1 No . 114,507

IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

R ONALD N ICKELSON and B ETTY N ICKELSON ,

Appellants
,

v.

A LICE O LIVE B ELL , et al

. , Appellees

.

SYLLABUS BY THE COUR T

1. A mineral interest is an interest in real property.

2.
Absent certain exceptions, the property of a resident decedent, who dies intestate, shall at the time of death pass by intestate succession. K.S.A. 59

- 502.

3

. In all cases of intestate succession the property shall pass immediately from the decedent to the person entitl ed to receive it. K.S.A. 59

- 509.

4. An owner of an unused mineral interest, as the term is used in K.S.A. 55

- 1604, is one who has acquired the right to possess, use, and control the subject mineral interests.

5. A person who has acquired a mineral interest through intestate succession has the right to possess, use
, and control the subject mineral interests.2

6. A person who has acquired a mineral interest through intestate succession is not required to possess a de cree of descent obtained under K.S.A . 59

- 2251 prior to filing a claim under the mineral lapse statute.

Appeal from Graham District Court; P RESTON P RATT , judge. Opinion filed September 16 , 2016

. Affirmed

.

Ton y A. Potter , of Potter Law Office, P.A., of Hill City , for appellant s

.

Jill A. Elliott , of Elliott Law Office, P.A., of Hill City
, for appellee s

.

B efore A RNOLD

- B URGER , P.J., M C A NANY and G ARDNER , JJ.

A RNOLD

- B URGER , J. : Generally, any interest in mineral rights will lapse and revert to the surface owner of the property if it remains unused for 20 years. K.S.A.
55

- 1602. The owner of an unused mineral interest may prevent the lapse by filing a claim
as set out in K.S.A. 55

- 1604. When surface landowners Ronald and Betty Nickelson (Nickelsons) sought to quiet title to unused mineral righ ts on their land, several people
filed claims under K.S.A. 55

- 1604. Because some of these people maintained ownership through intestate succession, without any judicial determination regarding their acquisition of the mineral rights upon their ancestors' d eath (commonly referred to as a decree of descent), the Nic ke lsons asserted that these heirs were not owners of mineral rights as contemplated by the lapse statute. The district court disagreed, finding that one only need to be a person claiming to be an owner of the minerals to file a claim. It is then up to the court to "determine who owns the mineral interest that both parties claim to own
adver sely to the other." Because we agree that the intestate descendants in this case did not have to be in possess ion of a de cree of descent from the district court before filing their claim under the mineral lapse statute, we affirm.3 F ACTUAL AND P ROCEDURAL H ISTORY

The facts in this case are largely undisputed. Nic ke lsons own the surface rights and part of the mine ral rights to certain land in Graham County, Kansas. In November 2014, they filed an action to quiet title, alleging that the mineral interests owned by others had lapsed from disuse. Following our Kansas mineral lapse statute, Nic ke lsons published notice of the potential lapse in a local newspaper, and they attached that notice to their petition. Between the petition and notice, Nic ke lsons named roughly 20 people they believed to have a claim to the mineral rights at issue.

After the notice ran in the newspaper, many people filed claims to the lapsing
mineral interests. Nic ke lsons requested that the district court hold a hearing to determine what, if any, ownership interest these individuals actually held in the lapsing mineral rights. Meanwhile, severa l of these potential interest

- holders filed answers to the quiet title suit, reasserting that they owned the mineral rights at issue.

After a time, Nic ke lsons filed a motion for summary judgment against all but seven of the people who filed claims. For s implicity's sake, all of the individuals asserting claims will be collectively referred to as Defendants. In support of this motion,
Nic ke lsons claimed that Defendants provided no proof that they owned the subject mineral rights. Without any judicial de cre e of descent or a probate proceeding,
Nic ke lsons argued, Defendants showed only "some family or kinship to the actual owners
of the mineral interests."

Defendants replied to the motion by outlining precisely how the mineral rights descended from the orig inal owner to them. Highly summarized, this history revealed that although many of the interests stemmed from probate proceedings, several originated from individuals who died intestate. Defendants provided a number of exhibits documenting the history of t hese interests. In terms of those individuals with interests4

inherited through intestate succession (collectively the Intestate Descendants), Defendants argued that the mineral rights at issue passed directly from their previous
owners to the Intestate Des cendants, requiring no judicial determination of their rights.

Ultimately, the district court denied the Nic ke lsons' summary judgment motion and, after a hearing on the issue of ownership, determined that all the Defendants' claims
were valid. In its rul ing, the district court explicitly rejected the argument that the Intestate Descendants required a judicial de cree of descent in order to file a claim under the mineral lapse statute. Instead, the district court found that the purpose of the mineral lapse statute was served "by allowing anyone who claims ownership of the minerals to file a statement of claim, even if that person is not a record owner at the time the claim is filed." It is then up to the court to "determine who owns the mineral interest that both parties claim to own adversely to the other" as part of the quiet title action that must ultimately be filed. After calculating the fractional ownership interest of all involved parties, the district court quieted the title to the land. Nic ke lsons st ipulated that this calculation accurately reflected each individual's interest.

A NALYSIS

The sole issue on appeal concerns whether the Intestate Descendants constitute owners capable of filing a claim under our Kansas mineral lapse statute. This statute provides that any interest in mineral rights will lapse and revert to the surface owner if it remains unused for 20 years. K.S.A. 55

- 1602. That said, the owner of an unused interest may prevent the lapse by filing a claim providing "the name and address o f the owner . . . and a description of the land on or under which the mineral interest is located." K.S.A.
55

- 1604(a). If the owner files the claim before the 20

- year period expires, "it shall be considered that the mineral interest was being used on the d ate the statement of claim was
filed." K.S.A. 55

- 1604(a). However, even if the claim is not filed by the end of that5

period, the owner can prevent the lapse by filing a claim within 60 days of receiving either actual or publication notice of the potential lapse. K.S.A. 55

- 1604(b).

Here, neither party alleges any procedural failings under the statute. After all, the record clearly reflects that the Nic ke lsons properly published their notice, and no one disputes that the Defendants acted on this notice withi n 60 days. There is also no dispute, as verified in oral argument in this matter, that the ancestors of the Intestate Descendants owned mineral interests in the subject tract of land.

Instead, Nic ke lsons argue that the Intestate Descendants do not consti tute owners under the statute, rendering their claims invalid. They assert that in order to be owners
under the statute there must have been a decree of descent obtained by a court, memorializing their interests before their claim was filed, or at least before the 60

- day time limit for filing a claim expired. See K.S.A. 59

- 2250 and K.S.A. 59

- 2251 (procedure to obtain a decree of decent). And since they failed to take any action within the 60

- day time frame required by K.S.A. 55

- 1604(b), any action now wou ld make their claim untimely.

Interpretation of a statute is a question of law over which this court exercises
unlimited review. Neighbor v. Westar Ener g y, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015). The most fundamental rule when considering the const ruction of a statute is that the intent of the legislature controls. 301 Kan. at 918. Therefore, this court must first attempt to ascertain the legislature's intent through the statutory langue enacted, giving common words their ordinary meanings. Cady v. Schroll , 298 Kan. 731, 738, 317 P.3d 90 (2014). If the statute is plain and unambiguous, the appellate court should not speculate about the legislative intent and should refrain from reading something into the statute that is not readily found in its words . 298 Kan. at 738

- 39 . Only when the statute's language or text is unclear will the court employ canons of construction to construe the underlying
intent. 298 Kan. at 739.6

On appeal, Nic ke lsons emphasize the lack of a clear definition for the term owner in the statute. And, indeed, our Kansas mineral lapse statute provides no explicit definition of this term. A broader review of our Kansas oil and gas statutes reveals that in
the rare instances when owner is defined, it appears in a very specialized context. See,

e.g. , K.S.A. 2015 Supp. 55

- 1626(e) (defining "interest owner" for the purposes of the Petroleum Education and Marketing Act); K.S.A. 55

- 1302(e) (defining a specific type of owner for the purposes of unitization). Additionally, the single Kansas case concerning our mineral lapse statute, Scully v. Overall , 17 Kan. App. 2d 582, 840 P.2d 1211
, rev. denied 252 Kan. 1093 (1992), provides little guidance. There, the plaintiffs essentially argued that a mineral interest's owner needed to prove use when filin g his or her claim. But this court rejected that argument, holding that the purpose of the statute was served by the mineral owner simply filing the required claim. 17 Kan. App. 2d at 587. Adopting the analysis of a law professor specializing in oil and ga s, the court determined: "'If the mineral interest owner responds [to the notice of lapse], the interest is no longer forgotten, the name and address of the mineral interest owner is identified, the purposes of the Act are served.'" 17 Kan. App. 2d at 587 (quoting Pierce, July 1 is Deadline for Filing Claims to Preserve "Unused Mineral Interests," 25 Circuit Rider 6 , at 9 [Summer 1986]).

Turning to more general definitions, Black's Law Dictionary defines owner as "[s]omeone who has the right to possess, u se, and convey something; a person in whom one or more interests is vested." Black's Law Dictionary 1280 (10th ed. 2014). Similarly, the ordinary meaning of the term own is "to have or hold as property [or to] possess." Webster's Ninth New Collegiate Dicti onary 843 (9th ed. 1991). And when explaining the "doubleness of meaning" imbedded in the word ownership , Bryan Garner explains that "ownership . . . implies the right of control over an object, quite apart from any actual or
constructive control." Garner' s Dictionary of Legal Usage 649 (3d ed. 2011). Quoting from a treatise, he continues: "'While it is usual to speak of ownership of land , what one7

owns is properly not the land, but rather the rights of possession and approximately unlimited use, present or future.'" Garner's Dictionary of Legal Usage 649.

Nic ke lsons contend that, without some sort of judicial determination of their right s, Intestate Descendants never gained the right to possess, use, and control the subject mineral interests. Instead, Nic ke lsons argue that they are only potential owners who need to act in order to affirm their rights. Intestate Descendants, on the other h and, insist that intestate succession occurs automatically, granting them their ownership at the
time their ancestors died.

Kansas has long held that a mineral interest is an interest in real property. See Kumberg v. Kumberg , 232 Kan. 692, 699, 659 P.2d 823 (1983). Our Kansas Probate Code expressly provides that, absent certain exceptions, "the property of a resident decedent, who dies intestate, shall at the time of death pass by intestate succession."
K.S.A. 59

- 502. Later, another statute notes: "In al l cases of intestate succession . . . the property shall pass immediately from the decedent to the person entitled to receive it." (Emphasis added.) K.S.A. 59

- 509. Several of our Kansas cases reiterate this principle, holding: "By law the whole of an esta te vests in the heirs, testate or intestate, at the death
of an ancestor." Peterson v. Peterson , 173 Kan. 636, 640, 251 P.2d 221 (1952) ; s ee also
In re Estate of Williams , 238 Kan. 651, 659, 714 P.2d 948 (1986); Magaw v. Emick , 167 Kan. 580, 585, 207 P.2d 448 (1949) (holding that "[w]hile the administrator has a right of possession until the estate is settled . . . the property passes to the heirs "). And as Intestate Descendants observe, a judicial de cree of descent "does not create title but merely
declare s who has acquired the title of the decedent." Jardon v. Price , 163 Kan. 294, 299, 181 P.2d 469 (1947). In other words, a de cree of descent simply memorializes the property transfer that occurred immediately after the ancestor owner's death. See 163
Kan. a t 299.8

Whether a future assignee or purchaser of Intestate Descendants' mineral rights may demand a de cree of descent as a condition of purchase is not the question before us.
We find that a n owner of an unused mineral interest, as the term is used in K.S.A. 55

- 1604, is simply one who has acquired the right to possess, use, and control the subject
mineral interests.

No one disputes that the Intestate Descendants' ancestors owned the mineral rights at issue in this case. And according to Kansas law, when they died intestate, their ownership rights passed immediately to Intestate Descendants. At that time, Intestate Descendants gained the possession and use of the mineral rights. Now, they cons titute owners capable of filing a valid claim and preventing their interests from lapse. As such,
we affirm the district court's decision.

Affirmed.