# Appendix — EDEN H. POND v. ULYSSES G. WALDENEN JR. (Nos. 80-1018, 80-965)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1981

## Text

No. 80-1018

SUPREME COURT OF THE

OCTOBER TERM, 1980

EDEN H. POND,
EDNA H. BOBE,
CONSOLIDATION COAL COMPANY,
Appellants,

v.

ULYSSES G. WALDEN, JR.
CAROLYN SALLEE WALDEN,
Appellees,

LOUISE F. SHORT,
Intervenor.

JAMES M. BUTHOD and CHARLES R. NIXON
MARK W. RIETMAN 223 W. State Street

Buthod, Longest, Buthod & _— Princeton, Indiana 47670
Rietman Telephone (812) 385-5233

Citizens Bldg., Suite 409 Attorney for Appellees

Telephone (812) 423-5261 RONALD W. POLSTON
Attorneys for Appellants 735 W. New York Street
Indianapolis, Indiana 46202

DAVID A. MILLER Telephone (317) 264-4993
Deputy Attorney General Attorney for Appellees

State of Indiana

219 State House : VERN P. PARTENHEIMER, JR.

Indiana 46204 _— Hall, Partenheimer & Kinkle
; Telephone (317) 232-6330 219 North Hart Street

P. O. Box 313
Princeton, Indiana 47670
Telephone (812) 385-2586
Attorney for Intervenor

EEe————eeeEEE——EEEEEEEEe
Whipporwill publications, 4400 Jackson Ave., Evansville, Ind. 47715, Phone 424-3680

No. 80-1018

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980

EDEN H. POND,
EDNA H. BOBE,
CONSOLIDATION COAL COMPANY,
Appellants,

v.

ULYSSES G. WALDEN, JR.
CAROLYN SALLEE WALDEN,

Appellees,

LOUISE F. SHORT,
Intervenor.

JOINT APPENDIX

TABLE OF CONTENTS

Page
RELEVANT DOCKET ENTRIES OF GIBSON
COUNTY CIRCUIT COURT [Trial Court) .......... l
RELEVANT DOCKET ENTRIES OF INDIANA ,
SUPREME COURT .........ccccccecceeeeeeeeees 3
AGREED STATEMENT OF FACTS [Complaint] ....... 4
WARRANTY DEED [Exhibit “A” to Agreed
Statement of Facts] ..........ccceceeseeceeeeees 10
WARRANTY DEED [Exhibit “B” to Agreed
Statement of Facts] ..........scsecceeeeceeeeeee 12
WARRANTY DEED [Exhibit “C” to Agreed
Statement of Facts] ..........ccceceeeeeceeeeees 13
COAL MINING LEASE [Exhibit “D” to Agreed
Statement of Facts] ...........ccceeeeeeeceeeees 15
NOTICE OF LAPSE OF MINERAL INTEREST
{Exhibit “E” to Agreed Statement of Facts) ......... 22
PUBLISHER’S AFFIDAVIT [Exhibit “F” to
Agreed Statement of Facts) ..........00cceeeceees 24
LETTER OF. NOTIFICATION [Exhibit “G” to
Agreed Statement of Facts] ...........cceeseeeees 25
CONSTITUTIONAL PROVISIONS AND STAT-
UTES INVOLVED [Exhibit “H” to Agreed
Statement of Facts] .........0cccccecceecceeeees 26

SUBMISSION OF AGREED CASE ..........6.+00005 29

ii
TABLE OF CONTENTS (continued)

MEMORANDUM OPINION AND JUDGMENT
ON AGREED CASE [Trial Court] ................ 33

_ OPINION OF THE SUPREME COURT OF INDIANA ... 37

SUPREME COURT OF THE UNITED STATES
ORDER GRANTING REVIEW OF CASE .......... 49

RELEVANT DOCKET ENTRIES OF
GIBSON COUNTY CIRCUIT COURT (Trial Court)

January 12, 1978-- Come now the Plaintiffs by James M.

Buthod and come also the Defendants
by Charles R. Nixon and file Agreed
Statement of Facts [Complaint] relative
,to the above entitled cause of action.

January 12, 1978--" Come now the Plaintiffs by James M.

March 3, 1978 - -

April 19, 1978 - -

June 2, 1978 - -

Buthod and come also the Defendants
by Charles R. Nixon and file Submission
of Agreed Case relative to the above en-
titled action.

Cause comes on for hearing as to an
agreed controversy pursuant to L.C.
34-1-29-1 et seq. and the Court ORDERS
the parties to file briefs on the law, the
Court taking same under advisement.
Plaintiffs shall have 21 days to file Brief,
defendants shall have 21 days to answer
and plaintiffs shall have 10 days to reply.
Clerk ordered to certify copy of this
order to the Attorney General of the
State of Indiana.

Comes now the attorneys for Walden
and Walden and request an Extension of
Time to and including Monday, April
24, 1978, within which to file their
Reply Brief heretofore ordered filed
within 21 days after the filing of the
Brief of Consolidation Coal Company,
Pond and Bobe. Granted.

Come now the parties by counsel for
argument on Plaintiffs’ Reply Brief in
Response to Defendants’ Trial Brief.
Court now notes the filing by Plaintiff
of Brief in Response to State’s Amicus
Curiae Brief. Issues are now submitted
to the Court.

2

June 8, 1978 -- Louise F. Short files Petition to
Intervene pursuant to Trial Rule 24
(B), and no objection being heard by
the Court at chis time, the petition
is granted. Intervenor files Brief
in this cause.

July 25, 1978 -- Court now enters the following order:
IT IS, THEREFORE, ORDERED,
ADJUDGED AND DECREED by
this Court that there be judgment
for the plaintiffs herein and against
the defendants, that plaintiffs shall
recover their costs expended, that
plaintiffs, Eden H. Pond and Edna
H. Bobe, are declared to be the equal
Owners as tenants in common of
the mineral rights in the real estate
in question pursuant to the agreed
facts, and Consolidation Coal Com-
pany is the holder of a valid and sub-
sisting lease covering said interests.
Judgment accordingly. cc: of Order
to all attorneys of record.

October 11,1978-- Come now the defendants, by
counsel, and file Praecipe for Tran-
script of Record for Use on Appeal.

October 3, 1980-- Comes now the Clerk of the Su-
preme Court and Court of Appeals
and files Official Opinion of the
Supreme Court of the State of
Indiana which is in words and

(H.I. Judgment of the Indiana Su-
preme Court submitted herewith on
page 37)

December 5, 1980 -- Come now Eden H. Pond. Edna H.
Bobe and Consolidation Coal Com-
pany and file Notice of Appeal to

3

the Supreme Court of the United States
and Affidavit of Mailing and Proof of
Service.

RELEVANT DOCKET ENTRIES OF
INDIANA SUPREME COURT

January 26, 1979 --
January 4, 1980 - -

January 23, 1980 - -

July 12, 1980 - -

September 24, 1980 - -
December 5, 1980 - -

Record of Proceedings [docketed] .
Under Appellate Rule 10, Petition for
Oral Argument is Granted. Givan, C. J.
- - Oral Argument set for Tuesday,
January 29, 1980, at 1:30 p.m., % hour
on each side. -- Givan, C.J.
Judgments reversed and causes re-
manded for enforcement of the Act -
DeBruler, J., Givan, C.J., Hunter.
Prentice and Pivarnik, J. J., concur.
Appellee’s Petition for Rehearing (9),
Brief in Support (9), Notice (2), Affida-
vit of Mailing and Proof of Service (2).
Petition for Rehearing Denied. Givan,
CJ.

Notice of Appeal to the Supreme
Court of the United States (2), Affi-
davit of Mailing and Proof of Service
(2).

STATE OF INDIANA )

EDEN H. POND )
EDNA H. BOBE )
CONSOLIDATION COAL )
COMPANY )
Plaintiffs ) CAUSE NO. C-78-17
)
vs. ) Filed January 12, 1978
) Russell Kern
ULYSSES G. WALDEN, JR. ) Clerk of the Gibson
CAROLYN SALLEE WALDEN ) Circuit Court
)

AGREED STATEMENT OF FACTS

The undersigned, Eden H. Pond, Edna H. Bobe, Consoli-
dation Coal Company, Ulysses G. Walden, Jr. and Carolyn
Sallee Walden, being all of the parties in the above entitled
matter, as and for their Agreed Statement of Facts made out
and signed by each of said parties in accordance with the pro-
visions of Indiana Code 1971, Section 34-1-29-1, do hereby
each stipulate, agree and represent the following to constitute
a true, complete and accurate statement of all facts relevant
to the existence and resolution of the controversy between
the parties relating to the ownership of the mineral estate in
and to the following described real estate situate in Gibson
County, State of Indiana, more fully described as follows,
to-wit:

A part of the West Half of the Northwest Quarter
of Section 34, Township 1 South, Range 10 West,
bounded as follows: BEGIN at a point 25 feet

5

South of the Northwest corner of said half quarter
section and run thence East to a point which is 25
feet West of the East line thereof; thence South
to a point which is 10 rods South of the North
line thereof; thence East 25 feet; thence South
to the Southeast corner thereof; thence West to
the Southwest corner thereof; thence North to
the place of beginning, containing 79 acres, more
or less,

and that the same comprise the entire Statement of Facts upon
which said controversy is submitted to the Court for determina-
tion, said agreed facts being as follows:

1. On March 1, 1954, and for several years prior
thereto, Clara M. Haper, Eden H. Pond and Edna H. Bobe
were the owners, as tenants in common, each owning
an undivided one-third interest, of the entire fee simple
title in and to the following described lands in Gibson
County, Indiana, to-wit:

The West Half of the Northwest Quarter
of Section 34, Township 1 South, Range
10 West of the 2nd Principal Meridian.

2. On said date, March 1, 1954, the said Clara M.
Haper, a widow, Eden H. Pond and Eddie Pond, her
husband, and Edna H. Bobe and Raymond W. Bobe, her
husband, as Grantors, made, executed and delivered to
Ulysses Walden and Mildred Walden, his wife, as Gran-
tees, their certain warranty deed to the above described
lands, which deed is recorded in Book 139 at page 169 in
the Office of the Recorder of Gibson County, Indiana,
and which deed contained a reservation of the mineral
estate to the Grantors in the form shown by a copy of
said deed, attached hereto as Exhibit “A”.

3. Thereafter, under date of February 25, 1957, the
said Grantors made, executed and delivered unto the
same Grantees a certain correction warranty deed,

a copy thereof, satiched anetibas Msoueat “B”.

4. Thereafter, under date of August 13, 1959, Ulysses
G. Walden and Mildred Walden, husband and wife, as
Grantors, made, executed and delivered to Ulysses G.
Walden, Jr. and Carolyn Sallee Walden, husband and wife,
as Grantees, their certain warranty deed covering a part
of the West Half of the Northwest Quarter of Section 34,
Township 1 South, Range 10 West, bounded as follows:
BEGIN at a point 25 feet South of the Northwest corner
of said half quarter section and run thence East to a
point which is 25 feet West of the East line thereof;
thence South to a point which is 10 rods South of the
North line thereof; thence East 25 feet; thence South to
the Southeast corner thereof; thence West to the South-
west corner thereof; thence North to the place of begin-
ning, containing 79 acres, more or less, attached hereto
as Exhibit “C”, which deed was thereafter recorded in
Book 153, page 296, in the Office of the Recorder of
Gibson County, Indiana.

5. Thereafter, about the year 1958, the said Clara M.
Haper died intestate, leaving as her sole and only heirs
at law, her daughters, Eden H. Pond and Edna H. Bobe,
who succeeded to the entire estate of Clara M. Haper
with respect to the real estate above described; and
the said Eden H. Pond and Edna H. Bobe are now, and
have been since the death of the said Clara M. Haper,
the owners as tenants in common, in equal proportions,
of the entire mineral estate reserved by prior conveyances
as above set forth, insofar as such reserved interests
remain in force and effect.

6. Thereafter, under date of June 17, 1976, Eden
H. Pond, Edna H. Bobe and Raymond W. Bobe, her
husband, as Lessors, made, executed and delivered unto
Consolidation Coal Company, as Lessee, a certain Coal

7

Mining Lease covering the Southwest Quarter of the
Northwest Quarter of Section 34, Township 1 South,
Range 10 West, Gibson County, Indiana, a copy of which
lease is attached hereto as Exhibit “D”, and which lease
was recorded in Miscellaneous Drawer 2, on Card 7648,
in the Office of the Recorder of Gibson County, Indiana.

7. On March 4, 1977, by notice dated March 2, 1977,
Ulysses Grant Walden, Jr. and Carolyn Sallee Walden gave -
written notice to Edna H. Bobe and Eden H. Pond,
entitled “Notice of Lapse of Mineral Interest”, a copy of
which notice is attached hereto as Exhibit “E”.

8. Said “Notice of Lapse of Mineral Interest” was
published in the Princeton Daily Clarion one time, on
March 4, 1977, as evidenced by the Publisher’s Affidavit
attached hereto and marked Exhibit “F”.

9. Under date of May 27, 1977, Charles R. Nixon, as
attorney for Ulysses Grant Walden, Jr., notified Con-
solidation Coal Company in writing of the claim of
Ulysses Grant Walden, Jr., a copy of said letter of noti-
fication being attached hereto as Exhibit “G”.

10. In the year 1971, the General Assembly of the
State of Indiana enacted a certain statute, generally
designated as the Mineral Lapse Act or the Dormant
Minerals Act, which provisions were thereafter codified as
Indiana Code, 1971, Section 32-5-11-1 through 32-5-11-8,
which Act became effective with the promulgation of the
acts of the General Assembly for the year 1971 early in
the month of September, 1971. A copy of the provisions
of said Act are, for convenience of reference, attached
hereto as Exhibit “H”.

11. Plaintiffs have not at any time filed a statement
of claim as provided for in said Mineral Lapse Act.

12. None of Plaintiffs have done or performed any
acts which would constitute the “use” of the reserved
mineral estate, as the term “use” is defined in Indiana
Code 1971, Section 32-5-11-2. None of Plaintiffs have
paid any taxes with respect to said reserved mineral estate
nor have taxes been separately assessed with respect to
said reserved mineral estate at any time.

13. Consolidation Coal Company has compiied with
all the terms, conditions and provisions necessary to keep
its Coal Mining Lease in full force and effect with respect
to the interests of Eden H. Pond and Edna H. Bobe, and
the same is a valid and subsisting lease covering said
interests as the same may eventually be established.

14. The reservation of the mineral estate contained in
Exhibit “A” and Exhibit “B” attached hereto was
intended to and was sufficient to reserve the entire
mineral estate with respect to both coal and other solid
minerals and oil, gas and other fugacious minerals and
was a valid reservation thereof at the time such reserva-
tion was made.

15. With the exception of Exhibit “H”, which is here-
by stipulated to be a true, correct and accurate copy of
the provisions of the Indiana Mineral Lapse Act as the
same appear in Burns Indiana Statutes Annotated, Code
Edition, Sections 32-5-11-1 through 32-5-11-8, each of
the Exhibits attached hereto is hereby stipulated to
be a true, correct and accurate copy of the document
which it purports to be; and each of said documents is
stipulated to be authentic and the signatures thereon to
be genuine; and each of said documents is stipulated to
be a valid and subsisting instrument in accordance with
the tenor thereof.

16. The Plaintiffs, Eden H. Pond and Edna H. Bobe,
are the owners, as tenants in common, in equal propor-
tions, of the entire mineral estate in and to the above
described real estate, subject only to the Coal Mining
Lease to Consolidation Coal Company on a portion
thereof, unless their interest therein has been termi-
nated by operation of the Mineral Lapse Act, above
designated; and each of said Plaintiffs assert that said
Mineral Lapse Act is inoperative to terminate the interest
of said Plaintiffs by reason of its unconstitutionality,
inapplicability and otherwise as more fully set forth in
the brief of said Plaintiffs.

17. Defendants assert that the provisions of the
Mineral Lapse Act have terminated all rights of Plaintiffs

9

with respect to the mineral estate in and to the lands
above described, and that by reason thereof, such mineral
estate has reverted to the estate from which it was carved,
said estate from which it was carved being now owned
solely by Defendants as tenants by the entireties; and
Defendants assert the constitutionality and applicability
of said Mineral Lapse Act as more fully set forth in
the brief of Defendants

The parties further stipulate that the sole issue for determina-
tion in this cause is the constitutionality of the provisions of
Indiana Code 1971, Section 32-5-11-1 through 32-5-11-8,
inclusive, under the Constitutions of the United States of
America and of the State of Indiana and under each and all
of the applicable provisions of said Constitution as such pro-
visions of the Indiana Code 1971 may be applied or be appli-
cable to the Agreed Statement of Facts above set forth. If
such provisions are constitutional and applicable with respect
to grants or reservations made prior to the effective date of
the Act, then Defendants must prevail and all title of Plain-
tiffs with respect to the subject real estate will have terminated.
If, on the other hand, the provisions of said Indiana Code
Sections are unconstitutional as applied to the Agreed State-
ment of Facts, then Plaintiffs must prevail and Defendants’
rights with respect to the subject real estate are subject to
the mineral reservations heretofore made and now owned
by Plaintiffs, to the extent of the form and manner of such
reservations.

Each of the undersigned parties therefore stipulate that
the above and foregoing constitutes an Agreed Statement of
Facts upon which the said controversy among the parties
shall be determined, each of such parties executing this Agreed
Statement of Facts on the dates set opposite their respective
signatures below.

10

November 17, 1977 /S/ Eden H. Pond

DATE Eden H. Pond.
November 17, 1977 /S/ Edna H. Bobe
DATE Edna H. Bobe

CONSOLIDATION COAL COMPANY
December 2, 1977 By: /S/ George G. Schneider

DATE Senior Vice President
December 12, 1977 /S/ Ulysses G. Walden, Jr.
DATE Ulysses G. Walden, Jr.
December 12, 1977 /S/ Carolyn Sallee Walden
DATE Carolyn Sallee Walden
EXHIBIT “A”
To Agreed Statement of Facts

WARRANTY DEED

THIS INDENTURE WITNESSETH, That Clara M. Haper,
widow, Eden H. Pond and Eddie C. Pond, her husband, of
Gibson County, Edna H. Bobe and Raymond W. Bobe, her
husband, of Knox County, all in the State of Indiana

CONVEY AND WARRANT

to Ulysses Walden and Mildred Walden, his wife, of Gibson
County, in the State of Indiana, for the sum of One Dollar
and other valuable consideration, the receipt whereof is hereby
acknowledged, the following described real estate, situate in
Gibson County, in the State of Indiana, to-wit:

The West one-half of the Northwest Quarter of
Section Number Thirty-Four (34), Township One

(1) South, Range Ten (10) West, containing eighty
acres more or less. Provided always the grantors
reserve unto themselves all mineral rights under-
lying the above described real estate with the right
to explore the same, and to sell the same and
remove them from said real estate, without any
charge whatever. The Grantees assume and agree
to pay the taxes assessed against real estate for
the year 1954 and payable May and September
of said year and thereafter. Provided always, again
that any Lessee or the Grantors herein for the
purpose of developing and/or exploring any and
all mineral rights underlying the above described
real estate shall pay to the Grantees all damages
done to the above real estate by reason of making
a road or roads over and through the above de-
scribed real estate which may be reasonable in
amount not to exceed One Hundred Dollars
($100.00) per acre.

IN TESTIMONY WHEREOF, the said Clara M. Haper, widow,
Eden H. Pond and Eddie C. Pond, her husband, Edna H. Bobe
and Raymond W. Bobe, her husband, have hereunto set their
hands and seals this Ist day of March 1954.

/S/ Clara M. Haper /S/ Edna H. Bobe
Clara M. Haper Edna H. Bobe

/S/ Eden H. Pond /S/ Raymond W. Bobe
Eden H. Pond Raymond W. Bobe

/S/ Eddie C. Pond
Eddie C. Pond

(Acknowledgement omitted)

12

EXHIBIT “B”
To Agreed Statement of Facts

WARRANTY DEED

THIS INDENTURE WITNESSETH that Clara M. Haper,
a widow, Eden H. Pond and Eddie C. Pond, her husband, of
Gibson County, State of Indiana, and Edna H. Bobe and Ray-
mond W. Bobe, her husband, of Knox County, State of Indiana,
Convey and Warrant to Ulysses Walden and Mildred Walden,
his wife, of Gibson County, State of Indiana, for the sum of
One Dollar ($1.00) and other valuable consideration, the
receipt whereof is hereby acknowledged, the following de-
scribed real estate situated in Gibson County, in the State
of Indiana, to-wit:

The West Half of the Northwest Quarter of Section
34, Township 1 South, Range 10 West containing
80 acres, more or less; provided always the Gran-
tors reserve unto themselves all mineral rights
underlying the above described real estate with
the right to explore the same and to sell the same
and remove them from said real estate without any
charge whatever; provided always again that any
Lessee of the Grantors herein for the purpose of
developing and/or exploring any and all mineral
rights underlying the above described real estate,
shall pay the Grantees all damages done to the
above real estate, and to any improvements there-
on, including any road or roads over and through
the above described real estate which may be
reasonable in an amount not to exceed $100.00
per acre.

This deed is made to correct an error relative to the item
of damages, if any, caused in the future by the developing and/
or exploring for any minerals underlying said real estate, such
former deed bearing date of March 1, 1954, and recorded in
‘Deed Record 139, page 169, in the Office of the Recorder of

13

said county, it having been the intention of the parties by such
prior deed to convey and include the damages hereinabove set
forth.

In testimony whereof, the said Clara M. Haper, widow,
Eden H. Pond and Eddie C. Pond, her husband, and Edna H.
Bobe and Raymond W. Bobe, her husband, have hereunto set
their hands and seals this 25th day of February, 1957.

/s/ Clara M. Haper /S/ Edna H. Bobe
Clara M. Haper Edna H. Bobe

/S/ Eden H. Pond /S/ Raymond W. Bobe
Eden H. Pond Raymond W. Bobe

/S/ Eddie C. Pond
Eddie C. Pond

(Acknowledgement Omitted)

EXHIBIT “C”
To Agreed Statement of Facts

WARRANTY DEED

THIS INDENTURE WITNESSETH, That Ulysses G. Walden
and Mildred Walden, husband and wife, of Gibson County,
in the State of Indiana

CONVEY AND WARRANT

to Ulysses G. Walden, Jr. and Carolyn Sallee Walden, husband
and wife, of Gibson County, in the State of Indiana, for and
in consideration of One Dollar ($1.00), the receipt whereof
is hereby acknowledged, the following described real estate
in Gibson County, in the State of Indiana, to-wit:

14

A part of the West Half of the Northwest Quarter
of Section 34, Township 1 South, Range 10 West,
bounded as follows: BEGIN at a point 25 feet
South of the Northwest corner of said half quarter
section and run thence East to a point which is
25 feet West of the East line thereof; thence South
to a point which is 10 rods South of the North
line thereof; thence East 25 feet; thence South to

Also, a strip of ground of the uniform width of
12% feet off of the West side of the East Half of
the Northwest Quarter of Section 34, Township
1 South, Range 10 West, the West line of which

West line of said half quarter

lands dated January 21, 1959, and acknowledged
and recorded on said day in Mortgage Record
180, at page 453, of the records in the Office of
the Recorder of Gibson County, in the State of
Indiana, the same being in the original principal
sum of $12,324.00, and upon which there is now
due and upaid the sum of $12,050.92 and said

15

The grantees agree to pay the taxes against the
real estate described in said mortgage beginning
with the November installment of the 1958 taxes,
payable to November, 1959, and thereafter.

IN WITNESS WHEREOF, the said Ulysses G. Walden and
Mildred Walden, husband and wife, have hereunto set their
hands and seals, this 13th day of August, 1959.

/S/ Ulysses G. Walden
Ulysses G. Walden

/S/ Mildred Walden
Mildred Walden

(Acknowledgement Omitted)

EXHIBIT “D”
To Agreed Statement of Facts

FORM L 76 (1)
COAL MINING LEASE

THIS LEASE, made this 17th day of June, 1976, BETWEEN
Eden H. Pond, a widow, and Edna H. Bobe and Raymond W.
Bobe, her husband, whose address is 613 S. Prince Street,
Princeton, Indiana, hereinafter called the “Lessor” and CON-
SOLIDATION COAL COMPANY whose address is 3300 One
Oliver Plaza, Pittsburgh, Pennsylvania 15222, hereinafter
called the “‘Lessee”’.

1. LEASE OF COAL AND EXPLORATION RIGHTS:
Lessor, for and in consideration of the sum of Two Hundred
and No/100 Dollars ($200.00) advance royalty in hand paid,
and of the royalties to be paid by Lessee and the agreements
to be performed by Lessee, does hereby grant, lease and let
exclusively unto Lessee, its successors and assigns, all of the
coal and other materials which are necessarily removed in the

*.

16

coal mining process (the “‘coal”’) in and underlying the follow-
ing described lands situated in Gibson County, Indiana, to-wit:

The Southwest Quarter of the Northwest Quarter
of Section 34, Township 1 South, Range 10 West.

CONTAINING 40 acres, more or less, (hereinafter called the
“premises”). Premises shall also include all of the coal in
and under all land or interests therein owned or claimed by
Lessor contiguous or appurtenant to said described lands. TO-
GETHER WITH the exclusive right of Lessee (alone or con-
jointly with coal under neighboring lands) to mine and remove
all of said coal and the free and uninterrupted right and right-
of-way into, through and under the said land at such points
and in such manner as may be convenient or necessary for
the purpose of all operations in said coal and in the horizons
thereof, and the strata above or below the same, and in other
coal now owned or leased or hereafter acquired by Lessee,
its successors or assigns, including the right to explore, test
drill, dig, mine, drain, ventilate, transport and carry away said
coal and other materials and other coal and materials now
owned or leased or which may hereafter be acquired by Lessee,
its successors or assigns, by any mining methods or machiniry
now or hereafter employed without being required to lease
or provide subjacent or sublateral support for the overlying
strata or surface or anything therein, thereon or thereunder.
Lessee shall have the right to enter upon the surface of the
land, to operate, maintain and finally remove such facilities
and services (including but not limited to those required to
provide power, communication, transportation, ventilation
and drainage) as may be necessary or convenient for the pro-
secution of the mining operations hereunder, with rights of
ingress, egress and regress to and from the same. Water pipe
lines shall be buried by Lessee below plow depth, and wherever
practical boreholes and other facilities shall be located near
fence and property lines. Lessee shall pay for damage caused
by it to the growing crops on the leased premises. It is under-
stood and agreed that the rights hereinbefore mentioned are
in enlargement and not in restriction of the rights incidental

17

to the ownership of said coal.

2. TERM: Unless sooner terminated as herein provided,
this lease is for an initial term of 20 years from date (and, if
extended as provided in paragraph 3, for an additional term
of 20 years) and so long thereafter as mining operations are
being conducted by or for Lessee on, or within ten miles of
any boundary of the premises.

3. ADVANCE ROYALTIES: Until mining operations .
are commenced to remove the coal underlying the premises,
Lessee shall pay or tender to Lessor as advanced royalty during
the initial term the sum of $5.00 per acre for the first year of
this lease, and thereafter the sum of $2.00 per acre per year
commencing one year from the date hereof, with a like pay-
ment payable on or before each anniversary date of this lease
for the second through the nineteenth anniversary dates. If
mining operations have not been commenced on the premises
within 20 years from the date hereof, Lessee may further
extend the term of this lease by paying to Lessor on or before
the twentieth anniversary the sum of $10.00 per acre, and
thereafter on or before each subsequent anniversary date the
sum of $4.00 per acre until mining operations are commenced
on the premises. All advance royalties are fully recoupable
by Lessee from earned royalties.

4. EARNED ROYALTIES: After Lessee has com-
menced or caused to be commenced actual mining operations
in, and/or under the premises, all further liability for advanced
royalties shall forthwith terminate, and Lessee will thereupon
pay or credit to Lessor earned royalty for all coal mined and
sold from the premises the sum of 15¢ per ton of 2,000 pounds
or 2.5% of the average gross realization price f.o.b. mine,
whichever is the greater. Railroad weights shall be taken as the
basis for payment of such earned royalty when coal is loaded
and weighed on railroad cars, and when not so loaded and
weighed, then other fair and accurate weights and measure-
ments shall be taken as the basis for payment. Earned royalties
shall be paid or credited on or before the thirtieth day following
the close of any calendar month. The quantity and quality of
coal removed from the premises shall be in the sole discretion of

THT an BE He ELT
gees catte y TINT is: af .
Hib tile it lial yl
uta Tyee tet Hi Heetet
st THRE i genie
lads i al BBLAT RH]

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HALE bey : 33 : i ii
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ile

therein, then the royalties herein pro-
Lessor only in proportion which his
bears to the whole undivided fee. If any dispute shall
to Lessor’s ownership of the coal, Lessee may without
liability suspend payments until such ownership is finally
determined.

8. TAXES AND LIENS: Lessor covenants to pay all
taxes and assessments upon the land and the coal hereby

FE
z
Efs

gE

Hi

any delinquent mortgage, tax, lien, encumbrance, or assess-
ments on the premises, and same may be deducted from future
advance royalties or from earned royalties.

9. TERMINATION: If either Lessee or Lessor shall
default in the performance of any of the covenants, agreements
or provisions of this lease, and such default shall continue for
sixty (60) days after written notice of such default to the
aggrieved party to the other party, said aggrieved party shall
have the option of cancelling and terminating this lease. Lessee
shall have the right to terminate this lease (in whole or in part)
at any time by paying all royalties then due and giving Lessor
sixty (60) days written notice of such intention, In such
event, Lessee shall execute and record at Lessee’s expense, a
proper release of this lease, and except as otherwise herein
specifically provided both parties shall thereupon be released
from all obligations hereunder. Lessee shall have the right to
remove any of its property from the premises within one (1)
year after the termination of this lease. Lessee’s right to utilize
underground tunnels under the premises shall continue for so
long as mining operations are conducted on, or within ten miles
of, the premises.

10. NOTICES AND PAYMENTS: All payments herein
provided for may be made by mailing the same to Lessor or by
paying or tendering to Eden H. Pond, 613 S. Prince Street,
Princeton, Indiana 47670, or her successors, which shall con-

Lessor of a recordable instrument designating a different de-
the event payments are made directly to
not be held in default until sixty (60)

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BS

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k
sr

y notice required or permitted hereunder may be
personally or by certified or registered mail on the
the addresses shown above or such other address
unicated to the parties in writing. No change
ownership of the premises or royalties hereunder shall be
binding on Lessee until Lessor has furnished Lessee with either
the original recorded instrument of conveyance or a certified
copy thereof sufficient to show a complete chain of title in
the Lessor.
11. FORCE MAJEURE: Mining shail not be deemed to
have “terminated” or “ceased” and it shall be deemed that coal

aiff?

1
gs

fire, storm, flood, washout), by breakage or accident to machin-
ery or facilities, or by any cause beyond Lessee’s control, pro-
vided that Lessee shall exercise reasonable diligence to resume
mining operations. Lessee shall have the right to determine and
settle any strikes, lockouts or industrial disputes in its sole dis-
cretion, and the aforesaid requirement of exercising reasonable
diligence to resume mining shall not require Lessee to accede to
any demand or position of any other party involved in such
strike, lockout or industrial dispute.

12. PARTIES: This lease shall be binding upon and shall _

21

inure to the benefit of the parties hereto, their heirs, successors,
personal representatives and assigns. The Lessor does hereby
waive and release any rights of dower and homestead in the
premises insofar as such rights may in any way be affected
hereby. Whenever the context requires, the singular shall
include the plural, the plural the singular, and the use of any
gender shall be applicable to all genders. Unless otherwise
designated, any party who signs this lease shall be deemed a
Lessor whether or not named in the body of this lease, and
any party who signs this lease accepts its terms as to his or
its interest regardless of whether or not all named parties shall
execute this lease.

13. AMENDMENT: Paragraph 3 hereinabove is hereby
amended in that unless this lease is terminated as hereinpro-
vided Lessee will pay an advance royalty of $5.00 per acre
per year for 20 years and if extended for an additional 20
years Lessee will pay an advance royalty of $5.00 per acre
per year.

IN WITNESS WHEREOF, Lessor‘has executed this Coal Mining
Lease as of the day and date first above written.

[S/_ Eden H. Pond (Seal) /S/ Edna H. Bobe

S.S. Number 30°-10-0697 S.S. Number 308-40-4713

(Seal) /S/ Raymond W. Bobe

S.S. Number 311-18-6543

(Acknowledgement Omitted)

22

EXHIBIT “E”
To Agreed Statement of Facts

NOTICE OF LAPSE OF MINERAL INTEREST

TO: Edna H. Bobe
Main Street Rd.
Vincennes, Indiana 47591

Eden H. Pond
613 S. Prince St.
Princeton, Indiana 47670

1. The undersigned, successors in interest to the mineral
interest hereinafter described, hereby give notice pursuant to
Indiana Code 1971, 32-5-11-6 as added by Acts 1971, Public
Law 423, § 1, p. 1970, in order to extinguish of record the
mineral interest hereinafter described by reason of a lapse
thereof under the provisions of said act.

2. The interest extinguished is that interest created by
a reservation in favor of the Grantors in that certain Warranty
Deed dated March 1, 1954, and recorded in Deed Record 139,
Page 169, in the Office of the Recorder of Gibson County,
Indiana, wherein Ulysses Walden and Mildred Walden, husband
and wife, were Grantees and Clara M. Haper, widow, Eden H.
Pond and Eddie C. Pond, her husband, and Edna H. Bobe and

The West Half of the Northwest Quarter of Section
34, Township 1 South, Range 10 West, containing
eighty (80) acres, more or less.

3. The Owners of such mineral interest, as shown of
record, now are Edna H. Bobe and Exien H. Pond.

23

4. The undersigned are now the owners of the following
described real estate located in Gibson County, in the State of
Indiana, to-wit:

A part of the West Half of the Northwest Quarter
of Section 34, Township 1 South, Range 10 West,
bounded as follows: BEGIN at a point 25 feet
South of the Northwest corner of said half quarter
section and run thence East to a point which is
25 feet West of the East line thereof; thence South
to a point which is 10 rods South of the North
line thereof; thence East 25 feet; thence South
to the Southeast corner thereof; thence West to
the Southwest corner thereof; thence North to
the place of beginning, containing 79 acres, more
or less.

which includes a part of the real estate described in paragraph
2 above. ;

5. The records in the Office of the Recorder of Gibson
County, Indiana, show that you have not filed in the Office
of said Recorder a statement of claim as required by the pro-
visions of the Indiana Code 1971, 32-5-11-4 as added by Acts
1971, Public Law 423, § 1, p. 1970.

6. This notice is given by the undersigned, the owners
in fee simple of the above described real estate.

DATED this 2nd day of March, 1977.

S sses Grant Walden, Jr.
ULYSSES GRANT WALDEN, JR.

S/ Carolyn Sallee Walden
CAROLYN SALLEE WALDEN

24

EXHIBIT “F”
To Agreed Statement of Facts

PUBLISHER’S AFFIDAVIT

.» STATE OF INDIANA )
) SS:
COUNTY OF GIBSON )

Personally appeared before me, a Notary Public, in and
for said County and State, the undersigned Edward C. Cochrane
who, being duly sworn, says that he is Publisher of the Prince-
ton Daily Clarion, a daily newspaper of general circulation
printed and published in the English language in the City of
Princeton, Indiana, in state and county aforesaid, and that
the printed matter attached hereto is a true copy, which was
duly published in said paper for 1 time, the dates of publication
being as follows: March 4, 1977.

/S/_ Edward C. Cochrane

Subscribed and sworn to before me this 4th day of
March, 1980.

/S/ Jean Harder
Notary Public

My commission expired 9-9-80.

25

EXHIBIT “G”
To Agreed Statement of Facts

Law Offices
McDONALD, McDONALD & NIXON
Box 400
120 South Main Street
PRINCETON, INDIANA
47670

May 27, 1977

Consolidation Coal Company
3300 One Oliver Plaza
Pittsburgh, Pennsylvania 15222

In Re: Coal Mine Lease with Edna H. Bobe
and Eden H. Pond as Lessors

Gentlemen:

Our office represents Ulysses Grant Walden, Jr., the
owner of certain real estate in Gibson County, Indiana, on
which your comp’ y took a coal mining lease from the above
Lessors.

On March 4, 1977, Ulysses Grant Walden, Jr., served
Notice of Lapse of Mineral Interest on Edna H. Bobe and Eden
H. Pond pursuant to Indiana Code 1971 32-5-11-4. More than
sixty (60) days have now elapsed and no statement of claim
has been filed by the record owners of that mineral interest
namely, Eden H. Pond and Edna H. Bobe. Their interest,
therefore, elapsed.

At the time you obtained this lease, the Lessors’ interest
in the minerals had lapsed all of which your company knew
about and accordingly the Lessors in that Lease had no interest
to lease.

Therefore, this letter is a demand that you execute a

26

Release of the coal mining lease and remove the cloud from the
title of Ulysses Grant Walden, Jr. and his wife. If this is not
done on or before June 10, 1977, we shall assume that it will
be necessary to file a Quiet Title Action.

Thank you.

Very truly yours,
McDONALD, McDONALD & NIXON

By /S/ Charlies R. Nixon
Charles R. Nixon

CRN/gs

EXHIBIT “H”
To Agreed Statement of Facts

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED

32-5-11-1 [46-1808]. Lapse of mineral interest - Preven-
tion. - Any interest in coal, oil and gas, and other minerals,
shall, if unused for a period of 20 years, be extinguished, unless
a statement oO! ciaum is Iled IN accordance Wil secuon Live
[32-5-11-5] hereof, and the ownership shall revert to the then
owner of the interest out of which it was carved. [IC 32-5-11-1,
as added by Acts 1971, P.L. 423, § 1.]

32-5-11-2 [46-1809]. Mineral interest - Definition. - A
mineral interest shall be taken to mean the interest which is
created by an instrument transferring, either by grant, assign-
ment, or reservation, or otherwise an interest, of any kind,
in coal, oil and gas, and other minerals. {IC 32-5-11-2, as
added by Acts 1971, P.L. 423, 8 1.]

32-5-11-3 [46-1810]. Use of mineral interests - Defini-
tion. - A mineral interest shall be deemed to be used when
there are any minerals produced thereunder or when operations
are being conducted thereon for injection, withdrawal, storage

27

or disposal of water, gas or other fluid substances, or when
rentals or royalties are being paid by the owner thereof for
the purpose of delaying or enjoying the use or exercise of such
rights or when any such use is being carried out on any tract
with which such mineral interest may be unitized or pooled
for production purposes, or when, in the case of coal or other
solid minerals, there is production from a common vein or
seam by the owners of such mineral interests, or when taxes
are paid on such mineral interest by the owner thereof. Any '
use pursuant to or authorized by the instrument creating
such mineral interest shall be effective to continue in force
all rights granted by such instrument. [IC 32-5-11-3, as added
by Acts 1971, P.L. 423, $1.]

32-5-11-4 [46-1811]. Statement of claim - Filing - Re-
quirements. - The statement of claim provided in section one
[32-5-11-1] above shall be filed by the owner of the mineral
interest prior to the end of the twenty-year period set forth
in section two [one] [32-5-11-1] or within two [2] years
after the effective date [September 2, 1971] of this act, which-
ever is later, and shall contain the name and address of the
owner of such interest, and description of the land, on or
under which such mineral interest is located. Such statement
of claim shall be filed in the office of the recorder of deeds
in the county in which such land is located. Upon the filing
of the statement of claim within the time provided, it shall
be deemed that such mineral interest was being used on the
date the statement of claim was filed. [IC 32-5-11-4, as added
by Acts 1971, P.L. 423, 8 1; 1972, P.L. 11,815.)

32-5-11-5 [46-1812]. Extinguishment of mineral interest
- Exceptions. - Failure to file a statement of claim within
the time provided in section 4 [32-5-11-4] shall not cause a
mineral interest to be extinguished if the owner of such mineral
interest:

(1) Was at the time of the expiration of the period
provided in section four [32-5-11-4], the owner of ten
{10} or more mineral interests, as above defined, in
the county in which such mineral interest is located,
and; ;

28

(2) Made diligent effort to preserve all of such in-
terests as were not being used, and did within a period of
ten [10] years prior to the expiration of the period
provided in section four [32-5-11-4] preserve other
mineral interests, in said county, by the filing of state-
ments of claim as herein required, and;

(3) Failed to preserve such interest through inad-
vertence, and;

(4) Filed the statement of claim herein required,
within sixty [60] days after publication of notice as
provided in section seven [32-5-11-7] herein, if such
notice is published, and if no such notice is published,
within sixty [60] days after receiving actual knowledge
that such mineral interest had lapsed. [IC 32-5-11-5,
as added by Acts 1971, P.L. 423, 81.]

32-5-114 [46-1813]. Successor in interest - Notice
requirements - Prima facie evidence. - Any person who will
succeed to the ownership of any mineral interest, upon the
lapse thereof, may give notice of the lapse of such mineral
interest by publishing the same in a newspaper of general cir-
culation in the county in which such mineral interest is located,
and, if the address of such mineral interest owner is shown of
record or can be determined upon reasonable inquiry, by
mailing within ten [10] days after such publication a copy of
such notice to the owner of such mineral interest. The notice
shall state the name of the owner of such mineral interest, as
shown of record, a description of the land, and the name of
the person giving such notice. If a copy of such notice, to-
gether with an affidavit of service thereof, shall be promptly
filed in the office of the recorder of deeds in the county where-
in such land is located, the record thereof shall be prima facie
evidence, in any legal proceedings, that such notice was given.
{IC 32-5-1 1-6, as added by Acts 1971, P.L. 423,81.]

32-5-11-7 [46-1814]. Statement of claim - Filing - Re-
corder’s duty. - Upon the filing of the statement of claim,
provided for in section 4 [32-5-11-4] of this chapter or the
proof of service of notice as provided in section seven [six]
{32-5-11-6] of this chapter in the recorder’s office for the

29

county where such interest is located, the Recorder shall record
the same in a book to be kept for that purpose, which shail be
known as the “Dormant Mineral Interest Record” and shall
indicate by marginal notation on the instrument creating the
original mineral interest the filing of the statement of claim
or affidavit of publication and service of notice. [IC 32-5-11-7,
as added by Acts 1971, P.L. 423, 8 1.]

32-5-11-8 [46-1815]. Waiver of chapter’s provisions -
Time limit. - The provisions of this chapter may not be waived —
at any time prior to the expiration of the twenty [20] year
period provided in section 1 [32-5-11-1]. [IC 32-5-11-8, as
added by Acts 1971, P.L. 423, 81.]

ULYSSES G: WALDEN, JR.
CAROLYN SALLEE WALDEN
Defendants

EDEN H. POND )
EDNA H. BOBE )
CONSOLIDATION COAL ) CAUSE NO. C-78-17
COMPANY )
Plaintiffs ) Filed January 12, 1978
) Russell Kern
vs. ) Clerk of the
) Gibson Circuit Court
)
)
)

SUBMISSION OF AGREED CASE

Come now the Plaintiffs by James M. Buthod of the
Law Offices of James M. Buthod, attorneys for Plaintiffs,
and come also the Defendants by Charles R. Nixon, of the

30

Law Offices of McDonald, McDonald and Nixon, attorneys
for Defendants (said parties being respectively designated
“Plaintiffs” and “Defendants” for convenience of reference,
notwithstanding the submission hereof as an Agreed Case),
and pursuant to the provisions of Indiana Code 1971, Sections
34-1-29-1 and following, the said parties submit to the Court
as an Agreed Case a matter of controversy between Plaintiffs
and Defendants, to-wit:

Determination and declaration of the ownership of the
mineral estate in and to the following described real
estate situate in Gibson County, State of Indiana, more
fully described as follows, to-wit:

A part of the West Half of the Northwest
Quarter of Section 34, Township 1 South,
Range 10 West, bounded as follows: BEGIN
at a point 25 feet South of the Northwest
corner of said half quarter section and run
thence East to a point which is 25 feet
West of the East line thereof; thence South
to a point which is 10 rods South of the
North line thereof; thence East 25 feet;
thence South to the Southeast corner
thereof; thence East 25 feet; thence South
to the Southeast corner thereof; thence
West to the Southwest corner thereof;
thence North to the place of beginning,
containing 79 acres, more or less,

as more fully set forth in the Agreed Statement of
Facts made out and signed by the parties and attached
hereto.

Attached hereto and made a part of this submission are each
of the following:

1. The Agreed Statement of Facts made out and signed
by the parties, together with the exhibits attached there-

31

to, which exhibits are stipulated to be true and correct
copies of the instruments which they respectively pur-
port to be.

2. Affidavits by each of the parties that the controversy
here involved is real and that these proceedings are
brought in good faith to determine such controversy.
3. Appearances by the respective parties in person and
appearances of counsel, and waiver of the insurance and .
service of process by each of the parties, whether desig-
nated as Plaintiffs or Defendants.

Inasmuch as‘ Plaintiffs allege the unconstitutionality of
a certain statute of the State of Indiana, being the so-called
Mineral Lapse Act or Dormant Minerals Act, Indiana Code
1971, Sections 32-5-11-1 through 32-5-11-8, inclusive, and
seek declaratory relief, therefore in accordance with the Indiana
Code Section 34-4-10-11, the Attorney General of the State
of Indiana has been served with a copy of these proceedings
and is entitled to be heard herein.

The parties, therefore, pray the Court to determine,
upon the basis of the Agreed Statement of Facts and Exhibits
attached thereto, the constitutionality of the provisions of
Indiana Code 1971, Sections 32-5-11-1 through 32-5-11-8,
inclusive, as the same may be applied to the Agreed Facts
herein, to declare the rights of the respective parties with
respect to the ownership of the mineral estate in and to the
above described land, and to enter judgment declaring such
rights accordingly and for such other and further relief and
determinations as to the Court may seem proper in the pre-
mises.

Respectively submitted,

LAW OFFICES OF
JAMES M. BUTHOD

By: /S/ James M. Buthod
James M. Buthod

Attorney for Plaintiffs

32
McDONALD, McDONALD & NIXON

By: /S/ Charles R. Nixon _
Charles R. Nixon

Attorney for Defendants

LAW OFFICES OF JAMES M. BUTHOD
Citizens Bldg., Suite 409

115 Southeast Third Street

Evansville, IN 47708

Telephone: (812) 423-5261

McDONALD, McDONALD & NIXON
P. O. Box 400

120 South Main Street

Princeton, IN 47670

Telephone: (812) 385-4816

33

STATE OF INDIANA )
) SS:

COUNTY OF GIBSON )

IN THE GIBSON CIRCUIT COURT

Filed July 24, 1978

1978 TERM
EDEN H. POND )
EDNA H. BOBE )
CONSOLIDATION COAL ) CAUSE NO. C-78-17
COMPANY )
Plaintiffs ) ORDER ENTRY,
Sh JULY 25, 1978
vs. )
)
ULYSSES G. WALDEN, JR. ) Russell Kern
CAROLYN SALLEE WALDEN ) Clerk of the
Defendants ) Gibson Circuit Court

MEMORANDUM OPINION
AND JUDGMENT ON AGREED CASE

This case comes before this Court upon the Submission
of an Agreed Case by the parties herein, pursuant to Indiana
Code 1971, Section 34-1-29-1 et seq., with the necessary facts
and Record, as defined in that statute. It is believed reiteration
of the facts or of the Record are unnecessary except for re-
ference.

The Trial Court wishes to express its gratitude to counsel
for Plaintiffs, Defendants, Attorney General of the Stute of
Indiana and Intervenor for their scholarly Briefs in this compli-
cated legal issue.

The essential decision necessary in this case is to de-
termine.whether or not the so-called Indiana Mineral Lapse
Statute being LC. 1971, 32-5-11-1 et seq., is constitutionally
acceptable. If as contended by plaintiff it is unconstitutional,
then plaintiff will prevail by judgment. If constitutional, there
must necessarily be judgment for the defendants.

34

This Court feels that a short statement of matters of
concern by way of Memorandum may be helpful to those
affected by this Decision, as well as those reviewing the action
of this Court.

It cannot be rationally doubted that the State of Indiana
reserves the right inherent in this organized society to act in
the public welfare; even to the extent of impairment of private
contract. Home Building and Loan v. Blaisdell, (1934) 290
U.S. 398. As a general proposition of Constitutional Law,
however, this Court believes the U.S, Supreme Court normally
will abstain upon issues relating to the contract laws of the
individual States. However, there are discussions in cited cases
as to the principles, Blaisdell, supra.

It should be noted in the Agreed Facts of this case that
we are not discussing an issue of murky titles, or long-lost
owners of interests. There is no “cloud” on the title to this
real estate, except to the extent that the Statute challenged
poses such a cloud. This Statute creates a challenge to vested
property rights, by the statutory terms of non-use or failure
to register. At Common Law, there could be no termination
in mineral rights as a separate estate from the fee. The question
then becomes, first: can the Indiana Legislature create such
a challenge, and second: has the Legislature in this Statute
done so in a Constitutionally acceptable manner.

This Court does not question that the Legislature had
a valid purpose in passage of this Statute, i.c., exploitation
of the State’s energy sources, but the method chosen is believed.
to be unconstitutional.

As stated, very scholarly arguments are advanced for
the proposition that the Statute is Constitutional. All of these
arguments fail to answer the basic inequitable result in this
case, that a judgment for the surface rights owners would give
them a demonstrably valuable asset in derogation of their
contractual purchase, with no notice to the mineral rights
owners, and no compensation to the valid owners for their
loss.

Suppose the State of Indiana had been the takers of
these rights from the mineral owners for distribution to some-
one who would exploit them, arguably for the common good.

35

Would not Constitutionally there be a requirement of notice
to the mineral owners, a right of hearing, some form of com-
pensation, as, for example, the tax sale of real estate?

It seems clearly the law in this Country that before
property rights can be taken from persons, these persons
have some rights as to notice and hearing. The subject matter
would govern what procedural requirements are involved,
but Constitutionally it would seem the hearing would revolve
around the facts essential to determination of the controversy.
Bell v. Burnson (1971), 402 U.S. 535; Mullvane v. Central
Hanover Bank and Trust Co. (1950), 339 U.S. 306; Goldberg
v. Kelley (1970), 397 U.S. 254.

Another unresolved question is, what harm would result
had the statute required notice been given the mineral owners
prior to the drastic severage and delivery of ownership from
the mineral owner to the surface owner, at least such notice
as is contemplated in Mullane, supra? It would perhaps induce
litigation, but one queries whether that is not already the
case with the statutory framework existing. The notice pro-
vision in LC. 1971, 32-5-11-6 would seem just as precipitating
a rule as would be notice prior to the legislative taking. Ex-
pediency is not always justice, whether the end sought is
laudable or not.

For the reasons stated herein, this Court finds, Indiana
Code, 1971 32-5-11-1, et seq. being Acts 1971, P.L. 423 is
unconstitutional, void and of no effect.

This Memorandum of Opinion constitutes the Findings
of Fact and The Conclusions of Law of This Court.

IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED by this Court that there be judgment for the Plain-

recover their costs expended, that Plaintiffs, Eden H. Pond
and Edna H. Bobe, are declared to be the equal owners as
mineral rights in the real estate

s
l
gE

36
Judgment accordingly.
/S/ Walter H. Palmer

WALTER H. PALMER, JUDGE
GIBSON CIRCUIT COURT

37
(Opinion of the Supreme Court of Indiana)
Short v. Texaco, Inc.
Cite as, Ind., 406 N.E.2d 625

Louise F. SHORT, Appellant,
v.

TEXACO, INC., Robert Braselton, Electra Fields, Charles
Braselton, Chester Braselton, Robert E. Braselton,
Clifford N. Braselton, Osborne T. Braselton, Jr., David
E, Burkhart, John P. Braselton, Rosa G. Burkhart, D. W.
Mayhew d/b/a Mayhew Oil and Gas Development, De-
Beers Diamond Investment, Ltd., Appellees,

State of Indiana, Intervenor.

Ulysses G. WALDEN, Jr. and Carolyn
Sallee Walden, Appellants,

Vv.

Eden H. POND, Edna H. BOBE and Consolidation
Coal Company, Appellees,

Louise F. Short, Intervenor.
Nos. 179823 and 12788303.
Supreme Court of Indiana.
June 23, 1980.

38
DeBRULER, Justice.

The trial court declared Ind. Code $8 32-5-11-1 through
32-5-11-8, the Mineral Lapse Act, unconstitutional. The Act
puts an end to interests in coal, oil, gas or other minerals which
have not been used for twenty years. The “use” of a mineral
interest which continues it in force includes actual production,
payment of rents, royalties or taxes, or the filing of a claim in
the dormant mineral interest record in the recorder’s office.
It granted owners of mineral interests a two year period of
grace after its effective date in which to file the claim and
preserve the interest. This is an appeal from two judgments
below, consolidated here, that termination of an interest under
the Act is contrary to due process, equal protection, and
the guarantee of just compensation for property taken by
the State

The Act reflects the legislative belief that the existence
of a mineral interest about which there has been no display
of activity or interest by the owners thereof for a period of
twenty years or more is mischievous and contrary to the econo-
mic interests and welfare of the public. The existence of such
stale and abandoned interests creates uncertainties in titles
and constitutes an impediment to the development of the
mineral interests that may be present and to the development
of the surface rights as well. The Act removes this impediment
by returning the severed mineral estate to the surface rights
owner. There is a decided public interest to be served when
this occurs. The extinguishment of such an interest makes
the cntire productive potential of the property again available
for human use.

The trial court concluded that the legislative purpose
of the Act is to facilitate the exploitation of energy sources
and accepted such purpose as legitimate. While all its con-
clusions are not entirely clear, it went on to void the entire
statute because it determined among other things that due
process of law required the divestiture of the vested mineral
interest to be preceded by due process notice and an oppor-
tunity to be heard.

{1] Interests or estates in oil, gas, coal and other minerals

39

lying beneath the surface of the land are interests in real estate
for our purposes here, and as such are entitled beyond question
to the firmest protection of the Constitution from irrational
state action. They are vested property interests separate and
distinct from the surface ownership. The State has no power
to deprive an owner of such an interest without due process
of law. ‘They are entitled to the same protection as are fee
simple titles. They are themselves of great utility and benefit
to the society as a means of facilitating the development of ©
natural resources.

{2] Courts of this state and nation have always given
due regard to constitutional constraints upon their authority
to void statutes. In doing so in Noel v. Ewing, (1857) 9 Ind.
37, we said:

“It is due from the judiciary to sustain and recon-
cile their enactments, if possible. We will not
lightly conclude that the law-making power has
either ignorantly or wilfully violated the constitu-
tion. To justify the Courts in declaring an act
void, it must clearly subversive of that instrument.
(Citations omitted.)

They who claim that the legislature has, in this
particular, transcended its constitutional power,
should be prepared to make a strong and clear
case. All doubts must fall in favor of the validity
of the law.” 9 Ind. at 43.

We affirm again now in this case our adherence to this vital
principle.

In Chicago and North Western Transportation Co. v.
Pedersen, (1977) 80 Wis.2d 566, 259 N.W.2d 316, the Supreme
Court of Wisconsin voided a similar act which directed that
mineral rights revert to the surface fee ownership if they were
not registered or taxes had not been paid on them. That
statute was deemed contrary to procedural due process in that
the mineral interest owner was not given notice or an oppor-
tunity to be heard prior to the reversion of his interest to the

40

surface rights owner. That court relied upon Mullane v. Central
Hanover Bank & Trust Co., (1950) 339 U.S. 306, 70 S.Ct.
652, 94 L.Ed. 865, and Bell v. Burson, (1971) 402 U.S. 535,
91 S.Ct. 1586, 29 L.Ed.2d 90. The court below took the
same tack in voiding the Indiana Act.

In Mullane, supra, primarily relied upon by the trial
court, the United States Supreme Court said:

“Many controversies have raged about the
cryptic and abstract words of the Due Process
Clause but there can be no doubt that at a mini-
mum they require that deprivation of life, liberty
or property by adjudication be preceded by
notice and opportunity for hearing appropriate
to the nature of the case.

An elementary and fundamental requirment
of due process in any proceeding which is to be
accorded finality is notice reasonably ealculated,
under all the circumstances, to apprise interested
parties of the pendency of the action and afford
them an opportunity to present their objections.”
(Emphasis added.) 339 US. at 313,314, 70 S.Ct.
at 656, 657.

In Mullane the bank petitioned a court for settlement of an
account of a trust fund, and the sufficiency of publication
notice to beneficiaries was the issue. Notice was due to the
beneficiaries because a tribunal was about to adjudicate upon
their property. The Mineral Lapse Act in contrast is self-
executing and does not contemplate an adjudication before
a tribunal before a lapse occurs. When the statutory condi-
tions exist the lapse occurs. Mullane does not support the
trial court conclusion that notice and hearing are due to a
mineral interest owner prior to the occurrence of an extinguish-
ment.

Bell v. Burson, supra, relied upon by the trial court

41

does not support the conclusion either. There a Georgia law
provided that the driver’s license of an individual motorist in-
volved in an accident is to be automatically suspended with-
out notice or hearing if security was not posted to cover the
damages claimed by aggrieved parties in the accident report.
In the course of holding this system violative of procedural
due process the court specifically noted:

“If the statute barred the issuance of licenses
to all motorists who did not carry liability insur-
ance or who did not post security, the statute
would not, under our cases, violate the Fourteenth
Amendment. (Citations omitted). It does not
follow, however, that the amendment also permits
the Georgia statutory scheme where not all moto-
rists, but rather only motorists involved in acci-
dents, are required to post security under penalty
of loss of the licenses.” 402 U.S. at 539,91 S.Ct.
at 1589.

Thus, even in Bell, a case involving a different complex of
social concerns, there is this language supportive of the Act
under consideration. It would support as consistent with
procedural due process a legislative enactment which declared
no more than that all licenses issued by the state would cease
to be valid on a date certain in the future unless proof of
financial responsibility were filed. Cf. Frost & Frost Trucking
Co. v. Railroad Commission, (1962) 271 U.S. 583, 46 S.Ct.
605, 70 L.Ed. 1101. Such a hypothetical statute would be
very similar in operation to the Act being questioned in this
case.

{3] The Act under question does not provide for any
adjudicatory process by a court or administrative agency.
The absence of such a provision is not, we think, invalidating.
The Act simply spells out the conditions which when existing
mandate the extinguishment of an interest. If a court should
be called upon to determine whether such conditions arose
in a particular case so as to have effected the loss of an interest,
the owner of such interest would be entitled to notice and an

42

opportunity to be heard. Prior to any extinguishment the
owner of an interest will have had notice by reason of the
enactment itself of the conditions which would give rise to
an extinguishment and at a minimum a two year opportunity
to prevent those conditions from occurring by filing a statement
of claim. Anderson National Bank v. Luckett, (1944) 321 U.S.
233, 64 S.Ct. 599, 88 L.Ed. 692. That procedure is both simple
and inexpensive. Based upon the foregoing analysis we do not
find the case of Chicago & North Western Transportation Co.
v. Pedersen, supra, persuasive.

The reasoning of the trial court and the cases relied upon
by it do not warrant the conclusion that the Act is unconstitu-
tional because it fails to afford notice and hearing to mineral
interest owners required by procedural due process.

{4, 5] The trial court also concluded that the extinguish-
ment of mineral interests under the Act constituted a taking
of property without due process of law. Judge Young for the
Fourth District Court of Appeals summarized the due process
analysis applicable here in Foreman vy. State ex rel. Department
of Natural Resources, (1979) Ind. App., 387 N.E.2d 455:

“The government has the inherent power or
‘police power’ to enact laws, within constitutional
limits, to promote order, safety, health, morals,
and the general welfare of society . . . Property
rights are not absolute and may be restricted by
legislation which cOnstitues a proper exercise of
the State’s police power . . . Legislation is a proper
exercise of the police power when the collective
benefit to the general public outweighs the re-
straint imposed . . . The methods or means used
to protect the public order, health, morals, safety
or welfare must have some reasonable relation to
the purpose or end sought.” 387 N.E.2d at 460.

Study of this Act reveals that its outstanding feature is its
declaration that mineral interests are terminable. Whatever
may be the exact legal dimensions of such interests, they
are not greater than fee simple titles. Under the statute of

required by it exist. A statute of limitations vests legal title
in an adverse possessor as against the true legal owner when
the conditions required by it exist. Brown v. Anderson, (1833)
90 Ind. 93. Statutes of limitation are statutes of repose found-
ed upon a rule of necessity and convenience and the well-:
being of society. Chase Securities Corp. v. Donaldson, (1945)
325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628. This Act is also
based upon the same rule. Cf. Love v. Lynchburg National
Bank and Trust Co., (1965) 205 Va. 860, 140 S.E.2d 650.

to its principal intent and effect, and for the purpose of con-
stitutional analysis, analogous to acts of limitation which vests
title to real and personal property.

[6] Acts of limitation are not per se unconstitutional
as impairing the obligation of contracts or as denying a person
property without due process of law. This is so even though
they extinguish the right of the party having a true title and
vest a perfect title in the adverse holder. Hawkins v. Barney's
Lessee, (1831) 5 Pet. 457, 8 L.Ed. 190, is an early case up-
holding the validity of a seven year limitation upon actions to
recover possession of land in Kentucky. In the course of that
opinion it is said:

“It is argued, that limitation laws although be-
longing to the lex fori, and applying immediately
to the remedy, yet indirectly they effect a com-
plete divesture and even transfer of right. This is
unquestionably true, and yet in no wise fatal to
the validity of this law. The right to appropriate a
derelict is one of universal law, well known to
the civil law, the common law, and all law; it

44

existed in a state of nature, and is only modified
by society, according to the discretion of each
commodity.”

The transfer of right upheld by the court was deemed the
indirect product of the limitation law. The transfer or right
effected by the Indiana Act under consideration is its direct
product. That minor difference would not support a contrary
evaluation of our Act.

[7, 8] In Terry v. Anderson, (1877) 95 U.S. 628, 24
L.Ed. 365, Chief Justice Waite stated the general rule regarding
the manner in which statutes of limitation are received by
courts:

“This court has often decided that statutes of
limitation affecting existing rights are not uncon-
stitutional, if a reasonable time is given for the
commencement of an action before the bar takes
effect....

In all such cases, the question is one of reason-
ableness, and we have, therefore, only to consider
whether the time allowed in this statute is, under
all the circumstances, reasonable. Of that the
legislature is primarily the judge; and we cannot
overrule the decision of that department of govern-
ment, unless a palpable error has been committed.”
95 U.S. at 632-633.

Indiana is in accord with the rule stated and the reasoning
behind it. Guthrie v. Wilson, (1959) 240 Ind. 188, 162 N.E.
2d 79; Sansberry v. Hughes, (1910) 174 Ind. 638, 92 N.E.
783. In Terry the court held that the period of nine months
and seventeen days given to sue upon a cause of action was
not unconstitutional. In Jurner v. People of State of New
York, (1897) 168 U.S. 90, 18 S.Ct. 38,42 L.Ed. 392, a statute
declaring that past sales and conveyances by a comptroller
for non-payment of taxes would be conclusively presumed
regular six months after the effective day of the statute was

45

upheld as providing a reasonable period for bringing an action.
Pursuant to Ind. Code § 32-5-11-4, owners of mineral interests
are granted a minimum of two years in which to act to pre-
serve their interests. Such a period of grace would constitute
a reasonable time as contemplated by these cases.

In Wilson v. Iseminger, (1902) 185 U.S. 55, 22 S.Ct.
573, 46 L.Ed. 804, the United States Supreme Court upheld
a statute which barred actions to recover ground rents and
extinguished totally the right to recover further such rents, °
after twenty-one years had expired during which no declara-
tion or acknowledgement of the existence of the right or
claim had been made. The statute provided that the bar and
extinguishment would not be effective until three years after
the passage of the act. The court held that the act gave a
reasonable time to the owners of the ground rents for pre-
serving their rights. This case strongly supports the validity
of our Act, because it upheld a statute having an extinguish-
ment feature similar to the Indiana Act under consideration.

{9] The purposes of this Act as stated above at the
beginning of this opinion are to remedy uncertainties in titles
and to facilitate the exploitation of energy sources and other
valuable mineral resources. The dependence of local economies
upon the mineral recovery industry and the entire State upon
limited fossil fuel resources illustrates the public nature of
these purposes. The objectives are valid and similar to those
served by acts of limitation and the law of adverse possession.
In limiting its incursion upon mineral rights to those which
have been unused in the statutory sense for as long as twenty
years, and in granting a two year period of grace after the
enactment of the statute to preserve interests, the Legislature
adopted means which are rationally related to such objectives,
and which themselves provide a reasonable time and a simple
and inexpensiye method, taking into consideration the nature
of the case, for preserving such interests. We find that this
Act is within the police power of the states and does not un-
constitutionally impair the obligation of contracts.

{10} The trial court’s judgment is arguably based upon
the conclusion that the statute effectuates a taking of property
without just compensation contrary to the mandate of Art.

46

I, § 21, of the Indiana Constitution. We agree with appellant
that extinguishment of mineral interest under this statutory
scheme does not involve an exercise by the State of its power
of eminent domain. The State through this statute is not
actually taking the mineral interest for its own use and bene-
fit. Consequently, Art. I, § 21, does not provide an applicable
standard for review of this statute. Buckler v. Hilt, (1936)
209 Ind. 541, 200 N.E. 219; Foreman v. State ex rel. Depart-
ment of Natural Resources, supra. Appellees point to Evans-
ville & Crawfordsville R.R. Co. v. Dick, (1857) 9 Ind. 433, in
which this Court stated:

“[{T]he legislature has no power to authorize,
in any case, either a direct or consequential injury
to private property, without compensation to the
owner.” 9 Ind. at 436.

: This statement in context gave support to the court’s
ruling that the power of eminent domain cannot serve as a
source of immunity from suits for damages for injury to private
property. The Mineral Lapse Act does not involve the injury
to private property through conduct or activities of govern-
mental agents or others having and exercising the power of
eminent domain. It declares instead that a lapse of a mineral
interest will occur in the event of specified conditions and
circumstances. We are satisfied that substantive due process
provides the proper standard for constitutional review of it.

{11] Appellant next contends that the trial court erred
in concluding that the Act is violative of the guarantees of Art.
I, § 23, of the Indiana Constitution and the Fourteenth Amend-
ment of equal protection of the law by reason of the special
treatment afforded certain owners of mineral interests described
in Ind. Code § 32-5-11-5. That provision states:

“Failure to file a statement of claim without
the time provided in section 4 shall not cause a
mineral interest to be extinguished if the owner
of such mineral interest:

47

(1) was at the time of the expiration of the
period provided in section four, the owner of ten
or more mineral interests, as above defined, in the
county in which such mineral interest is located,
and;

(2) made diligent effort to preserve all of such
interests as were not being used, and did within a
period of ten years prior to the expiration of the
period provided in section 4 preserve other mineral
interests, in said county, by the filing of statements
of claim as herein required, and;

(3) failed to preserve such interest through
inadvertence, and;

(4) filed the statement of claim herein re-
quired, within sixty days after publication of
notice as provided in section seven herein, if
such notice is published, and if no such notice is
published, within sixty days after receiving actual
knowledge that such mineral interest had lapsed.”

By declaring the mineral interest terminable under the con-
ditions set forth in the other sections of the Act, the Legis-
lature sought to create an environment in which mineral in-
terests will be promptly exploited or abandoned. If achieved,
this objective would create economic benefits for the people
and industries within local communities where actual develop-
ment activities result and would create other land develop-
ment where abandonment results. The criteria in Ind. Code
§ 32-5-11-5, can be rationally conceived as establishing a border
line beyond which strict application of the Act’s extinguish-
ment standards would become destructive of these goals.
Minerals exist within the earth in strata and in formations
which do not necessarily coincide with the manner in which
min has chosen to divide the surface area. Consequently it
is commonly necessary to assemble several mineral interests
in order to render the extraction of minerals safe and pro-

48

fitable. The Legislature could reasonably have concluded that
those meeting the criteria set forth above include those most
likely to assemble such interests and actually produce minerals.
The separate classification of interests so held within these
essential clusters is rationally related to the legitimate objectives
of the enactment and is consequently not contrary to the re-
quirements of state and federal equal protection.

[12] The Act seeks to remedy a situation thought to
retard economic activity vital to the welfare of local com-
munities and the general public as well. The classification
erected does not involve a suspect classification or an impinge-
ment upon the exercise of a fundamental right, and conse-
quently the traditional fair and substantial relation test is
applicable to it. Johnson et al. v. St. Vincent Hospital, Inc.
et al., Inc., 404 N.E.2d 585 (1980); Setup, et al. v. Indiana
Housing Authority, Inc., 402 N.E.2d 1215 (1980). In this
area of economic and social concern, legislativé choices are
entitled to a large degree of deference from the court. They
are not required to be made with mathematical precision or
along entirely logical lines. Williamson v. Lee Optical of Okla-
homa, (1955) 348 U.S. 483, 487, 75 S.Ct. 461, 464, 99 L.Ed.
563; Indiana Aeronautics Com’n v. Ambassadair Inc., (1977)
267 Ind. 137, 368 N.E.2d 1340.

“In short, the judiciary may not sit as a super-
legislature to judge the wisdom or desirability of
legislative policy determinations made in areas
that neither affect fundamental rights nor proceed
aiong suspect lines, see, e.g. Day-Brite Lighting,
Inc. v. Missouri, 342 U.S. 42, 423, [72 S.Ct. 405,
407, 96 L.Ed. 469] (1952); in the local economic
sphere, it is only the invidious discrimination, the

_wholly arbitrary act, which cannot stand con-
sistently with the Fourteenth Amendment.” City
of New Orleans v. Dukes, (1976) 427 U.S. 297,
303-304, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511.

There has been no demonstration made which convinces us that
the classification of Ind. Code § 32-5-11-5 is invidiously dis-

49

criminatory of wholly arbitrary.

The judgments of the trial court here appealed from
declaring the statute unconstitutional are reversed and the
cases remanded to the trial court for enforcement of the Act.

GIVAN, C. J., and HUNTER, PRENTICE and PIVAR-
NIK, JJ., concur.

SUPREME COURT OF THE UNITED STATES
No. 80-1018

Eden H. Pond, Edna H. Bobe and
Consolidation Coal Company,

Appellants.

Vv.

Ulysses G. Walden, Jr., et al.

APPEAL from the Supreme Court of Indiana.

The Statement of jurisdiction in this case having been
submitted and considered by the Court, in this case probable
jurisdiction is noted.

The case is consolidated with case No. 80-065, Texaco,
Inc., et al. v. Louise F. Short, et al., and a total of one hour
is allotted for oral argument.

March 23, 1981

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1925%3A2. Public record. Not legal advice.