IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 118,387
JASON OIL COMPANY, LLC,
Appellee,
v.
FRANK E. LITTLER, et al.,
Defendants,
(Debra Baldwin Burkhart, Susan Baldwin Manes, and James Baldwin),
Appellants,
and
(F&E Littler, LLC, Janice Stull, Craig Stull, Jerilyn Ann Stull, and Michael Stull),
Appellees.
SYLLABUS BY THE COURT
When a grantor of real property retains a defeasible term-plus-production mineral
interest by exception in the deed of conveyance, thereby conveying to the grantee a future
interest in the mineral interest, that conveyance of a future interest is not subject to the
common-law rule against perpetuities.
Appeal from Rush District Court; BRUCE T. GATTERMAN, judge. Opinion filed August 16, 2019.
Judgment of the district court is affirmed.
John L. Richeson, of Anderson & Byrd, LLP, of Ottawa, argued the cause, and Jeffrey A. Wilson,
of the same firm, was with him on the briefs for appellants.
Kenneth L. Cole, of Woelk & Cole, of Russell, argued the cause and was on the brief for appellee
Jason Oil Company, LLC.
1
Robert E. Bauer, of Bauer, Pike, Bauer & Wary, LLC, of Great Bend, argued the cause, and Kate
M. Wary and Greg L. Bauer, of the same firm, were with him on the brief for appellees F&E Littler, LLC,
Janice Stull, Craig Stull, Jerilyn Ann Stull, and Michael Stull.
David E. Pierce, of Topeka, was on the brief for amicus curiae Eastern Kansas Oil & Gas
Association.
Joseph A. Schremmer and Charles C. Steincamp, of Depew Gillen Rathbun & McInteer, LC, of
Wichita, Tyson Eisenhauer, of Johnston Eisenhauer Eisenhauer & Lynch, LLC, of Pratt, and Tyler K.
Turner, of Jeter Law Firm, LLP, of Hays, were on the brief for amicus curiae Kansas Independent Oil &
Gas Association.
Will B. Wohlford, Roger L. Theis, and Jonathan A. Schlatter, of Morris, Laing, Evans, Brock &
Kennedy, Chartered, of Wichita, were on the brief for amicus curiae Wichita Association of Petroleum
Landmen.
The opinion of the court was delivered by
JOHNSON, J.: This is a quiet title action involving the mineral interests in two
tracts of real estate that were conveyed by deeds in which the grantor excepted the
mineral interests for a "period of 20 years or as long thereafter" as minerals may be
produced. The grantor's successors in interest (Grantor's heirs) claim that the future
interests in the minerals that the deeds purported to convey to the grantees—that is,
ownership of the minerals when grantor's excepted term interest ended—violated the
common-law rule against perpetuities (the Rule), thereby voiding those conveyances ab
initio and preventing them from subsequently devolving to the grantees' successors in
interest (Grantees' heirs). Consequently, Grantor's heirs now claim full ownership of the
mineral interest in both tracts.
2
The district court relied on the intent of the parties to the original deeds to find that
the Grantees' heirs obtained ownership of the minerals when 20 years expired without
production on the property. We affirm the district court's result, but on different grounds.
We determine that the common-law rule against perpetuities, being a rule founded upon
public policy, should not be applicable to the circumstances presented here.
FACTUAL AND PROCEDURAL OVERVIEW
The parties do not dispute the facts. On December 30, 1967, Frank E. Littler
(Grantor) executed two deeds conveying tracts of real estate situated in the same section,
to-wit: Section 20, Township 16 South, Range 19, West of the 6th P.M., Rush County,
Kansas. He conveyed the East Half of the section (East Tract) to Franklin G. Littler and
Elaine Littler (Littler Grantee). He conveyed the Northwest Quarter of the section
(Northwest Tract) to Ruby I. Myers and George E. Myers (Myers Grantee). The Littler
Grantee and the Myers Grantee will be collectively referred to as Grantees. Both the deed
transferring the East Tract and the deed transferring the Northwest Tract contained the
following language:
"EXCEPT AND SUBJECT TO: Grantor saves and excepts all oil, gas and other minerals
in and under or that may be produced from said land for a period of 20 years or as long
thereafter as oil and/or gas and/or other minerals may be produced therefrom and
thereunder." (the reservation).
On December 28, 1973, in Rush County Probate Case No. 3802, a Journal Entry
of Final Settlement distributed specified percentages of the residue of Grantor's estate,
which would encompass any excepted interest in the above-described real estate, to
children and grandchildren. Some of the Grantor's grandchildren and great-grandchildren
who succeeded to the residuary interests under Grantor's will are the Grantor's heirs
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claiming the invalidity of Grantor's conveyance of the future interest in minerals to the
Littler Grantee and the Myers Grantee.
From the expiration of the 20-year term of years, December 30, 1987, to the date
the district court filed its memorandum decision granting summary judgment to the
Grantees' heirs, May 31, 2017, there was no drilling operation conducted on either the
East Tract or the Northwest Tract, and no oil or gas or other minerals was ever produced
from either tract.
In 2016, Jason Oil Company, LLC (Jason Oil) filed its amended petition to quiet
title to both tracts, claiming to hold valid and subsisting oil and gas leases. With respect
to the Northwest Tract, the petition alleged that Michael L. Stull, Jerilyn Ann Stull, and
Craig A. Stull—successors to the interests of the Myers Grantee—own all of the oil, gas,
and other minerals in and under the property. With respect to the East Tract, the petition
alleged that F&E Littler, LLC—presumably the successor to the interests of the Littler
Grantee—owns all of the oil, gas, and other minerals in and under the property.
Debra Baldwin Burkhart, Susan Baldwin Manes, and James Baldwin and others
(Grantor's heirs) answered, claiming an interest in the mineral rights through Frank E.
Littler's will, as his grandchildren and great-grandchildren. In a motion for judgment on
the pleadings, the Grantor's heirs argued that after the deeds were executed and delivered,
Grantor was vested with a fee simple determinable in the mineral rights and the Littler
Grantee and Myers Grantee held springing executory interests in the minerals which were
subject to and invalidated by the Rule.
Michael Stull, Jerilyn Ann Stull, Craig Stull, Janice Stull, and F&E Littler, LLC,
as Grantees' heirs, also answered. They admitted all of the allegations in Jason Oil's
amended petition and cross-claimed against all other defendants, alleging that Michael
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Stull, Jerilyn Ann Stull, and Craig Stull owned the Northwest Tract minerals as
successors to the Myers Grantee and that F&E Littler, LLC owned the East Tract
minerals as successors to the Littler Grantee. Alternatively, Grantees' heirs asserted that if
the court determined the future interest in minerals conveyed by Grantor violated the
Rule, the interests should be reformed under the Uniform Statutory Rule Against
Perpetuities (USRAP) specifically under K.S.A. 59-3405(b) to conform with the intent of
the parties and avoid violating the Rule.
The Grantor's heirs filed a motion for summary judgment seeking a ruling that the
future interests in minerals created in the deeds are springing executory interests that are
void under the Rule; that USRAP, including K.S.A. 59-3405(b), is void for violating
Article II, § 16 of the Kansas Constitution because it was passed in a bill containing more
than one subject; and that ownership of the minerals lying in and under both Tracts
passed with the residue of Frank E. Littler's estate as stated in the Journal Entry of Final
Settlement of the probate case.
The district court granted the Grantees' heirs' contested motion for bifurcation,
ruling that the court would not determine whether USRAP violated Article II, § 16 of the
Kansas Constitution until it determined the threshold issue of whether the mineral
interests violated the Rule.
The Grantees' heirs and Jason Oil responded in opposition to the Grantor's heirs'
motion for summary judgment. The Grantees' heirs filed their own summary judgment
motion.
On May 31, 2017, the district court denied the Grantor's heirs' motion and granted
summary judgment to the Grantees' heirs. The district court noted that "[t]here is no
serious dispute that Frank E. Littler [Grantor] conveyed all of his interest in the subject
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properties to the respective grantees, subject only to the grantor's express reservation,
excepting and saving a term mineral interest." The court found that when construing
deeds, all other rules are subordinate to the intention of the grantor and Frank E. Littler's
intention "could not be clearer than stated." With respect to classifying the mineral
interests, the court found:
"Frank E. Littler granted less than the entire interest in the subject real estate and created
a defeasible estate by reservation. The defeasible term mineral interest in each deed is a
future estate reserved to the grantor and a reversion. A reversion remaining in the grantor
is not subject to the [Rule]."
The district court also considered the public policy underlying the Rule and found that
Grantor's reservation had not restricted alienation of the surface and mineral estates of the
real property in question.
The Grantors' heirs filed a motion to alter or amend the judgment requesting that
the district court change its analysis to focus on the future interest created in the grantees
and hold the Rule applied to the grantees' interests. If the court continued to rule for the
Grantees' heirs, the Grantor's heirs requested an order quieting title in the Grantees' heirs
to ensure the judgment was a final appealable order. The district court granted the request
to quiet title but denied the remainder of the motion to alter or amend. After the Journal
Entry of Judgment Quieting Title was filed, the Grantor's heirs timely appealed to the
Court of Appeals.
This court granted the Grantor's heirs' motion to transfer the appeal from the Court
of Appeals and granted motions to file amicus curiae briefs on behalf of the Kansas
Independent Oil & Gas Association (KIOGA), the Eastern Kansas Oil & Gas Association
(EKOGA), and the Wichita Association of Petroleum Landmen (WAPL).
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THE APPLICABILITY OF THE COMMON-LAW RULE AGAINST PERPETUITIES
We are asked to decide a question of first impression in this state that carries the
potential of voiding innumerable transfers of mineral interests and creating marketable
title problems of epic proportions. Does the common practice of reserving a term interest
in minerals that continues so long as minerals are produced create a springing executory
interest that must be invalidated by the Rule?
Standard of Review
This court has unlimited review for two reasons. First, the parties agree that the
material facts are uncontroverted; therefore, this court reviews the district court's
summary judgment decision de novo. See Superior Boiler Works, Inc. v. Kimball, 292
Kan. 885, 890, 259 P.3d 676 (2011).
Second, "[t]he interpretation and legal effect of written instruments are matters of
law over which appellate courts exercise unlimited review." Thoroughbred Assocs. v.
Kansas City Royalty Co., 297 Kan. 1193, 1207, 308 P.3d 1238 (2013); see also Rucker v.
DeLay, 295 Kan. 826, 830, 289 P.3d 1166 (2012) (in case decided based on documents
and stipulated facts, appellate court has de novo review over whether royalty interest is
void under the rule against perpetuities); Central National Resources v. Davis Operating
Co., 288 Kan. 234, 240, 201 P.3d 680 (2009) (legal effect of coal deed is a question of
law subject to unlimited review).
7
Analysis
We begin by discussing the Rule. It "'precludes the creation of any future interest
in property which does not necessarily vest within twenty-one [21] years after a life or
lives presently in being, plus the period of gestation, where gestation is, in fact, taking
place.'" Rucker, 295 Kan. at 831 (quoting Singer Company v. Makad, Inc., 213 Kan. 725,
728-29, 518 P.2d 493 [1973]). In the context of a decedent's estate, we opined: "The test
for determining whether an interest violates the rule is simple: Can a hypothetical case
be posed, based upon the facts as they existed at the date of the testator's death, in which
the interest will vest later than lives in being and 21 years?" In re Estate of Freeman, 195
Kan. 190, 196, 404 P.2d 222 (1965). This court has also explained, "[w]here the twenty-
one [21] year period has no reference to a life or lives in being, it has been said to be in
gross, and the devise or grant is not too remote if the contingency must happen within
that time." Singer, 213 Kan. at 729.
In Kansas, the Rule "began as a creation of common law." Rucker, 295 Kan. at
830. In 1992, the Kansas Legislature "codified and somewhat modified" the Rule by
adopting USRAP, K.S.A. 59-3401 et seq. 295 Kan. at 830. USRAP supersedes the Rule;
however, this statutory modification applies only to nonvested property interests "created
on or after the effective date of this act." K.S.A. 59-3405(a); see also Gore v. Beren, 254
Kan. 418, 429, 867 P.2d 330 (1994) (holding USRAP did not apply to property interest
created in 1962). So USRAP's modification of the Rule does not apply to the property
interests the deeds created in 1967. Therefore, we must determine whether the common-
law Rule applies in this case. See K.S.A. 77-109 ("The common law as modified by
constitutional and statutory law, judicial decisions, and the conditions and wants of the
people, shall remain in force in aid of the General Statutes of this state.").
8
The Grantor's heirs first argue the district court erred when it analyzed whether the
present interests the Grantor kept violated the Rule. They assert that the district court
should have analyzed the future interests Grantor conveyed to the Grantees. We agree
with the Grantor's heirs on this point.
The district court's decision contained the following conclusions classifying the
interests:
"1. Frank E. Littler, as the grantor in each deed, reserved a defeasible term mineral
interest.
"2. The future estate kept by Littler in the mineral interest of the subject property was a
reversion.
....
"5. The reservation of the defeasible term mineral interest by Frank E. Littler was a
reversion, and was not subject to the [Rule]." (Emphases added.)
With regard to conclusion number 1, the district court's finding that Grantor's
mineral interest was a "defeasible term mineral interest" is accurate under Kansas law,
albeit Kansas courts have not addressed such a classification issue in the context of a
Rule violation challenge. See Classen v. Federal Land Bank of Wichita, 228 Kan. 426,
437, 617 P.2d 1255 (1980) (describing a tract "subject to a defeasible term one-fourth
mineral interest of the [grantor] created in a single instrument for a primary term of
twenty years . . . and so long thereafter." [Emphases added.]); see also Dewell v. Federal
Land Bank, 191 Kan. 258, 260, 380 P.2d 379 (1963) ("This court has held in a long line
of decisions that the conveyance or reservation of minerals in place by deed for a primary
term and so long thereafter as oil or gas is produced or the premises are being developed
9
creates a base or determinable fee."), overruled on other grounds by Classen, 228 Kan.
426; Wilson v. Holm, 164 Kan. 229, 234-35, 188 P.2d 899 (1948) ("[I]n this state a deed,
conveying oil and gas in place for a fixed term of years and so long thereafter as either or
both are produced in paying quantities, creates a base or determinable fee and that title to
the estate so created vests immediately upon the execution and delivery of such an
instrument but remains defeasible in the event of cessation of production."); Williams &
Meyers, Manual of Oil and Gas Terms, 272 (17th ed. 2018) (defining "defeasible-term
interest" as "[a] mineral, royalty or nonexecutive mineral interest for a fixed term of years
and for an indefinite period of time thereafter, usually so long as oil or gas is produced").
In its conclusions 2 and 5, the district court veered off course. The defeasible term
mineral interest Grantor kept was a present interest. Compare 3 Restatement (Third) of
Property § 24.1 (2011) ("A present interest is an ownership interest in property that
entitles the owner to possession or enjoyment of the property."), with 3 Restatement
(Third) of Property § 25.1 (2011) ("A future interest is an ownership interest in property
that does not currently entitle the owner to possession or enjoyment of the property. The
owner's right to possession or enjoyment is postponed until some time in the future and
may be contingent or vested."). Before the conveyances, Grantor owned the mineral
interests outright and possessed all of the incidents of ownership; he had a vested interest
in the minerals. After the conveyances, Grantor possessed the same incidents of
ownership; those incidents could be presently enjoyed or exercised, i.e., his interest in the
minerals remained vested after the conveyances and for at least 20 years.
In classifying the defeasible term mineral interest as a future interest, the district
court relied on Rucker. But that case dealt with a royalty interest, which is not analogous
to the mineral interest at issue here. A royalty interest is personal property, whereas a
mineral interest is real property. Rucker, 295 Kan. at 830; see also Oxy USA v. Red Wing
Oil, 309 Kan. 1022, 1025-27, 442 P.3d 504, 507-08 (2019) (misappropriation of a royalty
10
is not adverse possession of the minerals in place because a royalty is mere personal
property while minerals in place remain real property); Shepard, Executrix v. John
Hancock Mutual Life Ins. Co., 189 Kan. 125, 130-31, 368 P.2d 19 (1962) ("The term
'mineral interest' means an interest in and to oil and gas in and under the land and
constitutes present ownership of an interest in real property."). Moreover, we have
caselaw holding that a royalty interest created in a transferee is a future interest that vests
at production. Rucker, 295 Kan. at 835-36. Nevertheless, the district court was correct in
holding that the Rule did not apply to Grantor's excepted interest, albeit for a different
reason. The interest was not a reversion, but rather it was a present, vested interest to
which the Rule is simply inapplicable.
The future interest created by the deeds that the district court should have focused
on is the interest in the minerals that passed to the Grantees. That interest is the right for
the Grantees to have full possession and use of the mineral interest following the
expiration or termination of the Grantor's reserved defeasible term interest. By the terms
of the reservation, the earliest vesting of Grantees' future interest was December 30,
1987, the end of the 20-year term. But because the Grantor retained the possession and
use of the mineral interest in each tract for so long after December 30, 1987, that minerals
were being produced from the respective tract, the actual date upon which the future
interests would vest in Grantees could not have been ascertained when the deeds were
executed, i.e., when the future interests were created. At that time, the possibility existed
that oil or gas could be discovered underlying either or both tracts and that the tracts
would continue to produce minerals for more than 21 years after the death of the last of
the Grantor's heirs or Grantees' heirs who were alive on December 30, 1967. In other
words, the future interest would violate the Rule. Our task, then, is to determine whether
the Rule should be applied to this type of future interest.
11
The Grantor's heirs acknowledge that this case presents an issue of first impression
as it relates to this particular reserved defeasible term mineral interest, notwithstanding
that such reservations have been commonly used in this state for a long time. But they
nevertheless rely on the doctrine of stare decisis, contending that our caselaw applying
the Rule to future interests in other contexts mandates a reversal. Moreover, they argue
the Rule must be applied to avoid uncertainty and confusion in the area of real estate
titles. Specifically, the Grantor's heirs assert that the Grantees' future interest should be
labeled either a springing executory interest or a contingent remainder, both of which are
void under the Rule. See Trustees of Endowment Fund of Hoffman Memorial Hosp.
Ass'n. v. Kring, 225 Kan. 499, 502, 592 P.2d 438 (1979) ("An executory interest is not a
vested estate and is subject to the rule against perpetuities."); McEwen v. Enoch, 167
Kan. 119, 122, 204 P.2d 736 (1949) ("The distinction between vested and contingent
interests is of great importance as concerns the rule against perpetuities, for a true vested
interest is never obnoxious to the rule, while a contingent interest not only may be, but
often is.").
The Grantor's heirs primarily rely on Beverlin v. First National Bank, 151 Kan.
307, 98 P.2d 200 (1940), a case holding that a contingent class gift to the testator's
grandchildren violated the Rule. The testator gave one-third of his property to each of his
two daughters but to be held in trust until they reached 40 years of age. If a daughter
reached age 40, her interest became indefeasible and an absolute legal interest. But if a
daughter died before she attained age 40, then her property divested, and if she had
children, the testator's grandchildren who attained age 25 received the gift. This court
held that the executory devise to the grandchildren was a class gift to a group capable of
future change in number; therefore, it violated the Rule because it could possibly vest too
remotely. 151 Kan. at 310-12.
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The Grantor's heirs also point to Kring, where a trust provided a present interest
for the benefit of a hospital's maintenance. Should the hospital cease to be operated as a
hospital, the fund became the property of a third party or his heirs. This court held the gift
over to the third party or his heirs violated the Rule. The court reasoned the gift over
appeared to be an executory interest, but if it was not an executory interest, it was a
contingent remainder, and both interests were subject to the Rule. Kring, 225 Kan. 502-
03.
Beverlin and Kring provide some support for the Grantor's heirs' arguments under
traditional property law classifications. But as the Grantees' heirs argue, Beverlin and
Kring addressed far different property interests created in a different manner than the
future interest created by the Grantor's reservation at issue in this case. No Kansas case
has addressed whether to apply the Rule to a grantee's future interest in minerals
following the grantor's reservation of a defeasible term mineral interest. Given that the
Rule is a creature of common law and we have no binding precedent, we are free to
decide whether the Rule should apply in this context.
The Grantees' heirs contend that property scholars and courts are moving away
from the traditional classifications of future interests; therefore, this court should not feel
compelled to classify their future interest as an executory interest subject to the Rule.
Rather, they ask us to join the modern trend tempering the Rule, and, if the future interest
must be classified at all, it should be designated as a reversion, possibility of reverter, or a
vested interest not subject to the Rule. See Rucker, 295 Kan. at 832 (vested remainders
and reversions are not subject to the Rule); Kring, 225 Kan. at 502 ("It is universally
agreed that the possibility of reverter is not within the rule.").
As the Grantees' heirs point out, out-of-state authority addressing this issue has
overwhelmingly declined to apply the Rule to void similar future interests, utilizing a
13
variety of property law classifications and policy rationales. See, e.g., ConocoPhillips Co.
v. Koopmann, 547 S.W.3d 858, 873 (Tex. 2018) ("[I]n this oil and gas context, where a
defeasible term interest is created by reservation, leaving an executory interest that is
certain to vest in an ascertainable grantee, the Rule does not invalidate the grantee's
future interest."); Williams v. Watt, 668 P.2d 620, 632-33 (Wyo. 1983) (holding that
under the unique characteristics of mineral interests, an excepted and reserved defeasible
term-plus-production mineral interest could be treated as a life estate that was certain to
pass automatically to the grantee upon the "demise" of the prior mineral estate); Earle
v. International Paper Co., 429 So. 2d 989, 994-95 (Ala. 1983) (applying a fictitious two-
grant theory to classify a defeasible term-plus-production mineral interest excepted and
reserved in the grantor as creating a reservation through an implied regrant from the
grantee to the grantor); Bagby v. Bredthauer, 627 S.W.2d 190, 194-96 (Tex. App. 1981);
(applying a fictitious two-grant theory to classify an interest excepting and reserving a
term-plus-production defeasible term royalty interest [an interest in land under Texas
law] in the grantor as if the grantor had conveyed his entire royalty interest to the grantee
and then had the grantee convey the same back to the grantor). Compare Rousselot v.
Spanier, 60 Cal. App. 3d 238, 241, 131 Cal. Rptr. 438 (1976) (holding deed excepting
and reserving term-plus-production mineral interest created a profit à pendre, an interest
in real property in the nature of an incorporeal hereditament, "'essentially
indistinguishable from [an] easement[]'" and not subject to the Rule), with Victory Oil
Co. v. Hancock Oil Co., 125 Cal. App. 2d 222, 224, 230-36, 270 P.2d 604 (1954) (noting
a deed excepting and reserving minerals for a period of five years, and "'in the event'"
minerals were found within the 5-year period, continuing for 20-years-plus production,
was void under the Rule; additionally noting there was production on the land in the
secondary term).
The Grantees' heirs acknowledge that some of those foreign cases ignore, or
change, well-established labels historically applied to future interests in real property and
14
that some of the cases employ contrived theories. But they argue that we should follow
suit because of the practical implications for mineral ownership and the chaotic impact on
the oil and gas industry that would occur if the Rule were applied to these types of
transactions. For example, pointing to Earle and Bagby, the Grantees' heirs argue that it is
absurd to hold that the deeds here violate the Rule because each future interest was
conveyed using only one instrument when the grantor and grantee clearly could have
accomplished the same end result without implicating the Rule if they had utilized two
instruments: a grant of all interests and a regrant of the term mineral interest.
The Grantor's heirs do not dispute that structuring the transaction as a double
conveyance would have avoided the creation of a Rule violation. Nevertheless, they insist
we must apply the Rule to the actual instruments that were utilized here, and those
instruments created future interests that are void under the Rule.
The Grantor's heirs also quibble that the deeds created an exception—not a
reservation—of the defeasible term interest. Given the obvious intent of the parties, as
corroborated by the district court's findings, we decline to drill down into the traditional
property law distinction between exceptions and reservations. See Earle, 429 So. 2d at
993 ("'[C]ourts construe a reservation as an exception, and vice versa, in order to give
effect to the obvious intention of the parties.'").
Further, we decline the invitation to adulterate the traditional, and long-standing,
definition of the future interest in realty that was created by the deeds' language.
Likewise, we decline the invitation to employ a legal fiction, such as the grant and a
regrant theory. Rather, we will construe the deeds that were actually used, not those that
could have been used. Under that straightforward methodology, we determine that the
deeds created in the Grantees a springing executory interest. If the Grantees' heirs are to
receive what the original parties to the deed obviously intended the Grantees to have, it
15
will be because this court carves out a narrow exception to the common-law rule against
perpetuities in this state, making the Rule inapplicable to a reserved (or excepted)
defeasible term mineral interest of the kind presented here.
In making the determination of whether to make this narrow exception to the
common-law Rule, it is helpful to take a look at our prior statements about the purpose of
having the Rule:
"The policy considerations behind the rule against perpetuities are clear.
"'The rule against perpetuities springs from considerations of
public policy. The underlying reason for and purpose of the rule is to
avoid fettering real property with future interests dependent upon
contingencies unduly remote which isolate the property and exclude it
from commerce and development for long periods of time, thus working
an indirect restraint upon alienation, which is regarded at common law as
a public evil.' First Nat'l Bank & Trust Co. v. Sidwell Corp., 234 Kan.
867, Syl. ¶ 8, 678 P.2d 118 (1984).
"The rule was first developed 'to prevent the practice of tying up family property for
generations and thereby creating unreasonable restraints upon the alienation of property.'
Barnhart, 235 Kan. at 517." Gore, 254 Kan. at 428-29.
See also In re Estate of Woods, 181 Kan. 271, 280, 311 P.2d 359 (1957) ("Broadly stated,
the rule against perpetuities is grounded traditionally on a farsighted public policy which
frowns on the total exclusion of property from commerce for long periods of time and is
supported by the practical needs of modern times."); Freeman, 195 Kan. at 200 ("[T]he
purpose of the rule against perpetuities . . . is to keep property alienable within the
reasonable limits fixed by the rule."). Cf. Singer, 213 Kan. 725, Syl. ¶ 2 ("The modern
16
tendency is to temper the rule if possible where its harsh application would obstruct or do
violence to an intended scheme of property disposition.").
With respect to the purpose behind the Rule, the Grantor's heirs assert that
"Kansas courts seem to have missed the nature of the Rule's origin, though there is
still time to right the ship." They contend that the Rule is designed to accomplish three
related objectives: (1) balancing the rights of the current owner and future owner;
(2) contributing to the utilization of wealth in society; and (3) ensuring property can be
used to meet the urgent needs of its current owners. But in their view, modern courts have
improperly synthesized these considerations into a policy of ensuring property is
alienable. They argue that courts should instead focus on ensuring the present interest
holder may enjoy all of the rights attendant to that interest. Ultimately, the Grantor's heirs
insist that the Rule must be applied "remorselessly," without regard to whether the
property at issue is alienable and without regard to the grantor's intent.
Apparently, when it comes to the public policy behind our common law, the
Grantor's heirs are no longer enamored with the principle of stare decisis. As the
Grantees' heirs counter, Kansas courts have clearly adopted alienability of property as an
overarching policy for the Rule's continued application in this state. We see no reason to
depart from that precedent.
Our next step, then, is to assess how applying the Rule in this circumstance would
comport with the policy behind the Rule. The Grantees' heirs contend that expanding the
Rule to void the future interest following the reserved defeasible term mineral interest in
this case serves no valid purpose or public policy, but rather it would be a nonsensical
act of legal formalism. They point out that this court has previously rejected the
"remorseless" approach the Grantor's heirs ask this court to apply. Cf. Freeman, 195 Kan.
at 200 (holding that valid parts of will could stand despite invalidity of certain devises
17
under the Rule and stating "[t]his court has never adhered to the classical view of
'remorseless' construction developed in England"). They contend, and we agree, that the
application of the Rule in this case would actually impede the alienability of the land.
Applying the Rule in this case would result in the Grantor's heirs holding the
mineral interests in the real estate in perpetuity. One would presume that the number of
owners of that interest would increase over time, as heirs beget more heirs. Moreover, the
possessors of the subsurface mineral interest are not as readily ascertainable as the
occupiers of the surface interest. Thus, a person wanting to purchase the entirety of the
tracts would have to go way beyond locating and negotiating with the possessors of the
surface interest. Such prospective purchaser would have to locate all of the grantor's heirs
and negotiate with each one for the purchase of his or her respective interest in the
minerals in order to reunite the mineral interest with the surface interest. Other courts
have pointed out that applying the Rule to prevent the reuniting of split mineral interests
would actually "frustrate the policies behind the rule." Earle, 429 So. 2d at 995. The
same frustration is caused by voiding the deed provisions in this case that actually
provide for the reunification of the surface and mineral interest.
We do not stand alone in believing that a straightforward exempting of reserved
defeasible term mineral interests from the remorseless application of the Rule does more
good than harm. For instance, the Williams & Myers treatise opines:
"[D]efeasible term interests serve a useful social purpose, whether reserved or granted.
The term interest, as compared with a perpetual interest, tends to remove title
complications when the land is no longer productive of oil or gas. This simplification of
title promotes alienability of land, which is one purpose served by the Rule against
Perpetuities. We believe, therefore, that the courts should simply exempt interests
following granted or reserved defeasible term interests from the Rule, on the straight-
forward basis that they serve social and commercial convenience and do not offend the
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policy of the Rule Against Perpetuities." 2 Williams & Meyers, Oil and Gas Law, § 335
(2018).
Recently, the Texas Supreme Court relied in part on the Williams & Meyers
treatise's straightforward rationale when declining to apply the Rule to a similar interest
under Texas law, reasoning "restraint on alienability and promoting the productivity of
land is not at issue in the oil and gas context." Koopmann, 547 S.W.3d at 869. The
concurrence in Williams also supported this rationale. Williams, 668 P.2d at 638
(Thomas, J., concurring) ("Essentially Williams and Meyers . . . is advocating the
application to this situation of the maxim that when the reason upon which a rule is
justified is not present the rule should not be invoked."). While we adopt the approach
from Williams & Meyers, we note that other learned treatises likewise recognize that the
policy behind the Rule is not furthered in this context. See Anderson et al., Hemingway
Oil and Gas Law and Taxation, § 2.8(B) (4th ed. 2004) ("Rather than misapply common
law rules relating to future interests, a better judicial approach would be to treat the
interests resulting from conveyances of terminable [mineral] rights in oil and gas as sui
generis and fashion a rule of construction related to the realities of such transactions.");
1 Kuntz, Law of Oil & Gas, § 17.3 (1987) ("The application of the rule against
perpetuities to the interest following a retained term mineral interest is easily overlooked,
probably because the evil designed to be avoided by the rule is not readily apparent if it is
present at all.").
The Grantees' heirs and the Amici Curiae additionally argue that these transactions
are common in the oil and gas industry and application of the Rule will impact many
other property owners who received their interest from similarly worded deeds. We
recognize that the undisputed facts relied upon by the district court did not address this
contention. But as KIOGA points out, Kansas caselaw provides multiple examples of
these transactions, and we cannot ignore that reality. See Kneller v. Federal Land Bank of
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Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990) (deed grantor, Federal Land Bank,
excepted and reserved one-half defeasible term-plus-production mineral interest);
Classen, 228 Kan. at 427 (deed grantor, Federal Land Bank, excepted and reserved one-
fourth defeasible term-plus-production mineral interest); Friesen v. Federal Land Bank
of Wichita, 227 Kan. 522, 522-23, 608 P.2d 915 (1980) (deed grantor, Federal Land
Bank, excepted and reserved one-fourth defeasible term-plus-production mineral
interest), overruled on other grounds by Classen, 228 Kan. 426 (1980); Shepard, 189
Kan. at 126-27 (deed grantor, John Hancock Mutual Life Insurance, excepted and
reserved one-fourth defeasible term-plus-production mineral interest); Dewell, 191 Kan.
at 258 (deed grantor, Federal Land Bank, excepted and reserved one-half defeasible term-
plus-production mineral interest); see also Oxy USA, 309 Kan. at 1023, (grantor reserved
one-half defeasible term-plus-production mineral interest); Stratmann v. Stratmann, 204
Kan. 658, 663, 465 P.2d 938 (1970) ("A mineral interest may . . . be reserved for a period
so long as production from the land continues."), overruled on other grounds by Classen,
228 Kan. 426 (1980); Brooks v. Mull, 147 Kan. 740, 741, 78 P.2d 879 (1938) (grantor
reserved one-half defeasible term-plus-production mineral interest). The commonality of
these transactions is likewise apparent in rulings from our sister states and in treatises
discussing this issue. See, e.g., Williams, 668 P.2d at 630 ("Many cases simply assume
the validity of these interests without any discussion of the rule against perpetuities.");
1 Kuntz, § 17.3 ("In many reported cases, the presence of the [Rule] problem has gone
unnoticed, and the apparent assumption has been made that the interest is valid.").
Our precedent makes clear that the policies behind the common-law Rule include
promoting the alienability of property. The practice of retaining a defeasible term-plus-
production interest in minerals is ingrained in the oil and gas industry and actually
promotes the alienability of land. Applying the Rule here would be counterproductive to
the purpose behind the Rule and create chaos. Therefore, we hold that where a grantor
creates a defeasible term-plus-production mineral interest by exception, leaving a future
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interest in an ascertainable grantee, the future interest in minerals is not subject to the
Rule.
As previously indicated, in the district court, the Grantees' heirs alternatively pled
that if the district court found a Rule violation, the deeds should be reformed under
K.S.A. 59-3405(b), which applies retroactively. Because we hold that the interests at
issue are exempt from the Rule, we need not address the statutory reformation remedy.
We hold that the Rule does not apply in this circumstance; therefore, we affirm the
district court's grant of summary judgment to the Grantees' heirs and order quieting title
to the Tracts.
Affirmed.
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