral estate
  from the surface estate, mere occupancy of the surface is insufficient to
  establish title to the minerals by adverse possession.  Schaneman v.
  Wright, 470 N.W.2d 566, 577 (Neb. 1991); see also Dearing v. Oklahoma ex
  rel. Comm'rs of Land Office, 808 P.2d 661, 668 (Okla. 1991) (severed
  minerals can be held adversely only by removal from  land).  Here, the
  Doerings have made no attempt to mine or otherwise remove the minerals;
  thus, their adverse possession argument must fail.

     Indeed,

     [o]ur well recognized rule is that a possession that will
     work an ouster of the owner must be open, notorious, hostile and
     continuous for the full statutory period of fifteen years.  The tenant
     must unfurl his flag on the land, and keep it flying so that the
     owner may see, if he will, that an enemy has invaded his
     dominions and planted his standard of conquest.

  Deyrup v. Schmitt, 132 Vt. 423, 424, 321 A.2d 42, 43 (1974) (citations
  omitted).  The Doerings own title to the surface; thus, their use and
  occupancy of the property is neither hostile nor

 

  adverse to the heirs' interest, and gives no notice of an "invasion"
  of the subsurface dominion.

                                    III.

       In addition to severing the mineral rights, the Bugbee deed reserved a
  right-of-way across the house lot.  The Doerings claim that they have
  extinguished the right-of-way through adverse possession, or, in the
  alternative, that it has been abandoned.  Essentially, the Doerings argue
  that because the right-of-way provides access to the mineral deposits, its
  extinction, in combination with their surface occupancy, is adequate to
  allow them to acquire title to the minerals through adverse possession.

       As noted above, surface occupancy is insufficient to establish adverse
  possession of subsurface minerals.  Control of the right-of-way is simply
  an incident of surface occupancy. Furthermore, there is no authority for
  the proposition that a landowner can acquire title to another's property by
  extinguishing a right of way that provides access to it.  Thus, even if the
  Doerings could cut off access to the minerals, it does not follow that they
  would thereby obtain title and divest the heirs.

       Moreover, the Doerings cannot deny the heirs access to the mineral
  deposits because a severed mineral estate carries with it an implied right
  of access.  See Akers v. Baldwin, 736 S.W.2d 294, 304 (Ky. 1987) (owner of
  mineral rights may use surface to acquire minerals lying thereunder;
  Heikkila v. Carver, 416, N.W.2d 593, 596 (S.D. 1987) (mineral owner has
  right to enter and make reasonable use of surface for exploration and
  development of mineral deposit). Nor does the fact that they have been
  paying taxes on both the surface and subsurface estates aid the Doerings
  position; although payment of taxes is evidence of a claim of right, it is 
  not an act of possession.  Deyrup, 132 Vt. at 427, 321 A.2d  at 45. 
  Furthermore, we  agree with the trial court that the placement of a lien
  against the mineral deposits by a prior heir was an exercise of property
  rights, rather than evidence of abandonment.

       Affirmed.


     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice