October 19, 2010 – Edwin Smith, LLC, a New Mexico limited liability company, and Jerry T. Walmsley, trustee of the June Walmsley Bypass Trust under the Will of June H. Walmsley dated April 7, 1992 v. Kristi Clark, F. Kevin Kurtz, and F. Norman Kurtz and Edwin Smith, LLC, a New Mexico limited liability company, and Jerry T. Walmsley, trustee of the June Walmsley Bypass Trust under the Will of June H. Walmsley dated April 7, 1992 v. Synergy Operating, LLC, a New Mexico limited liability company, AnneMarie Keller, Charla Varner, Jodie Yates-Simon, Kimberly Brautigam, Robert E. Kouns, and Therolyn K. Williams, Nos. 28,248; 28,263

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	October 19, 2010
NOS. 28,248; 28,263
EDWIN SMITH, LLC, a New Mexico limited
liability company, and JERRY T. WALMSLEY,
trustee of the June Walmsley Bypass Trust under
the Will of June H. Walmsley dated April 7, 1992,
Plaintiffs-Appellees,
v.
KRISTI CLARK, F. KEVIN KURTZ, and
F. NORMAN KURTZ,
Defendants-Appellants,
and
EDWIN SMITH, LLC, a New Mexico limited
liability company, and JERRY T. WALMSLEY,
trustee of the June Walmsley Bypass Trust under
the Will of June H. Walmsley dated April 7, 1992,
Plaintiffs-Appellees,
v.
SYNERGY OPERATING, LLC, a New Mexico
limited liability company, ANNEMARIE KELLER,
CHARLA VARNER; JODIE YATES-SIMON;
KIMBERLY BRAUTIGAM; ROBERT E. KOUNS;

and THEROLYN K. WILLIAMS,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. Townsend, District Judge
Sutin, Thayer & Browne, P.C.
C. Shannon Bacon
Kerry Kiernan
Derek V. Larson
Albuquerque, NM
Montgomery & Andrews, PA
J. Scott Hall
Santa Fe, NM
for Appellees
Finch & Olson PA
Kyle M. Finch
Farmington, NM
Holland & Hart, LLP
Larry J. Montaño
Santa Fe, NM
for Appellant Synergy Operating, LLC
Dixon, Scholl & Bailey, P.A.
Gerald G. Dixon
Albuquerque, NM
for Appellants Kristi Clark, F. Kevin Kurtz, & F. Norman Kurtz

OPINION
CASTILLO, Judge.
{1} 	In this consolidated case, we review the law of joint tenancies in New Mexico
as it applies to property in a quiet title action. We also evaluate whether the district
court had authority to order proceeds suspended from two wells situated on the
property. 	We affirm the district court’s determination as to the quiet title issue,
dismiss the proceedings regarding suspension of proceeds for lack of subject matter
jurisdiction, and remand this matter for further proceedings consistent with this
opinion.
I. 	BACKGROUND
{2} 	The subject property is a 160-acre tract of land located in San Juan County,
New Mexico (the Property). 	We begin with a summary of the title history of the
Property and basic information related to the development of two gas wells on the
Property. Additional facts will be developed in the context of the issues discussed.
A. 	Title History
{3} 	The pertinent history of title to the Property stretches over a period of more than
a half century. The first material event occurred in 1951 when Margaret, Julia, May,
and Jennie Hasselman (collectively, the Hasselman Women) acquired by intestate
succession an undivided one-half interest in the surface and mineral rights of the

2
Property. On April 26, 1951, the Hasselman Women conveyed their entire interest in
the Property to May’s husband. Immediately thereafter, May’s husband conveyed the
Property back to the Hasselman Women as joint tenants. The language of the deed
from May’s husband to the Hasselman Women explicitly stated: “Not in tenancy in
common but in joint tenancy[.]”
{4} 	In June 1958, the Hasselman Women filed a quiet title action in the San Juan
County District Court. 	The judgment, entered in August 1958, quieted title to the
Property as follows: the Hasselman Women were decreed the owners of an undivided
one-half interest in the surface and mineral rights; Claude Smith was decreed the
owner of the other one-half interest in the surface rights as well as a 75/160 mineral
interest; George B. Robbins was decreed the owner of a 4/160 mineral interest; and
J.R. Robbins was decreed the owner of a 1/160 mineral interest. 	Appellee Edwin
Smith, LLC (Smith) is the successor in interest to the ownership interest of Claude
Smith.
{5} 	May died in November 1962. Julia died in November 1973. Margaret died in
May 1974. 	In September 1981, Jennie executed a warranty deed conveying an
undivided one-half interest in the property to herself and her daughter June as joint
tenants. In this deed, Jennie is described as the last “surviving joint tenant of” the
Hasselman Women. Appellee Jerry Walmsley (Walmsley) is the surviving spouse of

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June.
{6} 	Jennie died in July 1988. 	June died in October 1995. 	In her will, June
established the June H. Walmsley Bypass Trust (the Trust) under which Walmsley
was named administrator and sole trustee. June devised her interest in the Property
to the Trust. We recognize that Walmsley is acting in his capacity as trustee in this
appeal, but will continue to refer to him as Walmsley.
B. 	Synergy’s Development of Mineral Interests on the Property
{7} 	During and after October 2004, various heirs of May, Julia, and Margaret
assigned mineral rights on the Property to Appellant Synergy. Synergy also signed
a farm-out agreement with Joseph C. Robbins, an heir of J.R. Robbins, and a joint
operating agreement (JOA) with Walmsley authorizing Synergy to operate wells on
the Property.
{8} 	On May 24, 2005, Synergy filed an application with the Oil and Conservation
Division (the Division) of the New Mexico Energy, Minerals, and Natural Resources
Department to pool mineral interests on the Property to form a 320-acre compulsory-
pooled gas spacing unit and to drill a well, well 104. Walmsley and Smith opposed
this application, claiming that Synergy did not possess an interest in the Property.
{9} 	Despite Walmsley and Smith’s opposition, the Division granted Synergy’s
application. 	Walmsley and Smith appealed that decision to the New Mexico Oil

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Conservation Commission (the Commission), the supervising agency for the Division,
challenging Synergy’s right to drill on the basis that Synergy did not possess any
interest in the Property. Walmsley and Smith also filed a complaint to quiet title to
the property in the Eleventh Judicial District Court (the 2006 quiet title action).
{10} 	At the Commission hearing on well 104, Synergy claimed its right to drill well
104 derived from three sources: 	a twenty-five percent mineral interest it obtained
from the heirs of Julia and May; the farm-out agreement it held with Joseph C.
Robbins, an undisputed owner of a 3.125 percent mineral interest on the Property; and
the JOA with Walmsley. 	Walmsley and Smith refuted these contentions. 	They
claimed that the heirs of Julia and May owned no interest in the Property and that
Walmsley was the owner of the entire interest of the Hasselman Women. Therefore,
according to Walmsley, Synergy could not derive an interest in the Property from the
heirs of Julia and May. Walmsley and Smith also submitted an affidavit and unsworn
statement from Joseph C. Robbins that they claimed showed that he had rescinded his
farm-out agreement. It is unclear whether Walmsley and Smith challenged Synergy’s
claim under the JOA. 	In addition to asking the Commission to find that Synergy
possessed no interest in the Property, Walmsley and Smith also asked the Commission
to suspend all proceeds from well 104.
{11} 	After the Commission hearing, but before the Commission rendered a decision

5
on Synergy’s right to drill well 104, Synergy filed another application with the
Division to pool mineral interests on the Property and drill a second well, well 105.
Synergy again based its right to drill on the twenty-five percent mineral interest it
allegedly obtained from the heirs of Julia and May, the farm-out agreement, and the
JOA. 	Smith and Walmsley again objected to the application on the ground that
Synergy did not possess any interest in the Property.
{12} 	In March 2006, the Commission entered an order regarding well 104. 	The
Commission first observed that it lacked jurisdiction to make any determination
regarding title to the Property. 	The Commission then found that there was no
admissible evidence submitted to support Walmsley and Smith’s claim that Joseph C.
Robbins rescinded the farm-out agreement. Accordingly, the Commission concluded
that Synergy was entitled to drill well 104 pursuant to the farm-out agreement and
pursuant to the JOA. 	Because Synergy possessed the right to drill well 104, the
Commission concluded that pooling all uncommited interests on the Property was
appropriate to avoid the drilling of unnecessary wells, to protect correlative rights, to
prevent waste, and to achieve an efficient distribution of the natural resources
underlying the Property. The Commission also authorized Synergy to recoup costs
associated with the drilling, operating, and supervising of well 104 from the proceeds
of that well. The Commission did not grant Walmsley and Smith’s request to suspend

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proceeds.
{13} 	Following the entry of the March 2006 order, Walmsley filed a motion to
suspend proceeds from well 104 in district court under the docket number that was
generated from Walmsley and Smith’s complaint to quiet title. Smith did not join the
motion to suspend proceeds filed in district court. In his motion, Walmsley requested
that the district court place 100 percent of the proceeds attributable to the disputed
interest in well 104 into a suspense account pending the resolution of the 2006 quiet
title action.
{14} 	In September 2006, the Division granted Synergy’s request to pool mineral
interests and drill well 105. The Division based its decision on the fact that Synergy
had a farm-out agreement with Joseph C. Robbins, an undisputed owner of mineral
rights on the Property. By virtue of that interest, the Division concluded that Synergy
had the right to drill. Accordingly, the Division authorized Synergy to pool mineral
interests. The Division further authorized Synergy to recoup costs associated with
drilling, operating, and supervising well 105 from proceeds derived from the well. The
Division rejected the requests of Walmsley and Smith to suspend proceeds from well
105 until the quiet title action was resolved. According to the Division, suspending
proceeds from well 105 would preclude Synergy from recouping its expenses. After
this order was entered, Walmsley amended the motion to suspend proceeds filed in

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district court to include 100 percent of the proceeds attributable to the disputed
interest in well 105.
{15} 	In February 2007, the district court granted the amended motion to suspend
proceeds from wells 104 and 105 and later denied Synergy’s motion to reconsider that
order. The district court ordered that all of the proceeds derived from wells 104 and
105 be placed in an interest bearing account until a final allocation of the interests in
the Property was determined. Pursuant to a stipulation from the parties, the order was
later amended to apply only to those proceeds derived from the disputed interest.
{16} 	On November 30, 2007, the district court entered an order resolving the quiet
title action. The following is a summary of the district court’s conclusions. Jennie,
as the last surviving member of the Hasselman Women, acquired the one-half
undivided interest in the Property that had originally been held by the Hasselman
Women as joint tenants. That interest, upon Jennie’s death, vested in June. Upon
June’s death, her interest was devised to the bypass trust established in her will. Title
to the disputed interest was quieted in favor of the Trust.
II. 	DISCUSSION
{17} 	On appeal, Synergy challenges the district court’s order regarding the title to
the Property as well as the order suspending proceeds from both wells. 	We will
address the title questions first and then turn to the issue of suspension of proceeds.

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A. 	The Quiet Title Action
{18} 	The district court quieted title in favor of the Trust. Synergy asserts two points
of error. 	It relies on the conveyance that created the joint tenancy interest in the
Hasselman Women and argues that a joint tenancy among the sisters never came into
existence because May failed to sign that deed. Alternatively, Synergy contends that
even if a joint tenancy were created, the Hasselman Women treated the joint tenancy
as if it were a tenancy in common and, thus, the joint tenancy was severed. We begin
with the standard of review and follow with a discussion of the law of joint tenancies.
1. 	Standard of Review
{19} 	The district court resolved the 2006 quiet title action on the parties’ cross-
motions for summary judgment. “Summary judgment is appropriate where there are
no genuine issues of material fact and the movant is entitled to judgment as a matter
of law.” Weise v. Washington Tru Solutions, L.L.C., 2008-NMCA-121, ¶ 2, 144 N.M.
867, 192 P.3d 1244 (internal quotation marks and citation omitted). 	“[W]here the
parties agree to have the trial court decide a case on cross-motions for summary
judgment and where neither party claims that disputed facts exist, this Court will
review the case as presented by the parties and decide it one way or the other.”
Farmington Police Officers Ass’n Commc’n Workers of Am. Local 7911 v. City of
Farmington, 2006-NMCA-077, ¶ 33, 139 N.M. 750, 137 P.3d 1204 (Pickard, J.,

9
specially concurring in part and dissenting in part). 	Our review of the parties’
arguments on appeal regarding the 2006 quiet title action reveals that the facts are not
disputed. 	Rather, the parties’ disagreement centers on the significance of the
undisputed facts as a matter of law—in this case, the law of joint tenancies.
2. 	The Law of Joint Tenancies
a. 	Historical overview
{20} 	A joint tenancy is a concurrent estate that dates back to the thirteenth century
under the early common law. 	R. H. Helmholz, Realism and Formalism in the
Severance of Joint Tenancies, 77 Neb. L. Rev. 1, 4 (1998). “As the preferred form of
common ownership in earlier English law, the joint tenancy’s existence was presumed
over a tenancy in common in cases where there was doubt about which had been
created.” Id. “[T]he chief incident of a joint tenancy is the right of survivorship[.]”
Swink v. Fingado, 115 N.M. 275, 281, 850 P.2d 978, 984 (1993). Under survivorship,
“[t]he joint tenant who survives the other cotenants takes the entire estate; the estates
of deceased joint tenants have no interest.” 	7 Richard R. Powell, Powell on Real
Property § 51.03[3] (Michael Allan Wolf ed. 2010).
{21} 	The traditional test for the creation and continuation of a joint tenancy depended
upon the presence of the four unities: 	time, title, interest, and possession. 	Id.
Describing the four unities, Blackstone wrote in his commentaries that

10
[t]he properties of a joint estate are derived from its unity, which is
fourfold; the unity of interest, the unity of title, the unity of time, and the
unity of possession; or, in other words, joint tenants have one and the
same interest, accruing by one and the same conveyance, commencing
at one and the same time, and held by one and the same undivided
possession.
2 William Blackstone, 2 Commentaries *180 (1979) (emphasis omitted).
{22} 	Soon after achieving independence from Great Britain, Americans abandoned
the English legal preference for joint tenancy as the preferred form of concurrent
ownership and adopted a preference for tenancy in common. 	David A. Thomas,
Anglo-American Land Law: Diverging Developments from a Shared History - Part
III: 	British & American Real Property Law & Practice - A Contemporary
Comparison, 34 Real Prop. Prob. & Tr. J. 443, 467 (1999). Joint tenancies, however,
remain in frequent use. Helmholz, supra, at 4.
{23} 	In 1852, New Mexico enacted the territory’s first laws regulating conveyances
and allowing joint tenancy. See Fletcher’s Estate v. Jackson, 94 N.M. 572, 576, 613
P.2d 714, 718 (Ct. App. 1980) (discussing the 1852 version of the joint tenancy law).
The language from the 1852 law is now complied as NMSA 1978, Section 47-1-15
(1915) (“All interest in any real estate, either granted or bequeathed to two or more
persons other than executors or trustees, shall be held in common, unless it be clearly
expressed in said grant or bequest that it shall be held by both parties.”). Relying on
Section 47-1-15, our Supreme Court stated in Brown v. Jackson, 35 N.M. 604, 605,

11
4 P.2d 1081, 1081 (1931) that “[w]hile it is true that joint tenancy is no longer
favored, as at common law, yet it still exists when by grant it is clearly expressed that
the estate is to be a joint tenancy.”
{24} 	In 1971, NMSA 1978, Section 47-1-36 (1971) was enacted. 	This statute
defined the joint tenancy as it relates to real property and established the prerequisites
for creating a joint tenancy in real property. Swink, 115 N.M. at 286, 850 P.2d at 989.
Section 47-1-36 provides the following:
A joint tenancy in real property is one owned by two or more
persons, each owning the whole and an equal undivided share, by a title
created by a single devise or conveyance, when expressly declared in the
will or conveyance to be a joint tenancy, or by conveyance from a sole
owner to himself and others, or from tenants in common to themselves,
or to themselves and others, or from husband and wife when holding as
community property or otherwise to themselves or to themselves and
others, when expressly declared in the conveyance to be a joint tenancy,
or when granted or devised to executors or trustees.
{25} 	Our Supreme Court has previously acknowledged that Section 47-1-36
embraces the classical doctrine of the four unities. See Swink, 115 N.M. at 286, 850
P.2d at 989.
b. 	Creation of a joint tenancy
{26} 	As we have explained, the doctrine of the four unities both describes the nature
of a joint tenancy and was at common law the touchstone for determining whether a
transfer of real property resulted in a joint tenancy. 4 David A. Thomas, Thompson

12
on Real Property § 31.06(b) at 15 (2d ed. 2004). 	The case law predating the
enactment of Section 47-1-36 shows that this common law tradition prevailed in New
Mexico. See In re Trimble’s Estate, 57 N.M. 51, 54, 253 P.2d 805, 807 (1953) (“[a]
joint tenancy arises where two or more persons have any subject of property jointly
in which there is a unity of interest, unity of title, unity of time, and unity of
possession” (internal quotation marks and citation omitted)), superseded by statute as
stated in Fletcher’s Estate, 94 N.M. at 576, 613 P.2d at 718. Because Section 47-1-36
embraces this classical doctrine, the test in New Mexico to determine whether a joint
tenancy has been established remains whether the requirements embodied by the
doctrine of the four unities have been satisfied. See Swink, 115 N.M. at 286, 850 P.2d
at 989. We have previously described what this entails.
The unities of time and title require that the joint tenants’ interests accrue
at the same time by the same conveyance. By unity of interest is meant
that the joint tenants’ shares are all equal and the duration and quality
(legal or equitable) of their estates are the same. 	Unity of possession
means that each joint tenant is in possession of the whole estate, and that
each is also entitled to an equal undivided share of the whole.
Id. at 286 n.15, 850 P.2d at 989 n.15 (internal quotation marks and citation omitted).
{27} 	In addition to satisfying the requirements embodied by the four unities, our
statutes require that the document purporting to create the joint tenancy include
express language that the real property is to be held jointly. 	See § 47-1-15 (“All
interest in any real estate, either granted or bequeathed to two or more persons other

13
than executors or trustees, shall be held in common, unless it be clearly expressed in
said grant or bequest that it shall be held by both parties.”). 	This statutory
requirement is reflective of the modern preference in favor of tenancies in common
and, conversely, the now well-entrenched view that joint tenancies are no longer
preferred. 	See Brown, 35 N.M. at 605, 4 P.2d at 1081 (“While it is true that joint
tenancy is no longer favored, as at common law, yet it still exists when by grant it is
clearly expressed that the estate is to be a joint tenancy.”). A conveyance to two or
more grantees that includes the language “as joint tenants” is sufficient to overcome
the modern presumption against joint tenancies and satisfies the express language
requirement set out in Section 47-1-15. 	See NMSA 1978, § 47-1-35 (1947) (“In a
conveyance or mortgage of real estate, the designation of two or more grantees ‘as
joint tenants’ shall be construed to mean that the conveyance is to the grantees as joint
tenants, and not as tenants in common, and to the survivor of them and the heirs and
assigns of the survivor.”).
c. 	Severing a joint tenancy
{28} 	In Romero v. Melendez, 83 N.M. 776, 778, 498 P.2d 305, 307 (1972), our
Supreme Court discussed severance of joint tenancies. The Court first established that
“[a] joint tenancy will be severed by the destruction of any one or more of its
necessary units.” Id. (internal quotations marks and citation omitted). Historically,

14
this was the test to determine whether a joint tenancy had been severed. See Mamalis
v. Bornovas, 297 A.2d 660, 661 (N.H. 1972) (“In determining whether an act of a joint
tenant is sufficient to terminate or ‘sever’ a joint tenancy, the courts have historically
resolved the question upon an analysis of whether the act destroyed one of the essential
four unities of time, title, interest or possession.”); see also Blackstone, supra, at *185.
Thus, it is settled that a conveyance by a joint tenant of his interest to a third party
“necessarily destroys the unity of title,” and with it, severs the joint tenancy. 2 Tiffany,
The Law of Real Property § 425, at 209 (3d ed. Jones 1939).
{29} 	The second way in which a joint tenancy may be severed, as our Supreme Court
explained in Romero, is “by a mutual agreement between the parties . . ., or by any
conduct or course of dealing sufficient to indicate that all parties have mutually treated
their interests as belonging to them in common.” 83 N.M. at 778, 498 P.2d at 307
(alteration in original). 	Synergy claims that, by this language, our Supreme Court
adopted a modern development in the law of severance in which courts look not to
whether one of the unities has been destroyed to determine whether a joint tenancy has
been severed but only to whether the parties intended to sever the joint tenancy. See
Helmholz, supra at 18-19. This argument implicates significant policy considerations
that Synergy has not addressed. See 4 Thomas, supra, § 31.09, at 73-74 (discussing
the future of the law of joint tenancies and recognizing that increased emphasis on the

15
intention of the parties in the creation and severance of joint tenancies has contributed
to the erosion in the distinctions between tenancies in common and joint tenancies).
Notwithstanding this concern, we are unpersuaded that the modern intent-based theory
of severance is compatible with the current statutory framework governing joint
tenancies in New Mexico.
{30} 	As previously discussed, joint tenancies are defined by statute in New Mexico,
and Section 47-1-36 embraces the four unities doctrine. 	The modern intent-based
theory is premised on the abandonment of the four unities doctrine, see Helmholz,
supra, at 1-2, and this is reflected in decisions from jurisdictions that have adopted the
modern theory. 	See, e.g., Taylor v. Canterbury, 92 P.3d 961, 967 (Colo. 2004) (en
banc) (observing that the four unities have been abolished by statute in Colorado and,
after recognizing the development of the intent based theory, holding that whether a
joint tenancy has been created or severed is merely a question of the intent of the
parties); In re Estate of Bates, 492 N.W.2d 704, 706-07 (Iowa Ct. App. 1992)
(observing that the four unities common law rule required to create and continue a
joint tenancy is not applicable in Iowa and finding a severance of a joint tenancy based
solely on the intent of the parties who agreed to sell certain property but never actually
sold it); Mamalis, 297 A.2d at 662 (abandoning the requirement that severance of a
joint tenancy requires destruction of one of the unities and adopting the intent based

16
approach because, in New Hampshire, all that is required to create a joint tenancy is
the manifestation of intent to do so and, therefore, this is all that should be required
to sever one).
{31} 	When, in Romero, our Supreme Court recognized that a joint tenancy may be
severed by mutual agreement or by any conduct or course of dealing sufficient to
indicate that all parties have mutually treated their interests as belonging to them in
common, the Court did not, as Synergy argues, adopt the modern intent-based theory
of severance. Rather, our Supreme Court merely recognized the theory of severance
by implication. 	That a joint tenancy may be severed by implication is widely
recognized. 	See In re Estelle’s Estate, 593 P.2d 663, 665 (Ariz. 1979) (in banc);
Brodzinsky v. Pulek, 182 A.2d 149, 154 (N.J. Super. Ct. App. Div. 1962); Young v.
McIntyre, 672 S.E.2d 196, 203 (W. Va. 2008). Varying language has been used to
express the theory. See Duncan v. Suhy, 37 N.E.2d 826, 829 (Ill. 1941) (stating that
“an agreement between joint tenants to hold as tenants in common will sever an
existing joint tenancy and such agreement may be inferred from the manner in which
the parties deal with the property”). The language employed by our Supreme Court
in Romero is but one example and appears in Corpus Juris, in exactly the same form,
as early as 1924. 33 C.J. Joint Tenancy § 11, at 909 (1924). Whether a severance by
implication has occurred turns on two questions: (1) whether there was an express

17
agreement between all of the joint tenants; and (2) whether that agreement was
inconsistent with one of the unities or with the right of survivorship. 	See Harold J.
Romig, Jr. & John M. Shelton, Comment, Severance of a Joint Tenancy in California,
8 Hastings L.J. 290, 294 (1957). 	Romero itself is a useful illustration of the
application of the doctrine of severance by implication.
{32} 	As a preliminary matter, we observe that Romero does not deal with the
conveyance of real property which is the issue before us. However, the Romero court
did discuss severance and held that a joint tenancy had been severed in that case and
denied a surviving spouse’s claim to right of survivorship over a mutual fund and
checking account. 83 N.M. at 778-79, 498 P.2d at 307-08. The Court observed that
a divorce decree had been entered before the death of the deceased spouse and
concluded that the decree severed the joint tenancy, rendering the accounts the sole
and separate property of the estate of the deceased. 	Id. 	The fact that the parties
divorced was not, in and of itself, the basis for the holding. 	There is little
disagreement over the fact that “a divorce decree alone does not effect a severance of
a joint tenancy.” 48A C.J.S. Joint Tenancy § 17, at 347 (1981); see 4 Thomas, supra,
§ 31.08(c), at 66. Rather, our Supreme Court reasoned that the divorce decree was
inconsistent with and eliminated the unity of possession that severed the joint tenancy.
Romero, 83 NM at 779, 498 P.2d at 308. The decree was an express agreement that

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destroyed one of the four unities, a severance by implication. Having set forth the law
governing the creation and severance of joint tenancies, we turn to Synergy’s
arguments in the present matter.
3. 	Synergy’s Arguments Regarding Joint Tenancy
{33} 	Synergy’s first claim deals with the 1951 deed to the Hasselman Women.
Relying on principles of community property law, Synergy contends that the
conveyance from May’s husband to the Hasselman Women failed to establish a joint
tenancy because May did not sign the deed in which her husband conveyed the
Property to the Hasselman Women as joint tenants. 	According to Synergy, this
rendered that conveyance void because the conveyance of community property by one
spouse acting alone is void.
{34} 	The district court responded to this contention by observing that May conveyed
her interest, as had all of her sisters, to her husband before he conveyed their interests
back to them as joint tenants. 	Thus, according to the district court, it was not
necessary for May to have signed the conveyance creating the joint tenancy because
the Property had momentarily become May’s husband’s separate property. Synergy
claims this reasoning is flawed because it assumes the other Hasselman Women were
deeding their interest to May’s husband as his sole and separate property and further
that this reasoning assumes the Hasselman Women intended to create a joint tenancy

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through this transaction. We find little merit to these claims.
{35} 	Historically, there was a question as to whether or not an individual could deed
title to real property in joint tenancy to himself and others.
The old common law rule that a grantor could not create a joint
tenancy by conveying to himself and another (or others), or by
conveying an undivided interest to another, generally has been evaded
by conveying the entire estate to a third party “straw man” who, by
prearrangement, then conveys the estate back to the entire group of
intended joint tenants (including the grantor).
Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of
Property, § 5.3, at 198 (2d ed. 1993). It appears that this is what occurred in this case;
May’s husband was the straw man. The Hasselman Women deeded the Property to
him, and he re-deeded the Property to them as joint tenants. The Hasselman Women
accrued the same interest in the Property at the same time by the same conveyance and
possessed an equal undivided share in the Property and the conveyance clearly
indicated that the Hasselman Women held the property not as tenants in common but
as joint tenants. Where a dispute arises as to whether property was initially acquired
in joint tenancy, the status of the property may be established by a preponderance of
the evidence. Fletcher’s Estate, 94 N.M. at 578, 613 P.2d at 720 (citing NMSA 1978,
§ 47-1-16 (1955)). As evidenced by the straw man transaction and the words on the
1951 deed, a joint tenancy was established.
{36} 	Further, Synergy relies on “basic principles of community property law” but

20
does not cite specific statutes or cases. Where a party cites no authority to support an
argument, we may assume no such authority exists. In re Adoption of Doe, 100 N.M.
764, 765, 676 P.2d 1329, 1330 (1984). Although we are not certain, it appears that
these basic principles may be part of New Mexico’s Community Property Act. That
legislation was not enacted until 1973, over twenty years after the 1951 conveyances
were made. Synergy’s arguments are unavailing.
{37} 	Synergy’s second argument is based on severance. Synergy contends that even
if a joint tenancy were created, the Hasselman Women treated the joint tenancy as if
it were a tenancy in common and, thus, the joint tenancy was severed.
{38} 	Synergy points to five different facts as proof of severance in the present
matter: (1) the pleadings filed to initiate the 1958 quiet title action and language in
the judgment stemming from that action wherein the Hasselman Women are described
as the “heirs at law of Herman Hasselman” and “the owners in fee simple;” (2) that
the surviving Hasselman Women and May’s heirs executed a power of attorney
permitting Jennie’s husband to develop mineral interests on the Property; (3) that the
surviving Hasselman Women designated Jennie as agent to receive payments from a
gas company operating on the property and that Jennie, acting as agent for the
surviving Hasselman Women, entered into leases to further develop mineral interests
on the property; (4) the language in a title opinion rendered by Pan American

21
Petroleum in 1965 indicating that the heirs of the deceased Hasselman Women held
interests in the Property; and (5) that heirs of May, Julia, and Margaret received
royalties. The evidence Synergy cites as proof the Hasselman Women severed the
joint tenancy is insufficient as a matter of law to prove a severance. 	None of the
alleged acts destroyed one of the four unities that is necessary under either mode of
severance recognized in New Mexico.
4. 	Conclusion as to Joint Tenancy
{39} 	The undisputed facts in this matter prove that the Hasselman Women
established a joint tenancy. 	The joint tenancy was not severed. 	None of the
Hasselman Women conveyed their interests in the Property during their lives. Nor did
the Hasselman Women sever the joint tenancy by an express agreement inconsistent
with one of the four unities or the right of survivorship. Accordingly, upon June’s
death, the property passed to the Trust.
B. 	Suspension of Proceeds
{40} 	As explained in the background section of this opinion, Walmsley and Smith’s
original requests to suspend proceeds from both wells were made in conjunction with
their objections to Synergy’s applications to pool mineral interests on the Property.
After the requests were effectively denied by the Division and Commission,
Walmsley alone filed a motion in the quiet title action to suspend proceeds as to well

22
104. Later, he filed an amended motion requesting that proceeds be suspended as to
both wells. The arguments made in the administrative proceedings were similar to
those made to the district court—essentially that the suspension of proceeds would
eliminate unnecessary litigation regarding payment of proceeds pending a final
determination of the title dispute. The district court ordered the proceeds suspended
and to be placed in an interest-bearing account until a final allocation could take place.
Synergy appeals this order.
{41} 	Although Synergy does not actually argue the issue of subject matter
jurisdiction on appeal, we posed this question to the parties during oral argument.
Jurisdiction is a controlling consideration to be resolved as a preliminary matter, and
an appellate court may raise the question of jurisdiction on its own. See State v. Doe,
91 N.M. 356, 357, 573 P.2d 1211, 1212 (Ct. App. 1977). Moreover, “it is incumbent
upon the appellate court to raise jurisdiction questions sua sponte when the Court
notices them.” Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171
P.3d 300. 	The question of subject matter jurisdiction is a question of law that we
review de novo. Ottino v. Ottino, 2001-NMCA-012, ¶ 6, 130 N.M. 168, 21 P.3d 37.
{42} 	To address the question of jurisdiction, we first look to certain provisions of
the Oil and Gas Act (the O&G Act), NMSA 1978, §§ 70-2-1 to -38 (1935, as amended
through 2010). The O&G Act provides the Division with “jurisdiction and authority

23
over all matters relating to the conservation of oil and gas” and “jurisdiction, authority
and control of and over all persons, matters or things necessary or proper to enforce
effectively the provisions of th[e O&G A]ct or any other law of this state relating to
the conservation of oil or gas.” Section 70-2-6(A). The O&G Act further empowers
the Division “to make and enforce rules, regulations and orders, and to do whatever
may be reasonably necessary to carry out the purpose of th[e] [O&G Act], whether or
not indicated or specified in any section [of the O&G Act].” Section 70-2-11(A). The
O&G Act provides the Commission with concurrent jurisdiction to carry out these
responsibilities. Sections 70-2-6(B), -11(B).
{43} 	The Division and Commission are statutorily authorized to set forth the
procedural rules governing the proceedings before them. Section 70-2-7. Pursuant
to those rules, adjudicatory hearings must be brought in the first instance before the
Division. 19.15.4.8(A) NMAC (12/1/08). The Division’s order may be appealed to
the Commission for a de novo hearing. 	Section 70-2-13; 19.15.4.23 NMAC
(12/1/08). A party dissatisfied with the Commission’s order may request a rehearing
before the Commission. 	Section 70-2-25(A); 19.15.4.25 NMAC (12/1/08). 	The
Commission’s decision at the rehearing proceeding may be appealed to the district
court. Section 70-2-25(B).
{44} 	Walmsley, dissatisfied with the denial of the request to suspend proceeds from

24
well 104 by the Division and well 105 by the Commission, did not follow the
appellate process set forth by statute. Instead, he filed a motion and amended motion
to suspend proceeds from both wells in the district court quiet title actions. This
procedural tactic, effectively an end-run around the appellate procedures specified in
the O&G Act, raises significant concerns that our Supreme Court discussed at length
in Smith, 2007-NMSC-055, ¶ 21.
{45} 	In Smith, there were two sets of plaintiffs—the Smiths and the Stillmans—who
wanted to drill wells on property they owned located within the boundaries of a
municipality. Id. ¶ 3. Separately, they obtained well permits from the Office of the
State Engineer after which the municipality notified them that they were also required
to obtain municipal permits to drill. Id. The Stillmans did not apply for a city permit
but the Smiths did. Id. ¶ 4. After the city denied the Smiths’ applications for a permit,
the Smiths followed the administrative appeals process set forth in the letter of denial.
Id. Ultimately, the city council upheld the decision to deny the permit. 	Id. 	The
Smiths and the Stillmans then filed an action for declaratory relief in district court. Id.
¶ 5. 	The district court granted summary judgment in favor of them, and the city
appealed.
{46} 	Our Supreme Court first looked to the question of jurisdiction. Id. ¶¶ 8-10. As
to the Stillmans, it concluded that the district court did have jurisdiction to consider

25
the declaratory judgment action. Id. ¶ 25 (“By not invoking the administrative review
process and the corresponding judicial review procedures embodied in Rule 1-075
[NMRA], the Stillmans were free to initiate their claim for declaratory relief at the
time of their own choosing.”). As to the Smiths, however, our Supreme Court held
that the district court lacked jurisdiction to rule on the claim for declaratory relief. Id.
¶ 24. The Court explained that, because the Smiths chose to initiate the administrative
appeals process, they were, therefore, required to abide by the procedural mechanisms
that governed that process. Id. ¶ 23. “To hold otherwise,” the Court stated, “would
invite chaos and preclude certainty in the finality of administrative decisions that
might otherwise be subject to multiple avenues of judicial review at unpredictable
times.” Id. The Court explained its reasoning:
We perceive no sound judicial policy for allowing a party
aggrieved by an administrative decision to forego an available avenue of
judicial review only to allow that same party to initiate judicial review
in another form at some future date that no one can predict or rely upon
with any certainty. 	Indeed, the efficient administration of justice
requires just the opposite.
Id. ¶ 24.
{47} 	Here, there is no question about the propriety of the quiet title suit—it can
properly be brought to decide the title issues related to the property upon which the
wells are situated. 	NMSA 1978, § 42-6-1 (1951). 	Consideration of the issue of
suspension of proceeds from the mineral interests on the property is another matter.

26
Suspension of proceeds was first raised as an issue before the Division and the
Commission. Neither party challenges the Division and the Commission’s authority
to hear or decide a request for suspension of proceeds. 	Once the authority of the
Division and the Commission as to suspension of proceeds from the wells was
invoked, Walmsley was obligated to comply with the comprehensive appellate
procedures provided under the O&G Act that govern the proceedings before those
agencies. Because Walmsley failed to follow the applicable statutory procedures, we
conclude that the district court lacked subject matter jurisdiction to rule on the motion
and amended motion to suspend proceeds. See Smith, 2007-NMSC-055, ¶ 24; In re
Application of Angel Fire Corp., 96 N.M. 651, 652, 634 P.2d 202, 203 (1981)
(observing that, where a statute establishes an administrative procedure for taking a
case or controversy out of the administrative framework into the judicial system for
review, jurisdiction of the matter in dispute does not lie in the district court until the
statutorily required administrative procedure has been complied with).
III. 	CONCLUSION
{48} 	We hold that the district court did not err in concluding that the Property passed
to the Trust. The district court’s order in the quiet title action is affirmed. Because
the district court lacked subject matter jurisdiction regarding the suspension of
proceeds, the motion and amended motion filed in the quiet title action are hereby

27
dismissed, and all orders entered based on the motions are hereby vacated. 	This
matter is remanded for proceedings consistent with this opinion.
{49} 	IT IS SO ORDERED.
________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:
__________________________________
CYNTHIA A. FRY, Chief Judge
__________________________________
ROBERT E. ROBLES, Judge