IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| Alex M. Friedt, Ralph A. Friedt and | ) | Hettinger County Civil No. 99C5 | |||||
| Emma Friedt, attorney-in-fact for | ) | ||||||
| Jacob A. Friedt, | ) | Supreme Court No. 99-0374 | |||||
| ) | |||||||
| Plaintiffs-Appellants, | ) | ||||||
| vs. | ) | ||||||
| ) | |||||||
| Hettinger County, North Dakota, a | ) | ||||||
| political subdivision, Valentine J. | ) | ||||||
| Friedt, William J. Friedt, Lillian | ) | ||||||
| Friedt, Anna Bergenheier, Victor J. | ) | ||||||
| Friedt, Carleen Friedt Olson, Linda | ) | ||||||
| Huether, David Friedt, Dean Friedt, | ) | ||||||
| Dion Friedt, Dion Friedt, Dana | ) | ||||||
| Friedt, Verena Johnson, Dwight | ) | ||||||
| Friedt, Carla Albrecht, Carlotta | ) | ||||||
| Kostelecky, Timothy Raab, Joshua | ) | ||||||
| Raab and Tanya Raab, | ) | ||||||
| ) | |||||||
| Defendants-Appellees. | ) | ||||||
Appeal from Summary Judgment entered granting Defendants'
Motion for Summary Judgment in Civil File No. 99C5
Hettinger County, District Court, Southwest Judicial District
the Honorable Allan L. Schmalenberger Presiding
BRIEF OF APPELLEES
| Bruce A. Selinger (ID # 04368) | ||||||
| KUBIK, BOGNER, RIDL & SELINGER | ||||||
| Attorney for Appellees | ||||||
| 26 East Third Street | ||||||
| P. O. Box 1173 | ||||||
| Dickinson, ND 58602-1173 | ||||||
| (701) 225-9155 |
TABLE OF CONTENTS
Page No.
TABLE OF AUTHORITIES . ii
STATEMENT OF ISSUES PRESENTED FOR REVIEW.. 1
STATEMENT OF THE CASE ..... 2
STATEMENT OF FACTS ..... 5
LAW AND ARGUMENT 6
CONCLUSION ... 13
CERTIFICATE OF SERVICE ..... 14
TABLE OF AUTHORITIES
CASES: Page No.
Jorgensen v. Crow, 466 N.W.2d 120, 123 (N.D. 1991) 11
McDonald v. Antelope Land & Cattle Company,
294 N.W.2d 391 (N.D. 1980) 8
Malloy v. Boettcher, 334 N.W.2d 8, 9, (N.D. 1983) 8
Mueller v. Stangland, 340 N.W.2d 450, 451 (N.D. 1983) 8, 13
Schulz v. Hauck, 312 N.W.2d 360,363 (N.D. 1981) 8
State v. Rosenquist, 78 N.D. 671, 51 N.W.2d 767 (1952) 10
Zitzow v. Diederick, 337 N.W.2d 799 (N.D. 1983) 11
STATUTES:
Section 9-06-07, N.D.C.C. 11
Chapter 9-07, N.D.C.C. 8
Section 9-07-02, N.D.C.C. 8
Section 9-07-03, N.D.C.C. 8
Section 9-07-04, N.D.C.C. 8
Section 9-07-06, N.D.C.C. 8
Section 47-09-11, N.D.C.C. 8
TEXT AUTHORITIES:
Black's Law Dictionary (5th Addition) 11
STATEMENT OF ISSUE PRESENTED FOR REVIEW
1. Whether the District Court was clearly erroneous in holding that the reservations of minerals in a deed between Alex Friedt, Sr. (not the Plaintiff herein), and Anna Friedt, husband and wife, as grantors, and Valentine J. Friedt, one of the Defendants herein, as grantee, was clear and unambiguous and that Valentine J. Friedt was thus entitled to summary judgment as granted in these proceedings.
STATEMENT OF THE CASE
This is an appeal of a summary judgment granted by the District Court in which the Court ruled that the reservation in the contract for deed and deed was not ambiguous and that there was no genuine issue as to any material facts, therefore, Valentine J. Friedt was entitled to judgment as a matter of law.
The appellants, Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt, brought an action to quiet title claiming to be the owners of a portion of the gravel underlying the following real estate:
Hettinger County, North Dakota
Township 135 North - Range 93 West
Section 22: SE¼, E½SW¼
Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt claim ownership of a portion of the gravel based upon a mineral reservation contained in a Contract for Deed and subsequent deed given by their parents, Alex Friedt, Sr., and Anna Friedt, to their son, Valentine (Val) J. Friedt. Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt are three of the nine children of Alex Friedt and Anna Friedt. Gravel has been mined in the E½SW¼ of the land described above.
Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt commenced this action by the service of a Summons and Complaint dated December 30, 1998. The appellee, Valentine J. Friedt, by Answer and Counterclaim dated January 7, 1999, denied the various allegations of the Complaint and counterclaimed against Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt seeking to have the gravel in said property quieted in him and barring Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt from asserting any claim to the gravel in question.
Appellee, Hettinger County, also filed an Answer denying that Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt owned any interest in the gravel. No other appellees appeared.
On May 7, 1999 Valentine J. Friedt filed a Motion and Brief for Summary Judgment. Valentine J. Friedt argued that there were no genuine issues of material fact because the deed was not ambiguous, and therefore, he owned the gravel. Hettinger County joined in the Motion for Summary Judgment and filed its Brief in support thereof. Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt filed a Brief in response to the Motion for Summary Judgment resisting the Motion and asserting that there were genuine issues of fact claiming the deed was ambiguous.
Valentine Friedt filed a Reply to Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt's Brief in response to the Motion for Summary Judgment.
District Judge Allan Schmalenberger, by Memorandum granted Valentine J. Friedt's Motion for Summary Judgment.
On July 26, 1999, Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt filed a Motion for Reconsideration requesting the Court to vacate is Order granting Motion for Summary Judgment.
Both Hettinger County and Valentine J. Friedt filed a response to the Motion for Reconsideration resisting the Motion.
The District Court, denied the Motion for Reconsideration on October 22, 1999.
Judgment was subsequently entered from which this appeal has been taken.
STATEMENT OF FACTS
Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt are attempting to claim an interest as sons and heirs of Alexander Friedt and Anna Friedt in the gravel located in Section 22: SE¼, E½SW¼, as a result of the language contained in a Contract for Deed and subsequent Warranty Deed from Alexander Friedt and Anna Friedt to Valentine J. Friedt. The Contract for Deed and Warranty Deed convey the following described property:
Hettinger County, North Dakota
Township 135 North - Range 93 West
Section 16: E½SW¼
Section 20: SE¼
Section 22: SE¼, E¼SW¼
Section 27: E½
The Contract for Deed contains the following reservation:
"First parties except from the contract and reserve unto themself an undivided one-half interest in and to all of the oil, gas and other minerals, which shall include but not be limited to: coal, limestone, sulfur, gravel, uranium, thorium and all other radio-active or fissionable minerals, together with the right of ingress and egress at all times for the purpose of mining, drilling, exploring, operating and developing said lands for said oil, gas and other minerals, and storing, handling, transporting and marketing the same therefrom intending hereby to convey unto grantee a like one-half oil, gas and other mineral interest in the following described lands, all situate in Township 135, Range 93: E½SW¼ of 16; SE¼ of 20, E½ of Section 27."
Section 22: SE¼, E½SW¼ is not included in said reservation. The Warranty Deed contains the following reservation:
"But there is excepted and reserved unto the parties of the first part an undivided one-half interest in and to all of the oil, gas and other minerals which shall include but not be limited to coal, limestone, sulfur, gravel, uranium, thorium and other radio-active or fissionable minerals, together with the right of ingress and egress at all times for the purpose of mining, drilling, exploring, operating and developing said lands for said oil, gas and other minerals, and storing, handling, transporting and marketing the same therefrom, intending hereby to convey unto grantee a like one-half oil, gas and other mineral interest in the following described lands, all situated in Township 135, Range 93: E½SW¼ of 16; SE¼ of 20, E½ of Section 27."
Again, Section 22: SE¼, E½SW¼ is not included in the reservation.
Valentine J. Friedt has sold gravel from a gravel pit located on the E½SW¼ of Section 22, Township 135 North, Range 93 West to Hettinger County. (See Affidavit of Roy J. Steiner, p. 28 of Appendix).
Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt, in an attempt to create an ambiguity, refer to subsequent documents which are wholly irrelevant, do not mention gravel, are self-serving or attempt to convey minerals no longer owned.
The only relevant fact in this case is that the reservation in the Contract and Deed does not include Section 22: SE¼, E½SW¼. Therefore, all gravel and sand is owned by Valentine J. Friedt.
LAW AND ARGUMENT
A.
The express language in the Contract for Deed and Warranty Deed convey all of the oil, gas and other minerals, including gravel, to Valentine J. Friedt in Section 22: SE¼, E½SW¼.
By the Contract for Deed and subsequent Warranty Deed, Alex Friedt and Anna Friedt conveyed the following described property to Val Friedt, aka Valentine J. Friedt:
The E½SW¼ of Section 16 and the SE¼ of Section 20, and the SE¼ of Section 22, and the E½SW¼ of Section 22, and the E½ of Section 27, all in Township 135 North, Range 93 West, Hettinger County, North Dakota.
Both the Contract for Deed and Warranty Deed contain a similar reservation of minerals. The reservation, as set forth in the Warranty Deed states as follows:
But there is excepted and reserved unto the parties of the first part an undivided one-half interest in and to all of the oil, gas and other minerals, which shall include but not be limited to: coal, limestone, sulfur, gravel, uranium, thorium and other radio-active or fissionable minerals, together with the right of ingress and egress at all times for the purpose of mining, drilling, exploring, operating and developing said lands for said oil, gas and other minerals, and storing, handling, transporting and marketing the same therefrom intending hereby to convey unto grantee a like one-half oil, gas and other mineral interest in the following described lands, all situate in Township 135, Range 93: E½SW¼ of 16; SE¼ of 20; E½ of 27.
The above reservation clearly and specifically does not include Section 22: SE¼, E½SW¼. Throughout the reading and review of the Appellants' Brief, it is critical that two factors always be considered. First, the reservation in the Deed and Contract did not include Section 22: SE¼, E½SW¼. Second, if the grantors in the Deed and Contract had wanted to reserve all of the minerals including gravel, in all of the lands being conveyed, all they had to do was not include any legal descriptions in the reservation clause.
The primary purpose in construing a deed is to ascertain and effectuate the intent of the grantor. Malloy v. Boettcher, 334 N.W.2d 8, 9 (N.D. 1983). Section 47-09-11 of the North Dakota Century Code provides that grants of real property "shall be interpreted in like manner with contracts in general except so far as otherwise provided" in that chapter. Therefore, in interpreting deeds, the North Dakota Supreme Court has traditionally looked to the rules for interpreting contracts to aid the Court in construing a deed. See Mueller v. Stangland, 340 N.W.2d 450, 451 (N.D. 1983) and Schulz v. Hauck, 312 N.W.2d 360,363 (N.D. 1981).
The Supreme Court in Mueller v. Stangland summarized the statutory rules for interpreting contracts as follows:
[C]hapter 9-07, N.D.C.C. provides, among other things, that:(1) the language of a contract governs if it is clear and explicit and does not involve an absurdity (Sec. 9-07-02);
(2) a contract must be interpreted to give effect to the mutual intention of the parties (Sec. 9-07-03);
(3) the intention of the parties to a written contract is to be ascertained from the writing alone if possible (Sec. 9-07-04);
(4) a contract is to be interpreted as a whole to give effect to every part (Sec. 9-07-06) . . . ; 340 N.W.2d at 451.
As stated in McDonald v. Antelope Land & Cattle Company, 294 N.W.2d 391 (N.D. 1980), "the best evidence of the party's intention, of course, is the language in the deed itself, and, therefore, the language of the writing alone, if clear and explicit, governs the interpretation of the party's intent." Id. at 394 (citations omitted).
The intention of the parties to the Contract for Deed and Warranty Deed in this case is clear and explicit and can easily be ascertained from the writing alone. A careful review of the language in the Contract for Deed and Warranty Deed finds that the grantors, Alex Friedt and Anna Friedt, conveyed all of their right, title and interest in certain described lands. The deeds contain a reservation of an undivided one-half interest in and to all the oil, gas, gravel and other minerals, but only to those specific lands described in the reservation.
The reservation language in both the Contract for Deed and Warranty Deed do not refer to all of the lands conveyed in the granting clause. The reservation omits the SE¼ and E½SW¼ of Section 22 and, as discussed herein, the reservation of oil, gas and other minerals, including gravel, therefore does not apply to the SE¼, E½SW¼ of Section 22. Had grantor intended to include the Section 22: SE¼, E½SW¼ property, he simply would have eliminated the legal description in the reservation clause. By looking at the Contract and Deed as a whole, the intent of the parties is clear. The basis for the reservation clause excluding the lands in Section 22 is that the parties simply did not intend the reservation of oil, gas and other minerals (other minerals defined to include gravel) to apply to Section 22: SE¼, E½SW¼. By limiting the reservation to certain lands, the grantor's intent is very clear.
B. The subsequently recorded documents are irrelevant.
Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt must recover in an action to quiet title upon the strength of their own title, and not upon the alleged weakness of the Valentine J. Friedt's title. State v. Rosenquist, 78 N.D. 671, 51 N.W.2d 767 (1952). In this case, the title is clear and grants 100% of the gravel in Section 22: SE¼, E½SW¼ to Valentine J. Friedt. Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt attempt to create an ambiguity in the reservation in the Contract for Deed and the Warranty Deed by referring to a subsequent Mineral Deed. (See Mineral Deed attached to appellants' Brief as Exhibit 3). The fact that a grantor later attempts to transfer identical interests which he no longer owns, is immaterial and irrelevant to the interpretation of the Warranty Deed and Contract in this case. These interests had already been transferred to Valentine J. Friedt. It is obvious that the Mineral Deed (attached to appellant's Brief as Exhibit 3) was intended to transfer all known and unknown mineral interests owned by Alex Friedt, Sr. in the property described therein. It is common for the drafter of mineral documents to include all lands in a conveyance without knowledge of ownership and without checking the records to insure that all minerals possibly owned by the grantor therein, pass to the grantee.
Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt further refer to a Stipulation of Interest and Statement of Claim in the hope of creating an ambiguity. (See appellants' Exhibit 3). Once again, this Stipulation of Interest and Statement of Claim are irrelevant because they do not refer to gravel, nor does the Stipulation contain any granting or conveying language. What it does do is affirm that Valentine J. Friedt owns 100% of the oil and gas in Section 22: E½SW¼ consistent with the Deed.
Finally, although not relevant, the Memorandum of Title by B. J. Kadrmas, Inc. shows the gravel in Section 22: E½SW¼ is owned 100% by Valentine J. Friedt. Once again, the independent opinion of a landman, not qualified as an expert, who's report was not offered into evidence and who was employed by Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt, is not any proof of an ambiguity.
Therefore, to allow parol evidence as to the intentions of a deceased grantor, as attempted by Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt, would be in error when the recorded documents are unambiguous and the parties' intentions are clear on the face of documents. The parol evidence rule seeks to preserve the integrity of written agreements by refusing to permit contracting parties to attempt to alter their contract through use of oral evidence. See Section 9-06-07, N.D.C.C., Black's Law Dictionary (5th Addition) and Jorgensen v. Crow, 466 N.W.2d 120, 123 (N.D. 1991). "Parol evidence cannot vary or contradict the terms of a complete, written contract adopted as a definite expression of the parties agreement." Id. Jorgensen at 123. The legal effect of an instrument is a question of law for this Court to decide. Zitzow v. Diederick, 337 N.W.2d 799 (N.D. 1983). The applicable recorded documents do not reserve any minerals or gravel in the Section 22: SE¼, E½SW¼ property. Therefore, there is nothing left for interpretation. Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt own no gravel or minerals in said land.
C.
The intent of a document must be ascertained by the entire document, not by selecting certain words and ignoring all other words of a document.
Using Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt's arguments, a grantor could never choose to reserve minerals on one tract but not on another in the same deed. Such arguments are ridiculous. Further, case law requires a reading of a document as a whole, not merely choosing isolated words or phrases in order to alter the obvious meaning of the whole.
The reservation contains one continuous sentence and is specific as to only those lands described in the reservation itself. The words "excepted" and "reserved" contained in the Contract for Deed and Warranty Deed did prevent the title to the excepted interest from passing to the grantee in Section 16: E½SW¼, Section 20: SE¼ and Section 27: E½. Said reservation does not include or apply to Section 22: SE¼, E½SW¼. Alex M. Friedt, Ralph A. Friedt and Jacob A. Friedt attempt to imply that because the Section 22 property was omitted in the reservation, an ambiguity was created. However, the opposite is true. The way the Contract and Deed were worded clarifies the intentions of the parties. There exists no rational argument to support their position as to the meaning of the language in the Deed or that is ambiguous. Mueller v. Stangland, 340 N.W.2d 450, 453. Nor was the District Court clearly erroneous in its conclusion that there is simply no other way to interpret the reservation as a whole. There is only one logical meaning to the reservation, that meaning being that the reservation does not apply to the Section 22 property.
This reservation must be read as a whole wherein it states that the grantor intended to reserve one-half interest and intended to convey to grantee a like interest in the following described lands. Section 22 property is not included in the following described lands.
CONCLUSION
The reservation language of the Contract for Deed and Warranty Deed are not ambiguous. The reservation simply does not apply to Section 22: SE¼, E½SW¼ and is limited to the other lands described in the Deed as was the clear and obvious intent of the parties. The District Court was correct in applying the statutory rules of construction of a deed as construed by this Court and was not clearly erroneous in concluding the logical interpretation of the deed is that Valentine J. Friedt is the owner of all the gravel in Section 22: SE¼, E½SW¼.
We respectfully request that the Court affirm the decision of the District Court and quiet title in favor of Valentine J. Friedt all of the gravel in Section 22: E½SW¼ and SE¼.
Respectfully submitted this _____ day of February, 2000.
KUBIK, BOGNER, RIDL & SELINGER
Attorneys for Appellees
26 East Third Street, P. O. Box 1173
Dickinson, ND 58602-1173
(701) 225-9155
By:________________________________
Bruce A. Selinger, Attorney
(I.D. # 04368)
CERTIFICATE OF SERVICE
I certify that I caused a true and correct copy of the foregoing Brief of Appellees to be mailed, by first class mail with postage duly prepaid, on the ______ day of February, 2000, to the following persons:
| Albert J. Hardy | Craig C. Smith | ||||||
| Attorney at Law | Attorney at Law | ||||||
| P. O. Box 570 | P. O. Box 2798 | ||||||
| Dickinson, ND 58602-0570 | Bismarck, ND 58502-2798 | ||||||
| Bruce A. Selinger | |||||||