No. 85-119 

TN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

LEE McDOWkLD 

Plaintiff, C.ross-Defendant 

and Appellant, 

UNIREX, LNC., 

Defendamt, Cross-Claimant 

And Respondent, 

and 

EXETER EXPLOPATION CO., McALESTER FUEL 

COMPANY, and WESTERN CRUDE OIL, INC., 

Defendants. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lee McDonald, pro se, Denver, Colorado 

For Respondent: 

Crowley, Haughey, Hanson, Toole & Dietrich; Norman 

Hanson, Bill-ings, Montana 

Submitted on Briefs: Dec. 3, 1985 

Decided: April 22, 1986 

APR 22 1986 

Filed: 

*, 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The District Court for the Fourteenth Judicial District, 

Musselshell County, entered a partial final judgment that Mr. 

McDonald's tax deed to a certain mineral reservation right of 

entry did not give him any interest in oil or gas or minerals 

under the land. Mr. McDona.ld appeals. We affirm. 

The defendants hold a 45/562.24 interest in. the mineral 

rights underlying certain real property in Musselshell County. Their mineral reservation right of entry wa.s assessed 

and taxed by the county or the year 1975, under former 

S 84-301, RCM (1947) (now repealed.). The taxes were unpaid. 

Mr. McDonald obtained the tax deed to the right of entry, 

together with a certificate of title. 

Mr. McDonald claims that his right of entry interest by 

virtue of the tax deed includes the oil and gas under the 

land and produced from the land. He brought this action to 

have title to the oil and gas under the land quieted in him 

and to recover for oil a.nd gas that had been produced from 

the land. Defendant Unirex moved for partial summary judgment on the issue of whether the right of entry gave Mr. 

McDonald any interest in the underlying mineral rights. 

After submission of briefs and a hearing, the District Court 

issued a partial final judgment that it did not. The issue 

was properly certified under Rule 54(b), M.R.Civ.P. 

Mr. McDonald's position is that his mineral reservation 

right of entry includes a right to the underlying oil and gas 

because of the language in S; 15-6-131, MCA (1979), a revision 

of S 84-301, RCM, which read in part: 

Class one property - description - taxable percentage. (1) Class one property 

includes: 

(a) the right of entry that is a property 

right reserved in land or received by 
mesne conveyance (exclusive of leasehold 

interests) , devise, or succession to 

enter land whose surface title is held by 

another to explore, prospect, or dig for 

oil, ga.s, coal, or minerals; . . . 

He asserts that this section defined right of entry as including the right to explore, prospect, or dig for oil, gas, 

coal or minerals. He also contends that at the time mineral 

reservation rights of entry were first taxed in Montana, this 

state recognized the non-ownership or exclusive right theory 

with regard to minerals. He relies upon Northern Pac. Ry. 

Co. v. Musselshell County (19171, 54 Mont. 96, 169 P. 53, to 

support this contention. Under the non-ownership theory, 

mineral rights are a servient estate to the right to enter 

and explore upon the land. Therefore, he maintains, his 

mineral reservation right of entry includes the minerals 

under and produced from the land. He acknowledges that 

Montana has since adopted the ownership-in-place theory in 

regard to minerals, but maintains that the theory recognized 

at the time mineral reservation rights of entry were first 

taxed must be used to determine the nature and extent of his 

right of entry. 

Mr. McDonald's argument based on S 15-6-131, MCA (1979) 

is unpersuasi~~e. That statute listed property rights which 

were taxable as class one property. It did not purport to 

define mineral reservation rights of entry. Authority contrary to Mr. McDonald's position is found at § 70-17-101(5), 

MCA, which categorizes as easements the right of taking 

"water, wood, minerals, and other things." -- See also Cranston 

v. Musselshell County (1970), 156 Mont. 288, 292, 483 P.2d 

289, 291, discussing the "right of entry easement." 

We do not find authority in the case Mr. McDonald cited, 

Northern Pacific, that the non-ownership theory as to 

minerals-in-place was ever accepted in Montana. It is true 
that in that case, this Court referred to minerals-in-place 

as personal rather than real property. Northern Pacific, 169 

P. at 56. That classification, however, does not determine 

whether minerals can be owned in place. 1 Williams and 

Meyers, Oil and Gas Law 5 212 (1985) . In Northern Pacific, 

1.69 P. at 58, this Court also categorized a reservation of 

minerals-in-place as a corporeal hereditament and the right 

of entry as an incorporeal hereditament. That categorization 

is consistent with recognition of the ownership-in-place 

theory. 1 Williams and Meyers, Oil and Gas Law S 209 (1985). 

This Court has included in a list of "basic, 

well-established rules in the field of oil and gas conveyancing" the following: 1) Montana is an ownership-in-place 

state with regard to oil, gas, and other minerals; 2) title 

to the mineral interest in land may be separated from the 

rest of the fee simple title; 3) under a mineral deed conveyance, the grantee receives, among other incidents, the 

right to go upon the land and explore for and produce oil and 

gas. Stokes v. Tutvet (1958), 134 Mont. 250, 255, 328 P.2d 

1096, 1099. Montana has consistently adhered to the 

ownership-in-place theory. 1 Williams and Meyers, Oil and 

Gas Law, S 203.3 (1985). 

We conclude th.at in Montana a mineral reservation right 

of entry is an easement, and conveys no interest in the 

underlying oil, gas, or minerals, or in oil, gas, or minerals 

produced from the land. The District Court is affirmed. 
We concur: