BY THE COURT
Misappropriation of royalties cannot, standing alone,
establish a claim of adverse possession to a mineral
Adverse possession of a mineral interest requires actively
working the minerals in the ground.
of the judgment of the Court of Appeals in 51 Kan.App.2d
1028, 360 P.3d 457 (2015).
from Haskell District Court; Bradley E. Ambrosier, judge.
M. Cunningham, of Doering & Grisell, P.A., of Garden
City, argued the cause and was on the briefs for appellant.
E. Lawrence, of Fleeson, Gooing, Coulson, & Kitch,
L.L.C., of Wichita, argued the cause, and Willard B.
Thompson, and David G. Seely, of the same firm, and Erik E.
Nordling, of Kramer, Nordling, & Nordling, LLC, of
Hugoton, were with him on the briefs for appellees Red Wing
Oil, LLC, et al.
case arises from a dispute over a one-half ownership interest
in the minerals under a quarter section of land in Haskell
County. Royalties from these mineral rights are being
generated by mineral production occurring on adjacent land
which is part of the same unitized production unit. The
producer initiated an interpleader and quiet title action in
order to determine who is the rightful owner of these
royalties. As set forth below, we determine that the rightful
owner of the disputed one-half interest in the minerals is
the fee owner of the surface property and that, as a matter
of law on these facts, adverse possession does not bar the
surface owner's rightful claim to ownership.
and Procedural Background
2009, Oxy USA Inc. (Oxy) developed a productive oil and gas
well on a unitized production unit of land in Haskell County.
The unitized area included the quarter section of land which
is the subject of this lawsuit (the Property). The well is
not actually located on the Property, but the owner of the
minerals under the Property is entitled to receive royalties
from the production by virtue of the unitization agreement.
But Oxy was unable to determine which party owned a disputed
one-half interest in the minerals under the Property. Thus,
Oxy initiated this interpleader and quiet title action to
determine the rightful legal owner of the minerals under the
real contestants here are the two potential owners of the
minerals at issue. Alice LaVelle King, who currently owns the
surface of the Property and an undisputed one-half interest
in the minerals, claims the other one-half mineral interest
belongs to her. Opposing King are at least 41 different
people or entities that claim some fraction of the disputed
one-half mineral interest under a term interest once held by
Frank Luther. For ease of reference, we will refer to these
parties as the Luther Term Interest Holders.
summarized, the history of ownership of the disputed minerals
on the Property proceeds as follows. In 1943, the owner of
the Property entered into an oil and gas lease with a
producer. Following the Property owner's death, the
Property passed to Frank Luther, who took the property
subject to the lease. Then, Luther sold the Property,
"an undivided one-half interest in and to all oil, gas
or other minerals in and under and that may be produced from
the . . . property and the right of participation in all
events pertaining to said oil, gas or other minerals for a
period of twenty (20) years from the date of this instrument
or as long ...