PASCHALL v. CHRISTIE-STEWART, INC.

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Argument of William J. Legg

Chief Justice Warren E. Burger: We will hear arguments next in 72--922, Paschall against Christie-Stewart.

Mr. Legg, you may proceed whenever you're ready.

Mr. William J. Legg: Thank you, Mr. Chief Justice, may it please the Court.

This case is an appeal from the Supreme Court of Oklahoma, and it deals with the due process clause of the Fourteenth Amendment under the Mullane versus Central Hanover Bank and Trust Company and subsequent cases, concerning notice requirements.

And it also deals with the equal protection clause of the Fourteenth Amendment under interpretations of state law by the Oklahoma Supreme Court.

Chief Justice Warren E. Burger: When did you first raise the equal protection issue, Mr. Legg?

Mr. William J. Legg: I raised it in the brief to this Court, and the reason for that is that the case, the decision in the Oklahoma Supreme Court worked what I considered an equal protection situation, as compared with the previous case by the Oklahoma Supreme Court.

That had not come out until the appeal.

Chief Justice Warren E. Burger: Did you raise it in your jurisdictional statements here?

Mr. William J. Legg: I believe I did.

Chief Justice Warren E. Burger: I couldn’t find it there.

I thought it was first appearing in your brief --

Mr. William J. Legg: It may have been the basic brief.

Our basic point has been all along the notice requirements under the Mullane decision.

But we thought the equal protection argument was involved also when the decision by the Oklahoma Supreme Court came down.

The facts are that the appellants are the successors in interest of mineral owners under 40 acres of land in Seminole County of Oklahoma.

These mineral owners own no surface rights at all.

It was strictly severed mineral interest.

The Oklahoma law is that the surface owners are committed to pay the ad valorem taxes, and the mineral owners have no responsibility for that.

In 1952, the surface owner failed to pay the ad valorem taxes and the County Treasurer put the land on the publication notice for the original sale in 1953.

Now, in Oklahoma, ad valorem tax sales are an administrative process by the county officials.

It starts with an original sale when the surface owner fails to pay the taxes, and the County Treasurer must place the land on that original sale if the taxes are not paid.

He publishes notice for the original sale, and in the publication notice, he includes only the description of the land, and there is no personal service, or process, or any mailing, or posting on the land, or anything about nature at the original sale.

At the sale there are two ways that it can go, if there is a bid by an individual, and I'm speaking of the law in effect in 1953.

If there is a bid by an individual, the individual receives a certificate of paid taxes.

If there is not a bid by an individual then it is bid off to the County Treasurer, and he receives the certificate.

Chief Justice Warren E. Burger: Does any property lien house at that time to the county?

Mr. William J. Legg: It’s a lien.

It constitutes a lien on the land, which I would assume would be a property interest under the due process clause and the later decisions.

I believe there's a decision that holds that the complete title does not have to be held to have due process rights.

Then --

Unknown Speaker: Mr. Legg, I take it, you’re making no challenge to the original sale here.

Mr. William J. Legg: Well, I'm making no challenge to the original sale except that it forms the basis of the entire tax sale procedure.

And one of my key points is that if there had been notice given adequate under the constitution at the original sale, then we could not argue that there was no notice at the time of the resale.

But since there wasn’t any notice of the original sale and the resale in our argument, then we feel that we have to consider the original sale.

Unknown Speaker: Incidentally, now that I have you interrupted is why is there a difference between the two statutes?

One calls for three weeks public's notice, the other one for four weeks public's notice.

Makes no difference I suppose --

Mr. William J. Legg: I don’t know the reason for it, it is there, and you know that.

Unknown Speaker: And in the resale, you must name owner?

Mr. William J. Legg: In the resale --

Unknown Speaker: At least he was named here.

Mr. William J. Legg: In the resale, the owner must be named --

Unknown Speaker: Of the surface.

Mr. William J. Legg: Well, it says the owner as appears on the records of the County Treasurer.

Unknown Speaker: Well, there’s only owner who’s taxed.

Mr. William J. Legg: The surface owner.

Unknown Speaker: So, that means the surface, doesn’t it?

Mr. William J. Legg: That’s what it was after, yes, Sir.

Unknown Speaker: And in the office of the Treasurer, there’s no record of any mineral owners?

Mr. William J. Legg: There is none --

Unknown Speaker: There would be in the County --

Mr. William J. Legg: -- in the County Treasurer's office.

Unknown Speaker: What?

Mr. William J. Legg: There is none in the County Treasurer's office.

Unknown Speaker: But, next door in the county clerk's office --

Mr. William J. Legg: Yes, that’s correct.

Unknown Speaker: There is a -- the mineral interest is recorded?

Mr. William J. Legg: Correct.

Now, on that point, sometimes the records of the County Treasurer have names of owners of the mineral interest, but not in relation to those men.

In other words if they owned another tract in that county, their names and addresses would appear, but not in relation to that.

Unknown Speaker: If there were surface owners in the county?

Mr. William J. Legg: If they were surface owners, yes.

Unknown Speaker: That factor appeared in Treasurer's office.

Mr. William J. Legg: It would appear in the County Treasurer's office, yes sir.

Now, in the resale there also is no requirement for notice to the mineral owners as such.

There’s no requirement for service, or process, or posting on the land, or mailing, or anything of this nature.

So, what we have is under both at the time of the original sale and also at the time of the resale, we have nothing but publication notice.

And in the original sale there is no naming, there is just the description of the land.

At the resale, there is no notice by naming of the mineral owner as such.

So, at the time of the 1956 resale, it's our position that our people had no constructive notice under the Mullane decisions and the subsequent decisions.

They had no duty to pay the taxes to begin with, and their names were not there, except over in the county clerk's office.

Now --

Unknown Speaker: Would you be making the same argument if your client were a lessee, a long term lessee 20 years?

Mr. William J. Legg: I would assume that the lessee or mortgagee would have the same rights under the Mullane decisions --

Unknown Speaker: Even though there’s no record of the lease in the Treasurer's office?

And probably none in the -- may not be any in the clerk’s office?

Mr. William J. Legg: In the clerk’s office it would be a recordable document if it were a long term lease.

Unknown Speaker: Recordable but not --

Mr. William J. Legg: It would be recordable, you don’t have to record in Oklahoma, I mean it’s not absolutely necessary to record in Oklahoma for the validity of the document, in any event.

Unknown Speaker: But it is against subsequent owners, I suppose?

Mr. William J. Legg: Yes, in order to force all the third parties, you have to record that.

Unknown Speaker: So, would make the same argument as against lessees, mortgagees?

Mr. William J. Legg: I believe we would have to make on the principle --

Unknown Speaker: So, you really would be changing the practice at the Treasurer's office substantial?

Mr. William J. Legg: Yes, this would change, there’s no doubt about that.

Unknown Speaker: If you prevail here, what unsettling effect, if any, will this have on Oklahoma titles?

Mr. William J. Legg: In Oklahoma what?

Unknown Speaker: Titles.

Mr. William J. Legg: Well, I think it will change the case law in Oklahoma.

It will probably result in changing the statutory law of Oklahoma.

As far as the upsetting of titles, I believe it would be limited to a five year period, because we have a five year statute of limitations.

Where there is notice to the owner --

Unknown Speaker: Mr. Legg, I gather that while there maybe separate ownership of minerals and surface.

Mr. William J. Legg: Yes, sir.

Unknown Speaker: Minerals are not separately taxed, are they?

Mr. William J. Legg: They are not separately taxed until they become productive.

At that time there’s an in lieu production test.

Unknown Speaker: But then, what we're talking about here, this situation or not?

Mr. William J. Legg: This is a nonproductive situation.

Unknown Speaker: Yes, but as I understand it, nonpayment of taxes by the surface owner results in the sale not only the surface rights but also the mineral rights.

Mr. William J. Legg: That’s the construction placed upon these statutes by the Oklahoma Supreme Court.

Now, I might say in relation to production that the land has subsequently --

Unknown Speaker: Even though under Oklahoma law, the mineral interest is separately recognized under the law?

Mr. William J. Legg: It's a separately owned property interest, yes, sir.

I would like to say that --

Unknown Speaker: Perhaps in respect to my question which you were in the course of answering, your opponent will comment on it when he's up, as to the unsettling effect, if any, upon Oklahoma titles.

Mr. William J. Legg: Well, yes back to that, I think the statute limitations is the barrier to a full disruption of all titles in Oklahoma.

I think the Schroeder case can be read to the effect that the statute of limitations would not apply.

But I think in our land title situation, the difference is that the party, the tax sale purchaser goes into possession of the surface.

Now, at that point, he sets up his notice even though there hasn’t been notice through the statutory procedure, he sets up his notice by physically occupying the surface of the land.

And so, the five years statute would run as against ownership of the surface.

Now, as far as the mineral rights are concerned, it's our view that that occupation of the un-occupancy of the surface is not notice.

It’s not occupancy of the mineral rights, until there is actual drilling there, because there is nothing to put anyone on notice, or to put a severed mineral owner on notice that his rights are being claimed by someone else.

As a surface owner, the occupancy of the surface puts that person on notice, so that if you don't have constitutional notice under the tax sale procedure, going into possession substitutes that as notice, as far as the surface owners is concerned.

But in order to -- if you don't have constitutional notice during that tax sale to the mineral owners, and then someone goes into possession of the surface without going into possession of minerals, there is nothing to put the mineral owner on notice.

There’s no substitution through possession that puts him on notice.

He has to rely on someone actually drilling a hole there or mining or whatever it is.

Unknown Speaker: I don’t seem that is an answer to my question that with respect to mineral rights there will be a chaotic result in Oklahoma, if you prevail here.

Mr. William J. Legg: Well, if there has been an attempt to explore, there will not be chaos.

For those on those tracts land that have been explored, the statute limitations will start running and there’ll be five year period.

For those of mineral interest that have not been explored, there’s been no action taken to take the mineral rights under possession, and if there was no statutory notice given or constitutionally effective, then their position would be the same as it always has been.

They would still be owned by the former owner.

Justice William H. Rehnquist: Does this go back to 40 years to challenge tax sale of opportunity described as a non deductive mineral interest?

Mr. William J. Legg: Well, are you referring to the 40 years statute in Oklahoma?

Justice William H. Rehnquist: Well, no I didn't.

I just guessed.

Mr. William J. Legg: Oh, yes.

Well, there is a 30 year land statute in Oklahoma but it doesn’t apply to mineral rights.

Justice William H. Rehnquist: Well, you say that because the mineral owner doesn’t have notice from a new surface claimant going into effect, the five years statute doesn’t apply as to him.

Is there any statute that would operate on the nonproductive mineral claim?

Mr. William J. Legg: The case law in Oklahoma on the statute of limitations is that the possession of the surface is not possession of the minerals, except in the case of the resale tax deed, not in the case of a certificate tax deed, but only in the case of the resale tax deed.

And this is for the equal protection of the law comes in to my argument.

Justice William H. Rehnquist: Let me ask you just one more question Mr. Legg, if I may to try to wind up this one aspect, then, as to a non-producing mineral interest, there isn't any statute limitations in Oklahoma that would bar a man going back and saying, making this constitutional claim that you make here with respect to a sale that had taken place 20, 30, 40 years ago.

Mr. William J. Legg: There is no statute of limitations, except in the case of a resale tax deed which we have here as construed by the Oklahoma Supreme Court.

Justice William H. Rehnquist: And what is the statute of limitations for a resale tax deed?

Mr. William J. Legg: That would be five years.

Justice William H. Rehnquist: But that requires some sort of notice doesn’t it?

Mr. William J. Legg: No, just the possession.

Justice William H. Rehnquist: Going into possession?

Mr. William J. Legg: There is no notice.

Justice William H. Rehnquist: Well, but you were equating going into possession on the part of the surface claimant with a form of notice to the former owner to start this statute running.

There is no analogous going into possession with respect to a nonproductive mineral interest, is it?

Mr. William J. Legg: No, you’d have to drill or you'd have to take possession of the mineral rights in some way, yes.

And this is a statute case for Oklahoma.

Unknown Speaker: Yes, but if you have -- the only time the question of starting this statute limitation comes up with the resale tax deed, this is you have an invalid one supposedly, isn’t it?

Mr. William J. Legg: Not under --

Unknown Speaker: Because I thought the law was that the resale tax deed was valid against the mineral interest without notice at all?

Mr. William J. Legg: No, under Walker versus Hoffman which was a certificate tax deed case, the court held, the Oklahoma Supreme Court held that possession of the surface is not possession of the minerals.

Unknown Speaker: Yes.

Mr. William J. Legg: And consequently, the tax deed if it's invalid in this inception is invalid.

But their is language in that same case, it didn’t deal with the resale situation but there’s language in that same case that holds to the affair, or says, we will hold that if it’s a resale, then it’s a completely new title and possession of the surface --

Unknown Speaker: Is notice to the mineral --

Mr. William J. Legg: -- is notice to that --

Unknown Speaker: And that, even if it was tax deed, resale tax deed, were invalid for some reason?

Mr. William J. Legg: Yes.

Unknown Speaker: It would still start -- possession of the surface would still start --

Mr. William J. Legg: According to that --

Unknown Speaker: -- the five year statute running?

(Voice Overlap)On that basis, if you won this case and Oklahoma stuck to that rule, the unsettling effect on mineral interest will just be five years?

Mr. William J. Legg: That’s true, except that, I --

Unknown Speaker: Well, I said if Oklahoma stuck to that rule.

Mr. William J. Legg: If it did but this gets into my equal protection --

Unknown Speaker: I understand that.

That's --

Justice William H. Rehnquist: That's not true of a certificate of sale though, is it, as opposed to a resale?

Mr. William J. Legg: A certificate tax deed.

Justice William H. Rehnquist: A certificate tax deed.

Mr. William J. Legg: The possession of the surface is not possession of the minerals.

Justice William H. Rehnquist: So there, the unsettling effect could grow back indefinitely?

Mr. William J. Legg: Yes, but that’s decided long in Oklahoma.

That was the Walker versus Hoffman case exactly is at this lady, I believe it was a lady that owned the mineral rights and the tax, the certificate tax deed purchaser claimed the mineral rights.

Unknown Speaker: Yes, so this case won’t affect that rule that’s already the rule in Oklahoma.

Mr. William J. Legg: That’s already the rule in Oklahoma.

Unknown Speaker: Would you refresh recollection as to how the county would have been able as a practical matter to give notice to the owners of the mineral rights, no taxes are assessed, would that require a title examination?

Mr. William J. Legg: That will require if the mineral owner's name and address is not in the County Treasurer's office.

He would have to go to the county clerk’s office to find it.

Now --

Unknown Speaker: When he went to the county clerk’s office, would he have to go the through land books, the title like a lawyer would?

Mr. William J. Legg: He would have to go through the indexes of the land records to find out who claims, if any or outstanding.

Unknown Speaker: That could go back --

Mr. William J. Legg: It could go back to statehood, yes.

Unknown Speaker: Yes.

Mr. William J. Legg: But the fact is that the mineral interest is a separately owned interest, separately owned property and that property owner has received no notice that his rights are in jeopardy.

Unknown Speaker: I understand that I was just curious that there appears to be no provision either for taxing the owners, the minerals rights, or providing some readily available list so that the authorities would know who they are.

Mr. William J. Legg: That is true.

Unknown Speaker: In my state they tax them.

Mr. William J. Legg: I beg your pardon?

Unknown Speaker: I just said in Virginia they tax the owners of minerals.

Mr. William J. Legg: Yes, in a numbers of states they do.

In Oklahoma becomes taxable in the event of production.

Justice Thurgood Marshall: What I’m not clear on is what right does the state have to extinguish this right if there’s no duty to pay taxes?

Mr. William J. Legg: Well, this is part of our argument Justice Marshall.

We have no duty to pay taxes, the severed mineral interest.

Justice Thurgood Marshall: You don’t owe the state anything.

Mr. William J. Legg: Under the state law, taxing law we don’t.

Justice Thurgood Marshall: But you lose your property.

Mr. William J. Legg: But it’s a separately owned property interest and it is lost, if the surface owner fails to pay the taxes.

Chief Justice Warren E. Burger: What do you have to say about the obligation of the owner of these mineral rights to keep some track of whether the taxes are being paid by the surface owner?

Would you think he ought to pay a little attention to that since his rights could be extinguished?

Mr. William J. Legg: I believe he should, yes, sir.

I think that since he has no duty, it would be an ordinary and reasonable assumption on his part that his surface owner is paying the taxes and that’s all about I can say about that, because --

Chief Justice Warren E. Burger: Well, was there any presumption that people pay their real estate taxes?

Mr. William J. Legg: There is no presumption in Oklahoma that I know of.

Chief Justice Warren E. Burger: Well, in the early --

Mr. William J. Legg: There’s a statutory requirement that it be done.

Chief Justice Warren E. Burger: In the earlier days of the country when eastern banks and mortgage companies were financing large proportion of the purchases in the western part of the country, insurance companies and banks, checks every year to see whether the taxes were being paid.

Mr. William J. Legg: Yes, the oil companies do that, I believe Justice White asked about that too that the oil companies and the mortgagees regularly check for payment.

But it’s the individual land owner that is not ordinarily going to check on that kind of a situation.

He will make an assumption that is being paid.

Now --

Unknown Speaker: You mean the mineral owner doesn’t check to see whether the surface owner had paid the tax?

Mr. William J. Legg: Ordinarily, I would assume that he would not do that.

Unknown Speaker: You mean you have the same reason for doing it that a mortgagee has to do it?

Mr. William J. Legg: Yes, there’s the same liability, yes, sir.

But if there were --

Chief Justice Warren E. Burger: -- of the same economic risk hasn’t he?

Mr. William J. Legg: (Voice Overlap)But the mortgagee is dealing with wide holdings, a lot of economic interest is involved and he is --

Chief Justice Warren E. Burger: Not necessarily, one widow might have a mortgage on a farm or a piece of land –

Mr. William J. Legg: (Voice Overlap)But I was referring to the large mortgagees who do check.

I’m familiar with their procedures and also oil companies do check to make sure of it.

Justice Byron R. White: Is there any procedure in your state whereby owner of a mineral interest could go to the Treasurer, and to say “By the way, add me to your list of interested parties in the event, the tax isn't paid?”

Mr. William J. Legg: Well, there’s no statutory provision for that.

I don’t know whether it would be valid or not if he does --

Justice Byron R. White: Because at the recording in the clerk’s office he has noticed everybody except the purchaser of the tax deed, I guess?

Mr. William J. Legg: Yes and the County Treasurer according to this decision, yes.

Justice Byron R. White: But does the Treasurer ever receive that sort of a notice for that?

Mr. William J. Legg: I have no experience on that, Justice White, it’s --

Justice Byron R. White: It would seem sensible wouldn’t it, if you say that?

Mr. William J. Legg: The problem with it would be that if there were statute that permitted him to do that then I think it would be dependable, but if he did it --

Justice Byron R. White: It’d be sort of a second recorders office, though wouldn’t it?

Mr. William J. Legg: Yes.

It would be and there’s -- as a matter of fact, I have attempted to have instruments recorded even in the county clerk’s office, and they sometimes refuse that, because there is no statutory provision for receiving that kind of an instrument.

I think if I’ve given you the facts and the statutory law, I think that’s basically my case with the questions have been asked, thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Legg.

Mr. Rolston.

Argument of Joe S. Rolston Iii

Mr. Joe S. Rolston Iii: Mr. Chief Justice, may it please the Court.

I believe it is absolutely imperative that the chronological order of facts as to how this case reached this Court to be spelled out.

First, we’re dealing with 40 acres of land in Seminole County as Mr. Legg has indicated.

The taxes became delinquent for four years, first delinquency occurred in ‘52 and subsequently until ’55.

In 56 a resale, 1956 a resale tax deed was issued in May to the appellees.

It was filed of record on June the 6th, 1956, and it covered in addition to the 40 acres some 12 other partial to real estate.

Thereafter, in 1963, the appellees executed an oil and gas lease to Christie-Stewart Oil Company, who was actually the party plaintiff when this litigation first arose.

During the period from 1956 until 1965 when the lawsuit was filed, the Trial Court found that the appellees had been an open, notorious, and adverse, and in continuous possession of the property.

And one of the elements of the holding of the Trial Court was that the claims of the appellants was barred by the statute of limitations.

The suit by the oil company was filed in 1965 in order to perfect their lease, because their attorneys who examined the title of course realized that this was a resale tax deed, and there was always a degree of uncertainty about its validity.

The appellants then filed an answer in the cross-petitioner and brought in the appellees as party’s defendant.

The appellees then filed an answer to the Cross--Petitioner which they specifically raised the statute of limitation that the appellants were barred.

The first issues in the case the validity of the oil and gas lease was adjudicated by the trial court in 1965.

And then for some reason, unknown to my self since I was not personally involved in the original trial, the issues as between the appellant and the appellees was not decided until 1969.

During that period, an oil well was drilled upon the property and production headed.

And I’m sure that keenly increased interest of all parties when that occurred.

I think it is also absolutely necessary that this Court have a crystal clear understanding of the statutory procedure on tax sales in Oklahoma.

First of all, the statutes hold that it is the burden of the taxpayer to come forward and pay his tax.

Unknown Speaker: As to the surface owner?

Mr. Joe S. Rolston Iii: As to the surface owner, yes, Your Honor, to come forward and pay the tax.

Mr. Legg is correct and that non-producing oil and gas interest are not subject to ad valorem on tax.

They are deemed included in the surface.

Only when production first arises do severed mineral bear any ad valorem tax, and that is in lieu of tax for growth production.

After the tax has become delinquent, there is a certificate sale which occurred.

At that time, the County Treasurer runs a publication saying forth illegal description of the property in amount of tax due.

Any party can then come in and buy a certificate.

This allows the party to have a lien upon land.

One of the requirements at that time is that the purchaser must pay the full amount of the tax.

So, at that period, the County Treasurer has collected this tax.

He has performed his service as required by law and collected 100 cents on the dollar for the delinquent taxes.

The certificates holder then is required to hold the tax certificate for at least two years, and anytime after 2 years and before 10 years which bars the certificate by statute of limitations, he may apply to the county Treasurer for a tax deed.

Now the specific statute that gives the tax certificate holder that right provides that he will obtain upon receipt of the tax deed from the County Treasurer, a perfect title provided that the tax certificate holder give notice to all of the owners of the property.

Not owners as reflected by the records of the County Treasurer's office, but all of the owners.

Now there in lies the distinction --

Unknown Speaker: In the Oklahoma Supreme Court?

Mr. Joe S. Rolston Iii: That that is correct.

And the Oklahoma Supreme Court has by numerous cases held that the term owner as used in that statute and placing that burden upon the tax certificate holder includes, mortgages, it includes any land holder it includes severed mineral interest and so forth.

Now, Mr. Legg has referred to some confusion between the Supreme Court and of Oklahoma and the case involving a tax certificate deed when it did not apply the statute of limitations.

The distinction in that case is that it was a certificate deed, and it was stipulated in that case that the tax certificate holder when he applied for the tax deed, did not give the statutory notice to the then mineral owner.

And the Court said that one of the conditions precedent to you acquiring your appropriate title is that you fulfill your obligation, my statute and give the notice.

And therefore since you did not give the notice, the mineral holder’s interest was never acquired by your certificate deed.

Therefore having never acquired his interest, the statute of limitations would not run, because you were not in possession of his interest, having not acquired it in the deed.

Unknown Speaker: What is the name of the case that so held.

Mr. Joe S. Rolston Iii: Walker versus Hoffman, Your Honor.

That’s set forth in our brief.

Now if, as Mr. Legg has indicated, if there are no bidders at the tax sale then the property is bid in by the County Treasurer and he is required by law to hold the taxes for two years.

During this period of time, anyone having any interest in property is free to redeem.

The Supreme Court has also held that a non-producing mineral holder may redeem taxes at anytime and there by obtains a lien upon the interest of the surface owner, and may enforce that lien by equitable foreclosure.

Unknown Speaker: Well I gather is it, your argument then that any due process requirements are satisfied by the requirement that noted to get a perfect title, the holder of this certificate must give notice everyone including --

Mr. Joe S. Rolston Iii: That’s correct, and I don’t think Mr. Legg would raise any issue about our present statute and tax certificate.

Unknown Speaker: But my question, your answer to the due process claim is that due process is satisfied by that provision of your law.

Mr. Joe S. Rolston Iii: As to the tax certificate, yes, Sir.

Unknown Speaker: Yes.

Mr. Joe S. Rolston Iii: Because it does require notice to the owner.

Now when the property then moves on to the County Treasurer, and the County Treasurer under the law as it existed at the time this deed was issued, is required to publish.

After two years, no redemption is required to publish, and at that time the name of the owner as reflected by the records of the County Treasurer appear in the publication and the illegal description of the property in the amount of tax due, and I believe that there maybe some other matter.

Chief Justice Warren E. Burger: The owner, do you mean surface owner?

Mr. Joe S. Rolston Iii: Surface owner.

Well, that’s only record in the County Treasurer's office is the name and address of the party to whom which are paying the tax.

In that case it is the surface owner.

In many cases, if there are undivided interests in the surface owner, they may have more than one name.

Now it is interesting to note that in 1965, the Oklahoma legislature changed the statute on resale tax deed requiring not only publication, but also a mailing of a notice to the owner as reflected by the county assessor’s office.

Now as to position to appellees that this clearly wasn’t application of the Oklahoma legislature of the rules of the Mullane and the subsequent case.

Since prior of that time the surface owner even though he paid the tax, the only notice given was a publication notice.

And I think if I was in the position to having to argue before this Court that that was the same situation with the mineral owners in face of Mullane and the other cases, I could not prevail.

Clearly, I think the legislature in ‘65 when they amended the statute and required not only publication with the owners name in it, but also mailing to his last known address and reflected by the record of County Treasurer, they complied with Mullane and were attempting to comply with Mullane.

Unknown Speaker: But again that personal kind of notice under the ‘65 amendment was a notice only to the surface owner, wasn’t it?

Mr. Joe S. Rolston Iii: That’s correct.

Now, I think the Court must recognize that Oklahoma is a major producer of oil and gas.

It has been so for a number of years.

Great industries exist in Oklahoma based upon the production of oil and gas.

People since statehood have become cognizant and aware of the value of mineral interest and thus it is the exception rather than the rule in Oklahoma, nowadays, that you find a piece of ground which the minerals have not been settled.

And in many cases, if there has been production that has seized, you may find thousands, literally of various owners, the interest of which is almost beyond imagination.

And I am not aware as to whether any of you justices have had occasion to examine the title for oil and gas and rendering opinion, but I assure the Court that it results in sometimes interests that are, you have to use a computer to determine the size.

Now, based upon counsel’s argument for the appellants, all of these individuals would be entitled to notice.

Justice William H. Rehnquist: What you’re suggesting is that the 5s, 15, 16th and 116th that you have in this case is by no means the furthest mathematical progression of that you are --

Mr. Joe S. Rolston Iii: No, Your Honor, it could be out as many as 7 to 8 decimal places.

The interest as I say many of the original oil and gas fuels in Oklahoma are no longer producing and the minerals then became non-producing, and subject again to ad valorem tax by the surface.

Chief Justice Warren E. Burger: Mr. Rolston, practical matter when someone’s buying and has practicing lawyer, and the client is purchasing surface, purchasing land, does he make an independent check in these books that Mr. Legg referred to, the index to see whether there are some mineral rights?

Mr. Joe S. Rolston Iii: Well, if it please the Court, Oklahoma is an abstract title state.

The owner of the surface has an abstract of title.

All of the oil companies in purchasing leases rely upon abstracts by bonded abstracters who are examined by attorney.

These abstracts were compiled by the abstracter going to the county records, searching out all of the various records, arrangements that have been recorded.

Unknown Speaker: County clerk too?

Mr. Joe S. Rolston Iii: County clerk.

Well the county clerk is charged with the responsibility of recording instruments, all deeds, mortgages, leases, anything about the property.

Unknown Speaker: They don’t limit it to the county auditor’s record then?

Mr. Joe S. Rolston Iii: No, it’s called the county clerk Your Honor.

Chief Justice Warren E. Burger: That would then flush out any -- presumably it would flush out any claim of the subsurface rights.

Mr. Joe S. Rolston Iii: That’s correct.

It would reflect to any mineral deeds if the abstracter wasn’t instructed to obtain that type of the abstract.

It’s possible the abstracter a piece of property only as to the surface and will omit the minerals, which in many cases because of the size of the abstract that’s done.

But, at this I point out that – and one of my arguments is the great difficulty that counsel for the appellant asked this Court to place upon the County Treasurer. Oklahoma is the track index state that is when I am walk in and I file a deed covering a certain piece of property, reference to that deed is first made in the reception record indicating that it was tendered for recording.

Then it is mechanically put on an index book in particular Quarter Section Township and arranging so forth.

Indicating that on a certain day, certain warranty deed to somebody from somebody, covering a certain property where it was recorded.

That deed is then reproduced photographically, or in early by hand, in another book and page, in another book.

And in order to find the details of the conveyance such as the interest covered so forth and any addresses that might appear would require first of all that a party go to the track index book, research the title from (Inaudible) to determine where a particular deed came in the chain of title, or any particular deeds covering minerals or which might purport to covering minerals, or might be overriding all interest, or some type of reservation of life estate or so forth in the mineral.

Then the party would have to take the book and page of each of this instruments, go then to the general recording data and examine each of the instruments in order to find out what exactly the instrument said, because the reference in the track index book is merely to date it was recorded, the nature of the instrument whether it be warranty deed, mineral deed, quick claim deed, mortgage and the names of the grantor and the grantee, and the legal description of the property.

Justice William H. Rehnquist: You have a separate grantor, grantee index in your county recorders office?

Mr. Joe S. Rolston Iii: Yes, Your Honor, there is.

Justice Thurgood Marshall: Mr. Rolston, what is the interest of the state in extinguishing the mineral rights?

A great emphasis on the deed of the county clerk to collect every nickel of taxes.

You said that.

Well, once you’ve collected all of the taxes, what is the interest in extinguishing the other right?

Mr. Joe S. Rolston Iii: Alright, I’ll explain it this way, Your Honor, that if the county is not required to bid at the tax certificate sale, the county’s done with the thing it’s up to the individual tax certificate holder to proceed further if he wants to acquire the property.

If there are no bidders in the county as required by law to the bid property in, we then go to the resale.

At the resale, you can buy the tax, the property for anything less than what the tax is due, or anything more.

It is my opinion and of course not being a member of legislature, I don’t know the reasoning behind it, but it is my opinion in order to make it attractive since the taxes are now delinquent for four years for a person to bid at the resale, the legislature deemed that it be viable if you bid, then the county will give you a perfect virgin title of that property.

And that is to encourage bid, since they’ve already been aware on one time and have received no bids, and the second time out, the county can sell it for less than the tax is due or more, if there are a number of bidders.

But at that point, if the county does not, if there are no bidders at the resale, then the county is required to bid it in, and it is deeded to the county commissioners.

(Voice Overlap)Excuse Mr. Justice Marshall.

Justice Thurgood Marshall: It sounds to me, like you threw into man’s land next to it, while you’re at it?

Mr. Joe S. Rolston Iii: I would not say that that could not conceivably happen Your Honor.[Laughter]

Unknown Speaker: What happens with the producing mineral interest?

Mr. Joe S. Rolston Iii: The law is very clear in Oklahoma, producing mineral interests are the in loop growth production tax, the tax deeds do not cover producing minerals.

Unknown Speaker: They don’t cover producing minerals and they are separately owned?

The only difference is that they are producing and they are taxed separately.

Mr. Joe S. Rolston Iii: That’s correct.

Unknown Speaker: And the fractional interest are taxed separately.

Mr. Joe S. Rolston Iii: Well, the amount of production determines the amount of tax.

Unknown Speaker: I know, but who pays it?

Well, it is taken out by the oil companies at the time before they ever turned the money over to the roll owner, or the mineral owner.

So, that on producing mineral interest the Treasurer never knows who owns the mineral interest?

Mr. Joe S. Rolston Iii: No, as I understand the operator.

Unknown Speaker: It’s just the operator –(Voice Overlap)

Mr. Joe S. Rolston Iii: -- the working interest gets up for like a sales tax order.

Mr. Joe S. Rolston Iii: Sort of, that is correct, Your Honor, in my understanding to the operators.

But I would point out I think we rely most heavily on the case of Lee versus Green, which we realized is a very old case, but I still think it is very sound and of the basic points of that case, the court there said the process of taxation does not require the same kind of notice as it was required in suit at law.

Or even in proceedings for the taking of private property under the power of eminent domain.

It involves no violation of due process of law when it is executed according to customary forms and established usages, or in subordination to the principles which underlie that.

And I submit that the form of procedure employed in Oklahoma has been that way since statehood for more than 60 years that this almost this exact procedure except there’s slightly change in 1965 it’s been impossible.

Unknown Speaker: What case is that you are reading from?

Mr. Joe S. Rolston Iii: That’s Lee versus Green.

Unknown Speaker: Is that cited in your brief?

Mr. Joe S. Rolston Iii: Yes, it is.

Chief Justice Warren E. Burger: 192, this is that the one?

Mr. Joe S. Rolston Iii: Yes, this is a case involving the Nebraska’s tax law in which you involve the land holder on the piece of property and an administrative sale in it.

I consider that they dealt – this case was in rem and created a new and independent title.

I realized that this Court apparently in Mullane indicated that whether it was in rem or in personam was not necessary the criteria for determining whether you know, you were entitled to personal notice or whether publication notice was sufficient.

But I submit this Court did not destroy the distinction between the two, it merely said that it is not necessary controlling it, and I have no quarrel with that decision.

Justice William H. Rehnquist: Mr. Rolston, if the owner of the producing mineral interest becomes delinquent in his obligation to pay the lieu tax.

Can that be made a lien on that producing interest in the producing interest ultimately sold in a similar proceeding to this?

Mr. Joe S. Rolston Iii: I do not know the answer to that question.

Justice William H. Rehnquist: Well, how does the state enforce the obligation of a delinquent owner of reproducing if he has to pay the lieu tax?

Mr. Joe S. Rolston Iii: Well, the producer that is the part of who is operating the well, and collects the money from the sale, pays it directly that state the --

Justice William H. Rehnquist: What if he doesn’t pay?

Mr. Joe S. Rolston Iii: When I received my royalty check if I was fortunate to own minerals that they were producing.

It would be, it would show the gross production, last gross production taxed net to me and, that’s all I would receive.

Justice William H. Rehnquist: What if the operator who’s obligated to pay the tax or the producer for all these people doesn’t pay it, what does the state do?

Mr. Joe S. Rolston Iii: I am not familiar with the procedures implied in that situation.

Unknown Speaker: I ask again, I fail to find Lee against Green cited in your brief but you are relying on it.(Voice Overlap)

I know what it is, it is cited in the other brief, it is not cited in yours.

Mr. Joe S. Rolston Iii: I believe it is.

Unknown Speaker: At least it’s not in your index.

-- I can’t find it anywhere in the text.

But I take it now, you are relying on it?

Mr. Joe S. Rolston Iii: It is certainly an over sight on my part Your Honor, because I have always considered that my Stallwood case.

Unknown Speaker: One other question, I listened to your description of checking titles, this sounded to me just exactly like one checks titles in any other state.

Mr. Joe S. Rolston Iii: Alright, there are some states that do not use abstracts of title and employ private companies to search out for it.

Unknown Speaker: But I wondered about the significance of your displaying outline in this detailed method of checking titles.

It doesn’t seem to be particularly honors or unusual.

Mr. Joe S. Rolston Iii: No, Your Honor, I wanted the Court to be absolute certain as to the burden they would place upon the County Treasurer, if they require the County Treasurer to embark upon the search.

Bearing in mind, it would not necessarily to be one property but could be hundreds of properties that were then delinquent.

And I feel like that is a burden at this Court has not required in the Mullane or the subsequent cases.

Unknown Speaker: Do you say the Oklahoma law puts the burden on the private purchasee before he gets the perfect title.

Mr. Joe S. Rolston Iii: That’s correct.

Unknown Speaker: They’ll give everybody notice which means he has to go also through the process of the searching, as you described it, but that the Oklahoma law does not put that burden on the county Treasurer.

He’s the one who gets the title.

All he has to do is give the published notice.

And there he names as I understand it, that’s the resale, is not it?

He names only the surface on it.

Mr. Joe S. Rolston Iii: That’s correct, Your Honor.

The distinction, I draw there in the individual, the tax has been sold, and the state is no longer involved.

It is a private individual acting and there is a distinction between a private individual enforcing a right he has obtained from the state and in my mind and the right of the state to still attempt to collect their tax.

Unknown Speaker: But I take it that we still have to decide whether in the case of the acquisition on resale by the treasurer gives only the published notice you have described.

Whether that satisfies Mullane due process, don’t we?

Mr. Joe S. Rolston Iii: If the Court does not feel that the statute of limitations is barred the appellant’s right to recover which I strongly believe has.

Unknown Speaker: It has.

Mr. Joe S. Rolston Iii: That the lower court found that.

I cannot explain to this Court in anyway while the Intermediate Court of Appeals and the Supreme Court of Oklahoma made no reference to the finding by the Trial Court that the statute of limitations barred.

Unknown Speaker: Well, this is an argument that the issue isn’t even here.

Mr. Joe S. Rolston Iii: I raised it simply because I think the record shows it.

Justice William H. Rehnquist: Supreme Court of Oklahoma didn’t treat in its opinion, or did it?

Mr. Joe S. Rolston Iii: No, Your Honor.

We were there on certiorari from the adverse decision to the appellees by the Intermediate Court of Appeals of the state of Oklahoma which reversed the trial court in the --

Unknown Speaker: You have any comment on my question to your opponent about the unsettling effect of a reversal here?

Mr. Joe S. Rolston Iii: Yes, Your Honor, I certainly do and I would like to comment that, and I cite in my brief Bomford versus Socony Mobile Oil Company which is a Supreme Court case for Oklahoma where they applied the Mullane rules to service by publication and I would like to read to the Court, the last paragraph from the last paragraph of that case.

It says “Mindful of our duties guard against any attempt to upsets settled titles by the imposition of new requirements which did not exist before we declared all procedural modifications enunciated herein, shall not be construed as invalidating the publication process in the case or in any case in which the trial judgment shall have been rendered before the opinion becomes final.”

Now I submit that if this Court holds that the statute of limitations has no application, then every tax deed issued, every resale tax deed issued in the State of Oklahoma since statehood is subject to attack.

Unknown Speaker: That is not a problem, is it?

Isn’t that a state law of questioning?

Mr. Joe S. Rolston Iii: I think it’s the matter this must consider.

Unknown Speaker: The statute of imitation?

Mr. Joe S. Rolston Iii: No, consider -- what a decision by this Court would to titles within the state of Oklahoma.

Unknown Speaker: Well, you say there was a finding that the statute of limitations has barred the claim anyway?

Mr. Joe S. Rolston Iii: That was one of the trial court’s principle findings.

It appears in the appendix at the trial court’s judgment.

Unknown Speaker: Well, Mr. Rolston you didn’t on the motion to dismiss or affirm as I read your motion, rely on that is a reason that we ought not demote this appeal.

Did you?

Mr. Joe S. Rolston Iii: No, Your Honor.

Unknown Speaker: You apparently relied primarily on Lee and Green as I read your motion.

Mr. Joe S. Rolston Iii: That’s correct.

There are Oklahoma cases which relied upon that.

The most recent of which was offered to this Court in 1949, and was rejected.

The Cornelius versus Jackson I believe the case was.

But I have no dispute, Your Honor, what the courts rulings in Mullane, or City of New York, of (Inaudible), or Walker, or Wisconsin, or Schroeder.

I have no objection to all because I think those were proper results of the facts that were before the Court.

Unknown Speaker: Well, you do argue that twice before we have refused to review the issue now presented to us.

Mr. Joe S. Rolston Iii: That’s correct.

Unknown Speaker: Both in Cornelius, as I gather that was an Oklahoma case, wasn’t it?

Mr. Joe S. Rolston Iii: Yes, Your Honor.

Unknown Speaker: And then there was a Kansas case too?

Mr. Joe S. Rolston Iii: And there was a Kansas case very similar.

Unknown Speaker: Robertson and Levin.

Mr. Joe S. Rolston Iii: But I respectfully submit that the record in this case does not present sufficient fact to allow the Court to apply the rule on Mullane.

The rule on Mullane simply says, if the names are known or if they are very easily ascertainable then you must give personal notice, or something better than publication.

There are absolutely no evidentiary facts in this case that would warrant this Court of saying that the rule should be blankly applied.

No facts at all.

The one witness testified at the trial.

There were certain stipulations that no personal notice was received.

I think it would be extremely dangerous for the Court to embark upon a strict application of Mullane without having that evidentiary fact before the Court as to whether is or isn’t.

I will argue that it would be extremely difficult to find the names of these parties and Mr. Legg will argue the opposite, but that does not constitute a fact that this Court should predicate a decision upon it.

Unknown Speaker: Incidentally, that finding in statute of limitations, does that appear in your appendix, anywhere, the findings of the trial courts?

Mr. Joe S. Rolston Iii: It appears in great detail in the journal after the judgment of the trial court.

Unknown Speaker: Well, I mean does that --

For the statute of limitations?

For it, or just the fact that the statutory procedures where carried out here?

Mr. Joe S. Rolston Iii: Well, also that not only the deed was issued in compliance with all the statutory requirements but that the five year statute of limitations indeed applied, and that the party, the appellees have been open untoward possession, that maybe in the jurisdictional statement, and not reducing for the court in the appendix.

Unknown Speaker: You said I’d find that in the --

Justice William H. Rehnquist: Mr. Rolston, it’s in appendix B to their jurisdictional statement isn’t it though?

Mr. Joe S. Rolston Iii: I believe so.

Justice Thurgood Marshall: Mr. Rolston, some of these subsurface deeds are files right?

Mineral rights deeds are filed, aren’t they?

Mr. Joe S. Rolston Iii: Yes, Your Honor.

There is no, requirement that the mineral deeds be filed but in most cases they are.

Justice Thurgood Marshall: Well, would it be too much to require that the county check to see if one is filed and noted by hand?

Mr. Joe S. Rolston Iii: In my opinion, it would Your Honor.

It would require skilled parties not just -- they would have to determine the nature of the interest not only just because a mineral deed appeared then you would have to check to see where that interest had been conveyed at.

You must ultimately arrive at who the present owners are or you haven’t accomplished anything.

There maybe --

Justice Thurgood Marshall: Well, that’s not what I said.

I said that one man files a deed.

Would it be too much to notify him even though he has sold it?

Mr. Joe S. Rolston Iii: You mean the County Treasurer?

Justice Thurgood Marshall: Yes.

Mr. Joe S. Rolston Iii: No, Your Honor but I don’t think that you cannot say that every piece of property is going to have just one deed that therein lies the problem.

I think that we may in most cases be dealing with literally hundreds rather than one.

Justice Thurgood Marshall: You’d have a hundred mineral deeds on one piece of problem?

Mr. Joe S. Rolston Iii: Very easily, Your Honor.

160 acres of land, the mineral interest as I’ve point out the Court can be divided up as many as six decimal places.

The interest is just -- it’s very difficult, I understand for justice to --

Justice Thurgood Marshall: Well, you could break up the service the same way.

Mr. Joe S. Rolston Iii: Yes, that’s true.

Justice Thurgood Marshall: And you still would have to notify them?

Mr. Joe S. Rolston Iii: Because their names would appear on the records of County Treasurer, if they are being assessed as to their interest.

But there is no dispute as to the facts that the name of the non-producing mineral owners does not appear on the county records or the County Treasurer’s office.

And I --

Justice Thurgood Marshall: But it’s in the office right next to it, it could be.

Mr. Joe S. Rolston Iii: But I cite to the Court, the case of Ponder versus Ebby which the Supreme Court of Oklahoma there specifically held that it was the legislature’s intent that the County Treasurer was not to look beyond his own records in throwing notices.

And I think that was clearly the intent of the legislature and the --

Justice Thurgood Marshall: But that doesn’t make it legal?

Mr. Joe S. Rolston Iii: No, Your Honor.

But that was their intent and not requiring that he go outside of his office.

Chief Justice Warren E. Burger: What’s that case again, the last one you’ve just cited on?

Mr. Joe S. Rolston Iii: Ponder versus Ebby.

Thank you.

Justice Byron R. White: Before you sit down, may I ask Mr. Rolston.

Is this provision at page 17?

As to the statute of limitations, the Court further finds orders of judges and decrees it from the date of the recording and says “We sale tax deed.” On June 6, 1956, Garrett and Vaughn have been an open continuous exclusive and hostel possession and so forth.

And that said contesting substitute of party defendants are further forever barred and precluded by the statutes of limitations and seeking to a assert the invalidity of said resale tax deed, is that what you had referenced to?

Mr. Joe S. Rolston Iii: That’s correct Your Honor, and I --

Justice Byron R. White: And who are the contesting substituting party defendants?

Mr. Joe S. Rolston Iii: The original parties are deceased in their administrators and executors have been substitute.

Justice Byron R. White: Whom do you represent?

Mr. Joe S. Rolston Iii: The appellees, the purchasers at the resale tax.

Justice Byron R. White: What is the relevance in this appendix of the journal entry of judgment on page 15?

Mr. Joe S. Rolston Iii: The appendix, Your Honor.

Justice Byron R. White: Or is it journal entry of judgment on the 14th day of June, 1965 and in your appendix b to the jurisdictional statement, there is a journal entry of judgment with respect to a later date.

Mr. Joe S. Rolston Iii: The first adjudication by the trial court at ‘65 was that the oil company did have a valid lease.

It had leases from both parties at that time.

Justice Byron R. White: Well, that isn’t what this says.

Mr. Joe S. Rolston Iii: As I pointed out to Court, I did not try the original case in the trial court.

Justice Byron R. White: Because this particular general entry of judgment and the case is styled under the same number and the same heading.

There’s no reference to statute of limitations.

I thought maybe there might have been different entries of judgments with respective different parties, different tracts of land.

Mr. Joe S. Rolston Iii: Mr. Legg maybe able to answer the Court.

Chief Justice Warren E. Burger: Mr. Legg, you have two minutes left.

Rebuttal of William J. Legg

Mr. William J. Legg: Well, in answering Justice White’s question, this journal entry of judgment on June 14th, 1965 did what Mr. Rolston said.

It simply determined that the oil company owned a lease on these 40 acres whichever way the title was finally decided as between the mineral owners.

As between my clients and his clients but then there was a later journal entry of judgment which is in the jurisdictional statement that determines --

Justice Byron R. White: Well in then, there is a finding then in the trial court that you were barred by statute of limitations anyway?

Mr. William J. Legg: There is a finding that the statute of limitations run, yes sir.

But, it was not argued in the appeal to the Court of Appeals, and no decision was made, and it was not argued in the Supreme Court of Oklahoma and no decision was made.

Justice Byron R. White: You’re the one that went to the Court of Appeals?

Mr. William J. Legg: Yes, we appealed.

Justice Byron R. White: And you didn’t appeal from that finding?

Mr. William J. Legg: No.

Chief Justice Warren E. Burger: And then when the Supreme Court restarted the trial court’s judgment, those findings remain extent, is that not correct?

Mr. William J. Legg: Yes, true.

May I make three explanations?

The reason for the four year gap in the pursuit of this case that the Mr. Rolston noted was that there were some estates pending and it wasn’t carried forward until those estates were closed.

Then I would also like to point out that Oklahoma is the least is an example of the least strict tax foreclosure procedure in the United States.

It’s strictly judicial, I mean strictly administrative, it has no, you don’t have to ever go in to Court, you don’t have to ever give any notice except this publication service and there are 11 states in that category according to my research and there are 14 states however that have fully judicial tax lien foreclosure procedures, where you have to bring all parties into Court and foreclose it just like you would mortgage it.

In that situation there would have to be a process issued to everyone.

And so, we have 11 states with least strict 14 states with more strict and we have 39 states, either more strict or somewhere in the middle where they have, even though they’re using an administrative procedure, they have to give notice either formal process, or mailing, or of some nature that goes beyond just the publication in this case.

Unknown Speaker: Mr. Legg can we go back to this, your appeals up to the State Court system, you did not appeal from this finding that the statute of limitations barred you?

Mr. William J. Legg: We appealed from --

Unknown Speaker: That is to the Intermediate Court of Appeals, you did not bring this up.

Mr. William J. Legg: We appealed from the decision.

We did not specify that particular-- it’s my recollection that there’s nothing in our appeal documents that touches on that but I wouldn’t want to be bound by that statement.

There maybe something that we appeal from the total decision but our basis of appeal -- our strong argument was on the basis of Mullane, and that was from the very first.

This particular point was not contested strongly, it may have been touched upon but it wasn’t --

Unknown Speaker: But what did you win on Mullane that under state law you were barred anyway?

By the statute of limitations, I mean why did you appeal on just Mullane, it would not do you any good.

Mr. William J. Legg: We felt that there was a constitutional issue here and this is what we were primarily concerned with.

Unknown Speaker: Why is that if you’re right on the constitutional issue then the statute couldn’t have started to run because you wouldn’t have had to put notice on the constitution?

Mr. William J. Legg: Yes, that is one argument that --

Unknown Speaker: That was the same as in the Schroeder case as I remember it.

Mr. William J. Legg: That is exactly right, the --

Unknown Speaker: Schroeder against New York.

Mr. William J. Legg: The Schroeder case would stand --

Unknown Speaker: There was a claim there on the statute of limitations.

Mr. William J. Legg: No, statute?

Unknown Speaker: But Mrs. Schroeder said, “Well, I couldn’t run cause I didn’t have the notice.”

Mr. William J. Legg: You are right.

Unknown Speaker: Is it?

Justice Byron R. White: There was a previous Oklahoma case that said, in resale cases the possession of the surface is noticed?

Mr. William J. Legg: In Oklahoma decision, yes.

Justice Byron R. White: Yes.

Mr. William J. Legg: There is --

Justice Byron R. White: You didn’t attack that, did you?

Mr. William J. Legg: There is dictum on that point in the Walker versus Hoffman.

Justice Byron R. White: When was that decided?

Mr. William J. Legg: That was 1965 case.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.