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In re Protest of Barker

Court of Appeals of Kansas

June 6, 2014

In the Matter of the Protest of BARKER, ROBERT E. and R. GAY for the Year 2011 in Neosho County, Kansas

Page 1037

Appeal from the Court of Tax Appeals.

Reversed and remanded with directions.

SYLLABUS

BY THE COURT

1. Under the Kansas Judicial Review Act, K.S.A. 77-601 et seq., the burden of proving the invalidity of a decision by the Court of Tax Appeals rests on the party asserting invalidity.

2. In Kansas, an oil and gas lease conveys a license to explore or a profit a prendre. Like other easements, a profit a prendre (or profit) is an incorporeal hereditament or an intangible right in the land. Unlike an ordinary easement, a profit grants not only the right to go onto the land of another but also to take some product from the land.

3. An oil and gas lease conveys a license to enter upon the land owned by another to explore for such minerals and to produce and sever them if discovered. In Kansas, oil and gas leasehold interests constitute personal property except in specific instances covered by statute. For the purposes of valuation and taxation in Kansas, all oil and gas leases are personal property.

4. Easements and profits are both servitudes. In fact, a profit is simply an easement that grants a person the additional right to take from the land. Likewise, the rules governing creation, interpretation, transfer, and termination of easements and profits are generally the same in American law.

5. Although a servitude may be terminated by agreement of the parties, it also may be terminated by operation of law. Under the legal doctrine of merger, when the burdens and benefits of an easement or a profit are united through common ownership in either a single person or a group of persons, an easement or profit ceases to have any function. This is because, as a general rule, a landowner does not need a license or permission to use his or her own property, and the easement or profit terminates by operation of law. This doctrine of merger is applicable to oil and gas leases just as it is to other servitudes.

6. Joint tenancy requires four unities--interest, title, time, and possession.

7. Under the facts of this case, the taxpayers are joint tenants and constitute one person. Because the husband owns the whole and every part of the land, he does not need a license to enter his own property to explore, discover, or remove oil and gas. Thus, the oil and gas lease no longer served a purpose and was terminated by operation of law.

Robert E. Barker, appellant, Pro se.

R. Gay Barker, appellant, Pro se.

Eric W. Barth, of Hinkle Law Firm LLC, of Wichita, for appellee.

Before BRUNS, P.J., PIERRON and STANDRIDGE, JJ.

OPINION

Page 1038

Bruns, P.J.


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