Volume 994 — North Western Reporter, Second Series

The plaintiff bears the burden of proof on its quiet title claim. Where the plaintiff owns a top lease and the defendant owns a bottom lease covering the same oil and gas leasehold interest, the plaintiff bears the burden to prove the bottom lease terminated by its own terms. If the bottom lease contains a cessation of production clause, the plaintiff must prove production ceased for the specified period. Oil and gas leases are interpreted in the same manner as other contracts. When left undefined, "production" in a savings clause means production in paying quantities, which generally requires a court to consider whether the well yielded a profit over operating costs over a reasonable period of time. As a matter of law, a de minimis amount of production does not equate to production in paying quantities. Where profitability of the well is not at issue so as to affect when production in paying quantities ceased, cessation commences on the first day of no production and ends on the last day of no production. If a total cessation of production exceeds the time period established in the lease's cessation of production clause, the lease terminates unless it provides conditions preventing termination. In this case, a total cessation of production, including de minimis amounts, triggered the cessation of production clause requiring the well operator to timely commence reworking operations. Reworking operations must be intimately connected with resolving the physical difficulty that caused the well to cease production, and the well operator must exercise due diligence and make a bona fide effort to restore production as soon as possible. Minimal preparatory steps, such as diagnosing the failure and ordering parts, do not constitute commencement of reworking operations. An express force majeure clause in a contract must be accompanied by proof that the failure to perform was proximately caused by a contingency and that, in spite of skill, diligence, and good faith on the promisor's part, performance remains impossible or unreasonably expensive. The party relying on a force majeure clause to excuse performance bears the burden of proving that the event was beyond its control and without its fault or negligence. The party relying on the force majeure clause must show its performance was actually hindered or prevented by the force majeure event, not just potentially or hypothetically hindered or prevented.

Absent a change in circumstances, the juvenile court does not err in adopting a prior visitation schedule as the current visitation schedule.

To be appealable under N.D.C.C. § 28-27-02(1), an order must determine the action and prevent a judgment from which an appeal might be taken. An order is not appealable under § 28-27-02(5) unless, in effect, it finally determines some substantive legal right of appellant or is dispositive of a substantive issue. Final order under section 14-14.1-34, N.D.C.C. [UCCJEA §314 (1997)], means an order that finally determines some substantive legal right of a party or is dispositive of a substantive issue.

A sidebar addressing routine evidentiary or administrative matters during trial, even without an adequate record, is not a closure implicating the public trial right. The plain language of the statute criminalizing murder provides alternative means of committing the offense. A jury is not required to unanimously agree upon which of the alternative means of committing murder it believes the State proved beyond a reasonable doubt. For purposes of double jeopardy, criminal offenses are different if each offense contains an element not contained in the other offense. Irrelevant evidence is not admissible. Rights of a deceased victim may be exercised by family members and others as provided in N.D. Const. art. I, § 25(4). Section 25 does not provide for the court's enforcement of a crime victim's rights on behalf of a deceased victim absent the assertion by an individual listed under § 25(4). An erroneous evidentiary ruling is disregarded as harmless error under N.D.R.Crim.P. 52(a) if it does not affect the defendant's substantial rights.

A witness must demonstrate some basis for forming an intelligent judgment as to the value of land before offering lay opinion testimony about the value of the land. A property owner may present opinion testimony about the value of his property even when the opinion relies upon information from another. Out-of-court statements are non-hearsay if they are offered for their independent legal significance where the utterance of the words is, in itself, an operative fact which gives rise to legal consequences.