Ricks v. Vap

BarBara a. ricks , appellee , v. Daniel vap, also known
as Daniel s. vap, anD Joe l. vap, appellees ,
anD Blanche vap et al ., appellants.
784 N.W.2d 432
Filed June 25, 2010. 	No. S-09-991.
1. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question
of law, which an appellate court resolves independently of the trial court.
2. Mines and Minerals. Nebraska’s dormant mineral statutes, Neb. Rev. Stat.
§§ 57-228 to 57-231 (Reissue 2004), expressly require the record owner of a
severed mineral interest to publicly exercise the right of ownership by performing
one of the actions specified in § 57-229 during the statutory dormancy period.
3. Statutes: Legislature: Intent: Appeal and Error. Statutory language is to be
given its plain and ordinary meaning, and an appellate court’s duty in discerning
the meaning of a statute is to determine and give effect to the purpose and intent
of the Legislature as ascertained from the entire language of the statute consid-
ered in its plain, ordinary, and popular sense.
Appeal from the District Court for Hitchcock County: DaviD
UrBom, Judge. Affirmed.
George G. Vinton for appellants.
Daylene A. Bennett, of Burger & Bennett, P.C., for appellee
Barbara A. Ricks.
heavican, 	c.J., 	wright, 	connolly, 	gerrarD, 	stephan,
mccormack , and miller-lerman, JJ.
gerrarD, J.
Nebraska’s dormant mineral statutes1 provide that a severed
mineral interest shall be considered abandoned if, for a period
of 23 years, its “right of ownership” is not publicly exercised
by its record owner. Among the ways in which the record
owner can exercise the right of ownership are “leasing” or
“transferring” the mineral interest with a recorded instrument.2
But if a severed mineral interest is abandoned, the owner of the
surface estate can sue to terminate the mineral interest.3
1 Neb. Rev. Stat. §§ 57-228 to 57-231 (Reissue 2004).
2 § 57-229(1).
3 § 57-228.
130 	280 NeBRASkA RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

In this case, the record owners of severed mineral interests
executed leases which were allowed to expire at the end of
their 5-year terms. The owner of the surface estate sued to
terminate the mineral interests more than 25 years after the
leases were executed and recorded, but just over 21 years after
the leases expired. The question presented in this appeal is
whether the 23-year period prescribed by the dormant min-
eral statutes began to run when the leases were executed and
recorded or when they expired. Because we conclude that the
23-year dormancy period began to run when the leases were
executed and recorded, we affirm the judgment of the district
court which had properly granted relief to the owner of the
surface estate.
BACkGRouND
There are two parcels of land at issue in this appeal: the
northwest and southwest quarters of a section of land in
Hitchcock County, Nebraska. The record owner of the surface
estate is Barbara A. Ricks, the plaintiff in this case. Ricks is
also the record owner of a one-half interest in the mineral
estate for both parcels. The record owner of the remaining
mineral interest in the northwest quarter was Daniel Vap, and
the record owner of the remaining mineral interest in the south-
west quarter was Joe Vap, Daniel’s father. Daniel and Joe are
deceased, and this action is being defended by their various
heirs, who we refer to collectively as the “Vap heirs.”
The last activity regarding the mineral estate recorded in
Hitchcock County are two leases of the mineral interests now
claimed by the Vap heirs. The mineral estate for the northwest
quarter was leased to the Gemini Corporation (Gemini) for a
5-year term by Daniel and his wife in a lease dated November
22, 1983, and recorded on January 19, 1984. The mineral
estate for the southwest quarter was the subject of two 5-year
leases to Gemini, both dated December 7, 1983: one executed
by Joe’s widow and the other by Joe’s children and their
spouses. one of the southwest quarter leases was recorded
on January 19, 1984, and the other was recorded on March 6.
Although the record does not seem to conclusively establish it,
we assume for purposes of this appeal that Gemini made the
RICkS v. VAP 	131
Cite as 280 Neb. 130

payments necessary under the leases to extend them for their
full 5-year terms.
Ricks filed her complaint to terminate the allegedly aban-
doned mineral interests on January 22, 2009. The Vap heirs
answered, alleging that the right of ownership in the disputed
mineral interests had been publicly exercised at the termina-
tion of the leases, in 1988—less than 23 years before Ricks’
complaint was filed. Ricks moved for summary judgment,
which the district court granted, reasoning that the statutory
period had only been extended from the dates the leases were
executed, more than 23 years earlier. The Vap heirs appeal.
ASSIGNMeNT oF eRRoR
The Vap heirs assign, consolidated and restated, that the
district court erred in determining that the leases did not con-
stitute a public exercise of the right of ownership of the severed
mineral interests within 23 years before the filing of the action,
so that the mineral interests could not be considered abandoned
under the dormant mineral statutes.
STANDARD oF ReVIeW
[1] The meaning of a statute is a question of law, which an
appellate court resolves independently of the trial court.4
ANALySIS
This case turns on the meaning of Nebraska’s dormant min-
eral statutes. Generally, dormant mineral statutes were enacted
to address title problems that developed after mineral estates
were fractured.5 At common law, mineral interests could not
be abandoned.6 But permanent or long-term mineral interests
could be created during a period of activity in a particular
industry, and those interests did not terminate when the activity
4 See Bamford v. Bamford, Inc., 279 Neb. 259, 777 N.W.2d 573 (2010).
5 See, generally, Timothy C. Dowd, Clearing Title of Long-Lost Mineral
Owners, 54 Rocky Mtn. Min. L. Inst. 30-1 (2008); Ronald W. Polston,
Mineral Ownership Theory: Doctrine in Disarray, 70 N.D. L. Rev. 541
(1994).
6 See Dowd, supra note 5.
132 	280 NeBRASkA RePoRTS

ceased.7 So, the mineral estate could be held by owners who
had long disappeared from the area, leaving no trace.8 When
the record owner of severed mineral interests could not be con-
tacted, the dormant interests could cloud the titles of surface
owners, and further development of the mineral estates became
nearly impossible.9 Legislatures sought to remedy some of
those problems by enacting statutes to reunite dormant mineral
estates with surface estates.10
Nebraska’s dormant mineral statutes are representative of
those concerns.11 Section 57-228 provides:
Any owner or owners of the surface of real estate from
which a mineral interest has been severed, on behalf
of himself and any other owners of such interest in the
surface, may sue in equity in the county where such real
estate, or some part thereof, is located, praying for the
termination and extinguishment of such severed mineral
interest and cancellation of the same of record . . . .
The court shall enter judgment terminating the severed mineral
interest and vesting title in the surface owner if the court “shall
find that the severed mineral interest has been abandoned.”12
And § 57-229 explains in part:
A severed mineral interest shall be abandoned unless
the record owner of such mineral interest has within the
twenty-three years immediately prior to the filing of the
action provided for in sections 57-228 to 57-231, exer-
cised publicly the right of ownership by (1) acquiring,
selling, leasing, pooling, utilizing, mortgaging, encumber-
ing, or transferring such interest or any part thereof by
an instrument which is properly recorded in the county
7 See Ronald W. Polston, Legislation, Existing and Proposed, Concerning
Marketability of Mineral Titles, 7 Land & Water L. Rev. 73 (1972).
8 See id.
9 See, Dowd, supra note 5; Polston, supra note 5; Polston, supra note 7.
10 See Dowd, supra note 5.
11 See, generally, Committee on Public Works Hearing, L.B. 158, 77th Leg.,
1st Sess. 14 (Feb. 10, 1967); Floor Debate, 77th Leg., 1st Sess. 477-78
(Feb. 17, 1967).
12 § 57-230.
RICkS v. VAP 	133
Cite as 280 Neb. 130

where the land from which such interest was severed is
located; or (2) drilling or mining for, removing, produc-
ing, or withdrawing minerals from under the lands or
using the geological formations, or spaces or cavities
below the surface of the lands for any purpose consistent
with the rights conveyed or reserved in the deed or other
instrument which creates the severed mineral interest; or
(3) recording a verified claim of interest in the county
where the lands from which such interest is severed
are located.
There is no evidence in this case of any drilling or mining
activity or of a recorded claim of interest. Instead, the ques-
tion is whether the right of ownership claimed by the Vap heirs
was publicly exercised pursuant to § 57-229(1). Specifically,
the Vap heirs argue that they or their predecessors in interest
exercised the right of ownership by “leasing” or “transferring”
the mineral interests.
The Vap heirs rely on a Michigan case, 	Energetics v
Whitmill,13 that arose under similar circumstances, and in which
the Michigan Supreme Court held that the interests at issue
were not abandoned. But we find Whitmill to be distinguish-
able, because of an important difference between the Nebraska
and Michigan dormant mineral statutes.
In Whitmill, severed oil and gas interests had been leased
for a 10-year period, but the lease expired, and several years
later, the surface owners claimed title pursuant to the Michigan
dormant mineral statute. Whether the 20-year dormancy period
had run depended on whether the period began to run at the
beginning or end of the lease term. The Michigan statute
provided, in relevant part, that an oil or gas interest “‘in any
land owned by any person other than the owner of the surface,
which has not been sold, leased, mortgaged or transferred . . .
for a period of 20 years shall, in the absence of the issuance of
a drilling permit . . . be deemed abandoned.’”14
13 Energetics v Whitmill, 442 Mich. 38, 497 N.W.2d 497 (1993).
14 See, id. at 40 n.2, 497 N.W.2d at 499 n.2; Mich. Comp. Laws Ann.
§ 554.291 (West 2005).
134 	280 NeBRASkA RePoRTS

The Michigan Supreme Court rejected the argument that
the mineral interests had been “leased” during the lease term,
explaining that if such a construction of the statute were
adopted, “there would be nothing to prevent the owner of a
severed interest from executing a lease with a primary term
much longer than twenty years. Thus, a severed interest might
be sheltered from the operation of the act for an indefinite
period.”15 And had the Michigan Legislature intended that
result, it could have explicitly provided that the dormancy
period would not run while the severed interest was subject to
a lease.16
The court found, however, that when the lease expired, the
oil and gas interest had been “‘transferred’” within the mean-
ing of the Michigan statute.17 The court explained that the lease
itself was a transfer of the oil and gas interest, so when the
rights conferred by the lease reverted back to the lessor, the
interest was “‘transferred’” back.18
[2] But the Michigan court’s reasoning was grounded in the
unique language of the Michigan statute, which, as set forth
above, simply required that an oil or gas interest be “sold,
leased, mortgaged or transferred” to avoid abandonment, with-
out regard to who (if anyone) initiated the action.19 Nebraska’s
statute, on the other hand, expressly requires “the record owner
of such mineral interest” to “exercise[] publicly the right of
ownership” by performing one of the actions specified in
the statute during the statutory period.20 In other words, the
Whitmill court’s reasoning regarding whether the mineral inter-
est had been “transferred” is inapplicable under Nebraska’s
statute, and the court’s reasoning regarding when the interest
had been “leased” supports the district court’s conclusion, in
15 Whitmill, supra note 13, 442 Mich. at 46, 497 N.W.2d at 501.
16 See id.
17 Id. at 46, 497 N.W.2d at 502.
18 Id.
19 See Mich. Comp. Laws Ann. § 554.291.
20 See § 57-229.
RICkS v. VAP 	135
Cite as 280 Neb. 130

this case, that it had been leased by the record owner only
when the lease was executed and properly recorded.
The record in this case is clear that the record owners of
the disputed mineral interests last “leased” the interests within
the meaning of the statute at the time the leases were executed
and properly recorded, because that was when they publicly
exercised their right of ownership. And even assuming, without
deciding, that the expiration of the leases in this case resulted
in a “transferring” of the disputed mineral interests, such a
transfer was initiated either by the lessee or simply by opera-
tion of law—not by the record owners.
[3] To conclude otherwise would be contrary to both the lan-
guage and purpose of the dormant mineral statutes. Statutory
language is to be given its plain and ordinary meaning,21 and
our duty in discerning the meaning of a statute is to determine
and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered
in its plain, ordinary, and popular sense.22 It is consistent with
the statutory purpose of preventing abandonment of mineral
estates to require an absent owner of dormant mineral interests
to actively exercise those interests. And the plain language of
§ 57-229 provides that a severed mineral interest is abandoned
unless the record owner of the interest is the one who publicly
exercises it.
In this case, that did not happen during the 23 years preced-
ing Ricks’ complaint. Had the Vap heirs wanted to preserve
their interests during that time, they could have recorded a
verified claim of interest in Hitchcock County. Instead, they
permitted the interests to remain dormant, which is precisely
what the dormant mineral statutes are intended to address.
Therefore, we find no merit to their assignment of error.
CoNCLuSIoN
The last time Daniel, Joe, or the Vap heirs publicly exercised
their right of ownership to the severed mineral interests disputed
21 Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008).
22 See Concrete Indus. v. Nebraska Dept. of Rev., 277 Neb. 897, 766 N.W.2d
103 (2009).
136 	280 NeBRASkA RePoRTS

in this case was when they leased and properly recorded the
interests to Gemini, more than 25 years before Ricks filed her
complaint to terminate and extinguish those interests. The dis-
trict court did not err in granting Ricks the relief she requested.
The district court’s judgment is affirmed.
affirmeD.
IN Re INTeReST oF ReBeCCA B. 	137
Cite as 280 Neb. 137
in re interest of reBecca B.,
a chilD UnDer 18 years of age .
state of neBraska , appellant,
v. reBecca B., appellee .
783 N.W.2d 783
Filed June 25, 2010. 	No. S-09-1041.
1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional
issues not involving factual disputes as a matter of law, which requires the appel-
late court to reach independent conclusions.
2. ____: ____. Before reaching the legal issues presented for review, it is the duty
of an appellate court to settle jurisdictional issues.
3. Double Jeopardy. The Double Jeopardy Clauses of both the federal and the
Nebraska Constitutions protect against three distinct abuses: (1) a second pros-
ecution for the same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same offense.
4. Double Jeopardy: Probation and Parole. The Double Jeopardy Clause gener-
ally is not violated by a reconsideration or revocation of probation.
5. Criminal Law: Probation and Parole. A motion to revoke probation is not a
criminal proceeding.
6. Probation and Parole: Juvenile Courts. A probation revocation hearing is
considered a continuation of the original prosecution for which probation was
imposed—in which the purpose is to determine whether a defendant or a juvenile
has breached a condition of his existing probation, not to convict or adjudicate
that individual of a new offense.
7. ____: ____. A probation revocation hearing usually involves a limited inquiry by
the trial judge, focusing on whether the defendant or juvenile has been convicted
or adjudicated for another offense or failed to comply with a specific condition
of probation.
8. ____: ____. A probation revocation hearing is not part of a criminal prosecution
or adjudication and therefore does not give rise to the full panoply of rights that
are due a defendant at a trial or a juvenile in an adjudication proceeding.
9. Criminal Law: Probation and Parole: Sentences. Violation of probation is not
itself a crime or offense; the statute provides a mechanism whereby the previous
probation is revoked and the court may impose a new sentence for the offense for
which the offender was originally convicted or adjudicated.