AGO 95-L-044.

• Case Date: February 13, 1995
• Court: North Dakota

North Dakota Attorney General Opinions 1995. AGO 95-L-044. LETTER OPINION 95-L-44February 13, 1995Mr. Charles JohnsonCommission Counsel Public Service Commission State Capitol600 East Boulevard Avenue Bismarck, ND 58505-0480 Dear Mr. Johnson: Thank you for your letter asking whether N.D.C.C. ch. 38-18.1 is self-executing, or whether the surface owner, to take title to the severed mineral estate, must obtain a court judgment? If the terms of N.D.C.C. ch. 38-18.1 are met, title to the minerals passes to the surface owner. The surface owner may want to confirm title in a judicial action, but such action is not required. There are three reasons for this conclusion: the terms of ch. 38-18.1 itself, its legislative history, and case law. N.D.C.C. ch. 38-18.1 describes a mechanism by which ownership of severed minerals -- minerals owned by one other than the owner of the surface estate -- can be transferred to the owner of the surface estate. The chapter provides that if minerals are "unused" for twenty years, they are "deemed to be abandoned," unless a mineral owner files a "statement of claim." N.D.C.C. § 38-18.1-02. Upon abandonment, title "vests" in the owner of the surface estate. Id. Actions constituting the "use" of minerals are described, as are the requirements for a proper statement of claim. N.D.C.C. §§ 38-18.1-03, 38-18.1-04. The operative language regarding ownership is in section 38-18.1-02: "Title to the abandoned mineral interest vests in the owner or owners of the surface estate in the land in or under which the mineral interest is located on the date of abandonment." The Legislature's choice of the word "abandoned" is significant, for it typically means the absolute loss of ownership. To have abandoned property is to have lost "all right, title, claim, and possession" to it. Doughman v. Long, 536 N.E.2d 394, 399 (Ohio Ct. App. 1987); Commonwealth v. Carter, 344 A.2d 899, 902 (Pa. Super. Ct. 1975). The Legislature's use of the word "vests" is also significant. Generally, it is defined as recognizing a fixed property right. "The standard definition of 'vest' is 'To give an immediate fixed right of present or future enjoyment.'" State v. Zupnik, 111 N.E.2d 42, 43 (Ohio 1952) (citation omitted). "'Vested' ordinarily means 'Fixed; accrued; settled; absolute.'" Robbins v. Robbins, 463 S.W.2d 876, 879 (Mo. 1971) (citing...