(dissenting):
I am unable to agree with the position taken by the trial court and affirmed by our main opinion that:
The trial court correctly determined that Miller & Viele had not been in actual possession any time during the four years following the tax deed. In fact, it is abundantly clear from the facts that it has never been in actual possession. [Emphasis in original.]
The quoted statement appears to be based upon the proposition that the defendant had not been physically sitting in or upon its one-half mineral interest in the property, that is, the oil deep below the surface. The controversy involved here does not fit into the usual pattern of tax title cases, wherein Section 78-12-5.1 requires the owner to be in actual possession within four years in order to assert his claim of ownership.
In the instant situation, the defendant asserts no claim to the surface rights of the land involved; and therefore could not be in actual occupancy of the surface of the property as contemplated in the usual sense. But the important fact is that by the pooling arrangement with Chevron Oil Company for drilling for oil, the defendant did exercise as much dominion, control and possession of the property in controversy, i. e., the mineral rights, as possibly could be done. It seems to me that in such circumstances where defendant was doing everything the law would permit in regard to occupying its property, it is unfair and unjust to hold that its interest therein is adversely affected because it did not do something which was impossible in regard to being in actual possession of the property.
Consequent to what I have said, for whatever interest it had to protect in the claimed mineral rights, the defendant should be deemed to have been in actual possession thereof.