Briefing – Ohio Dormant Mineral Act

February 1, 2012

By Ilya Batikov and Kit Houston

This Memorandum provides only general information and should not be relied upon as legal advice.  For more information, contact your Hameline & Eccleston, LLP attorney.

The following memorandum addresses the Ohio Dormant Mineral Act, R.C. 5301.56 as passed in 1989 and amended in 2006.  Relevant statutes, cases, and administrative procedures are cited in an attempt to provide the reader with an understanding of the issues, ambiguities, and risks underlying the application of the Act to the ownership of severed mineral interests in Ohio.

 SUMMARY

Ohio’s Dormant Mineral Act is codified in R.C. 5301.56. Originally enacted in 1989, the statute was substantially amended in 2006; however, at least one Ohio court has applied the 1989 version to the period before the amendment, due to its self-executing nature.   The two statutes are nearly identical in substance; however, they vary significantly in procedure.   Each version allows a surface owner to reunite a severed mineral interest to the surface estate after a statutorily set period (twenty years) and absent the occurrence of several specifically delineated savings events (“Savings Event”).  In addition, both statutes except interests held by a government entity and all interests in coal.

An Ohio court has interpreted the 1989 Act as creating a look-back period from the date of enactment, plus a three-year grace period. However, no court has applied the statute where a Savings Event occurred in the original look-back period, but twenty more years elapse with no Savings Event.  A plain reading of the statute and legislative history suggests that a Savings Event must occur, first, within twenty years of enactment and then successively for each twenty-year period thereafter.[1]

The 2006 amendment changed the Act’s self-executing form by requiring the surface owner to give notice to the mineral owner that the interest is abandoned.  After notice, the mineral owner has sixty days to file a claim to preserve a mineral interest or an affidavit showing a Savings Event occurred in the twenty years preceding the issuance of the notice.  If the mineral owner fails to act, the surface owner can file an affidavit of abandonment with the county recorder, causing the recorder to note title has vested in the surface estate.

While the amendment clarified that the twenty year period was calculated as immediately preceding the notice date, it offers a new ambiguity of its own.  Under the statute, a mineral owner can prevent the county recorder from vesting title in the surface owner by filing a claim to preserve a mineral interest or an affidavit that a Savings Event occurred in the twenty years prior to notice.  However, a separate provision states the mineral interest is lost if a Savings Event does not occur within the twenty years preceding notice.  Therefore, a mineral owner can still prevent the county recorder from vesting title in the surface owner by filing a claim to preserve a mineral interest, even if no Savings Event occurred in the twenty years prior to notice; however, the statute’s direct requirement for a Savings Event in the twenty years prior to notice would allow a court of law to vest title in the surface owner despite the filing of the claim to preserve a mineral interest after receiving notice.  While no court has decided this issue, a plain reading of the statute would suggest such an outcome.

Given ambiguities contained in both the 1989 and 2006 statutes, the lack of clarity regarding the interplay between each statute, and dearth of case law interpreting either statute, there are inherent risks in crediting mineral rights in Ohio.  From our own practice, it is clear that uncertainty already exists among energy companies, land owners, and their attorneys.  Unfortunately, in light of such uncertainty, without a judicial determination or a stipulation of interest, there is risk of competing claims to the mineral interest.  Consequently, in most instances where the Dormant Mineral Act could apply, we recommend our clients obtain a stipulation of interest or protection leases from the surface and prior mineral owners. [2] 

 R.C. 5301.56 (1989)

 Overview of the Act as originally drafted in 1989

 A number of states, including Pennsylvania, Maryland, Michigan, Indiana, and Ohio, have enacted Dormant Mineral Act Statutes.[3]  The purpose of such statutes is to allow severed oil and gas rights to be deemed abandoned and transferred to the current surface estate owner.[4]  State legislatures enacted dormant mineral statutes as a response to the inadequacy of addressing the issue of stale and abandoned mineral interests clouding title through traditional remedies such as adverse possession, marketable title statutes, and tax sales.[5] On March 22, 1989, the Ohio legislature enacted Ohio’s Dormant Mineral Act, R.C. 5301.56 as an expansion to the Ohio Marketable Title Act, R.C. 5301.47-5301.56.  The statute provided that a mineral interest held by any person other than the surface owner was deemed abandoned and vested with the surface estate absent the occurrence of a Savings Event.  Specifically, the Act reunited the mineral estate with the surface owner except where the mineral interest was in coal, or mining or other rights related to coal or where the interest was held by the United States, Ohio, or one of their political subdivisions.  On the other hand, the interest was preserved where, within the preceding twenty years, one of the following Savings Events occurred:

  1. the mineral interest was the subject of a title transaction recorded in the county where the minerals are located;
  2. there was actual production or withdrawal of minerals by the mineral owner or the owner’s lessee;
  3. the mineral interest has been used in underground gas storage operations;
  4. a drilling or mining permit has been issued to the mineral interest holder;
  5. the mineral interest holder filed a claim to preserve the mineral interest; or
  6. a separately listed tax parcel number was created  for the mineral interest.[6]

Two Savings Events in particular, the occurrence of a recorded title transaction and the submission by the mineral interest holder of a claim to preserve the mineral interest, merit individual attention.

Any title transaction that the mineral estate was the subject of that occurred within the twenty year period prescribed by the Act preserved the mineral interest against abandonment.  A “title transaction” is broadly defined under R.C. 5301.47 as:

[A]ny transaction affecting title to any interest in land, including title by will or descent, title by tax deed, or by trustee’s, assignee’s, guardian’s, executor’s, administrator’s, or sheriff’s deed, or decree of any court, as well as warranty deed, quit claim deed, or mortgage.[7]

Thus, virtually any transaction conveying an interest in land, whether by deed, will, intestacy or foreclosure, qualified as a title transaction under the Marketable Title Act. However, under the Dormant Mineral Act, a mineral interest must be the “subject of a title transaction” in order to be a savings event.

Additionally, a mineral interest holder could preclude the abandonment of his or her interest by recording a claim to preserve mineral interests stating that “the holder does not intend to abandon, but instead to preserve” his or her rights in the mineral interest.[8]  The Act provided that a mineral interest may be “preserved indefinitely from being deemed abandoned” through the filing of successive preservation claims.[9]  In situations where the severed mineral interest was fractionalized, a mineral owner who elected to file a preservation claim preserved the rights of all holders of a mineral interest in the same lands.[10]

Lastly, the Act contained a grace-period provision, providing that a mineral interest would not be deemed abandoned for lack of a Savings Event “until three years from the effective of this section.”[11]       

Interpreting the 1989 Dormant Mineral Act

 Due to an ambiguity in its wording, the 1989 Dormant Mineral Act failed to clearly identify when a mineral interest had been abandoned, and contrary to the intent of the Ohio legislature, made it “difficult if not impossible to identify the owners of some mineral interests.”[12]  Specifically, while the statute provided that the mineral interest was preserved if one of the Savings Events described above occurred “within the preceding twenty years,” the statute failed to state a particular date from which the prior twenty years were to be measured. 

Only one reported case in Ohio purports to speak to this issue. Commentators have interpreted the appellate decision in Riddel v. Layman[13] as requiring a Savings Event within a fixed twenty years prior to the Act’s enactment. In Riddel, the appellee Eula Faye Layman and her husband executed a deed transferring her 111-acre property to Hilda Layman in 1965.  The deed was recorded in June 12, 1973.  In that conveyance, the grantors reserved a forty-nine percent mineral interest.  In May 1973, Layman conveyed the property to Fred and Christine Tarbox, who subsequently conveyed the property to the appellant James Riddel in 1990.  The conveyances to the Tarboxes and to Riddel omitted a recitation of the mineral reservation. 

Riddel and Layman asserted competing claims to the minerals.  Riddel argued that under the Act, because there “was no title transaction regarding the mineral rights in the twenty years prior to the enactment of the statute…and Layman failed to file a claim to preserve interest in the mineral rights,” Layman’s mineral rights were abandoned and vested in his surface estate.[14] 

The Court found in favor of Layman, reasoning that the June 12, 1973, recording of the 1965 deed conveying the property to Hilda Layman qualified as a title transaction under R.C.5301.47(F) that preserved the mineral estate.  In finding for Layman, the court reasoned that since Layman recorded the deed on June 12, 1973, within the preceding twenty years from the date the statute was enacted, that recording preserved Layman’s interest in the minerals. 

Interpretation of the Riddel decision 

Commentators Keller & Russell appear to interpret the Riddel decision as suggesting the Dormant Mineral Act required a fixed “look-back period” between March 22, 1969, and March 22, 1989, so that if a Savings Event did not occur between those dates, the mineral interest vested in the surface owner.[15]  This view likely originates from dicta wherein the court found that “the title transaction must have occurred within the preceding twenty years from the enactment of the statute, which occurred on March 22, 1989.”[16]  However, the only issue before the Riddel court was whether the 1973 recording of the 1965 deed to Hilda Layman qualified as a title transaction, and thus, a Savings Event.  The court was not presented with the issue of whether a subsequent Savings Event occurred twenty years later. For reasons we explain below, interpreting Riddel as creating a fixed look-back period is flawed.  Instead, we believe that the statute, as originally enacted, contemplated a “rolling look-back period” of twenty years.  A fixed look-back period, which would only preserve those minerals interests that were subject to a Savings Event in the years between March 22, 1969 and March 22, 1989, is inconsistent with the language of other provisions in the Act.  Namely, R.C. 5301.56(D)(1) provides: 

A mineral interest may be preserved indefinitely from being deemed abandoned under division (B)(1) of this section by the occurrence of any of the circumstances described in division (B)(1)(c) of this section, including, but not limited to, successive filings of claims to preserve mineral interests under division (C) of this section.[17]

A statute that only recognized Savings Events between the years of 1969 and 1989 would have no use for provisions allowing for the indefinite preservation of mineral interests through the successive filing of preservation claims.  Furthermore, such a reading contravenes the purpose of the statute in providing a continuous mechanism to resolve confusion over stale interests clouding title.  The interpretation of Riddel as limiting the Act to a sole twenty-year window contravenes both legislative intent and the statute’s plain language.  Instead, we believe the drafters of the statute contemplated a rolling look-back period that operated to continuously reunite mineral estates, subject to the occurrence of the aforementioned Savings Events. 

Therefore, we propose the following analysis for determining the ownership of mineral interests under the 1989 Act.  Taking into account the three-year grace period, a title examiner first examines the twenty-three years from March 22, 1992 to March 22, 1969.[18]  If no Savings Event occurred within this time, the mineral interest is abandoned.  If, however, a Savings Event occurred in that period, one looks forward twenty years from the date of the last Savings Event.  If no subsequent Savings Event occurred in the twenty years since the last Savings Event, the mineral interest is similarly abandoned.  Such a reading is consistent with the statute’s contemplation of a mechanism by which the mineral owner can indefinitely preserve his or her interest through successive Savings Events.

2006 CHANGE IN THE LAW

Recognizing the flawed and sometimes harsh nature of the 1989 statute, the Ohio legislature passed an amendment in 2006.  The championed change in the new law is the requirement that a surface owner give notice to the mineral owner before a mineral interest is deemed abandoned and merged with the surface estate.   After a set period following notice, the surface owner can file an affidavit of abandonment and cause the county recorder to memorialize the record on which the severed mineral interest is based with notice that the mineral interest has been abandoned. Thereafter, the interest vests in the surface owner.[19]  Therefore, the 2006 statute is not self-executing like its 1989 predecessor and requires a surface owner seeking to have a mineral interest declared abandoned to comply with the procedure described below. 

Surface Owner Must Give Notice: In order to acquire an abandoned mineral interest, the surface owner must “serve notice by certified mail, return receipt requested, to each holder or each holder’s successor or assignees.”[20]  If service notice cannot be completed, the surface owner must serve by publication in a “newspaper of general circulation in each county” in which the land is located.[21] 

The notice must contain the following:  (1) the name of each holder and the holder’s successors and assignees, as applicable;  (2) a description of the surface of the subject land, including the volume and page number of the recorded deed or instrument;  (3) a description of the mineral interest to be abandoned, including the volume and page number of the recorded instrument on which the interest is based;  (4) a statement that none of the exceptions [i.e. Savings Events] contained in subsection (B)(3) of the statute have occurred;  and (5) a statement of intent of the owner of the surface of the lands subject to the mineral interest to file in the office of the county recorder an affidavit of abandonment between thirty and sixty days after the date on which notice is served or published.[22]  After notice has been completed, the surface owner must then comply with the second requirement of the statute: the filing of an affidavit. 

Surface Owner Must File Affidavit: After thirty days, but before sixty days, of the serving or publication of notice, the surface owner must file an affidavit with the county recorder of each county in which the land is located.[23]  The affidavit must contain the following:  (1) a statement that the person filing the affidavit is the owner of the surface of the land subject to the mineral interest;  (2) the volume and page number of the recorded instrument memorializing the mineral interest;  (3) a statement that the mineral interest has been abandoned pursuant to the statute;  (4) a recital of the facts constituting abandonment;  and (5) a statement that notice was served on each holder or each holder’s successors or assignees or published in compliance with the statute.[24] 

Mineral Owner Must Act After Receiving Notice: A mineral owner who receives notice must take action within sixty days.  The owner can either (1) file a claim to preserve the mineral interest or (2) file an affidavit that identifies a Savings Event that served to preserve the mineral interest. Finally, the mineral owner must notify the surface owner that the above has been filed.  

Failure to take the above action within sixty days of receiving notice will result in a forfeiture of the interest.  If the owner of the interest fails to take such action, the surface owner can have the county recorder memorialize the record on which the severed interest is based with the following: “This mineral interest abandoned pursuant to affidavit of abandonment recorded in volume …., page …..”[25]  Immediately following this memorialization, the mineral interest vests in the surface owner.  Finally, the former mineral owner’s record of interest ceases to be notice of such interest and cannot be received as evidence in any court in the State of Ohio.[26]  Therefore, it is important for mineral interest owners to take action to preserve their interests.  The safest method, absent other qualifying saving events occurring on the land, is to file a claim to preserve mineral interests at least every twenty years. 

The procedure above offers a whole new framework for reuniting abandoned mineral interests with the surface estate in Ohio.  It provides mineral interest owners an opportunity to protest an allegation of abandonment facilitated by the surface owner’s issuance of notice.  Most importantly, the statute clarifies the starting point for the twenty-year look-back period as being the years immediately preceding the giving of notice.  However, while the new statute clarifies the old ambiguity of when to calculate the twenty-year look-back period, it has raised new questions that no Ohio court has presently addressed. 

Ambiguities in New Statute: There appear to be two conflicting provisions of the 2006 statute. A mineral owner who prevents the county recorder from vesting title in a surface owner by filing a claim to preserve a mineral interest after receiving notice, but where no Savings Event has actually occurred in the twenty years prior to notice being given, may still lose the interest through a court order.[27]  

The statute allows a surface owner to cause the county recorder to vest title into the surface estate if the mineral estate owner (1) does not file a claim to preserve a mineral interest within sixty days of receiving notice or (2) fails to file an affidavit that identifies a Savings Event which occurred in the twenty years preceding the giving of notice.[28]  One such Savings Event eligible to make up the substance of the affidavit is that a claim to preserve a mineral interest was filed in the previous twenty years before notice.  Therefore, the statute appears to empower the mineral owner to prevent the county recorder from noting a vesting of the mineral interest into the surface estate, through either a claim to preserve a mineral interest within sixty days of receiving notice or an affidavit that a claim to preserve a mineral interest was filed within the twenty years preceding notice.

However, the statute also explicitly states in subsection (B) that the interests “shall be deemed abandoned and vested in the owner of the surface of the lands” if the surface owner gives notice, files an affidavit in compliance with section (E), and none of the exceptions in (B)(1-3) apply.[29]  The exceptions in (B)(3) require a Savings Event to have happened “[w]ithin the twenty years immediately preceding the date on which notice is served or published.”[30]  Therefore, the two provisions conflict and result in an open door to litigation where a claim to preserve a mineral interest is filed within sixty days of receiving notice but no saving event occurred, including filing of a claim to preserve interest, within twenty years preceding notice.[31]  While the plain language of the statute would prevent the county recorder from transferring title, it would not prevent a court of law from doing the same.  As of the date of this memo, no court has decided this issue. 

INTERPLAY OF 1989 AND 2006 STATUTE & REQUIREMENT THAT MINERAL INTEREST MUST BE THE “SUBJECT OF” A TITLE TRANSACTION TO BE A SAVINGS EVENT

The 2006 amendment was passed in an effort to address the lack of a requirement to give notice in the 1989 Dormant Mineral Act as well as to clear up “holes in [the] former statute that did not clearly define when a mineral right had been abandoned.”[32]  However, the 2006 amendment does not speak to its application to the period before its passage.  As recently as 2010, an Ohio court in Wiseman v. Potts granted summary judgment based on an argument that the 1989 statute applied.[33]  Therefore, it would seem that the 1989 statute still plays a role in examining title and crediting ownership of mineral rights in Ohio. 

In addition to applying the 1989 statute, the Wiseman court also seemed to agree with the crux of the plaintiff’s argument, that the alleged mineral interests were not “the subject of”[34] the title transactions alleged to be Savings Events.  In the plaintiff’s argument, counsel set forth that the transactions at issue only contained references to exceptions of the mineral interests in the property description and did not “create or convey” those interests.[35]   Therefore, Wiseman is a good indication of how an Ohio court will classify a title transaction under the Dormant Mineral Act as compared to other provisions of the Marketable Title Act.[36] 

CONCLUSION

As explained above, we do not believe that the decision in Riddel stands for the proposition that the 1989 Dormant Mineral Act contemplates one fixed look-back period.  There, the Court was not presented with the issue of whether the statute created a fixed look-back.  Further, a plain reading of the statute would be irreconcilable with that interpretation.  Therefore, we recommend crediting ownership of minerals by applying the 1989 statute on a rolling basis.  In addition, we read the ambiguity of the 2006 statute to necessitate a strict requirement of a Savings Event in the twenty-year period preceding notice. While a mineral owner can prevent the county recorder from vesting title to the surface owner by filing a claim to preserve a mineral interest after receiving notice, but where no Savings Event occurred in the twenty years preceding notice, the wording of the statute would allow a court of law to facilitate the transfer if no Savings Event occurred in the twenty years preceding notice.

Given ambiguities contained in both the 1989 and 2006 statutes, the lack of clarity regarding the interplay between each statute, and dearth of case law interpreting either statute, there are inherent risks in crediting mineral rights in Ohio.  From our own practice, it is clear that uncertainty already exists among energy companies, land owners, and their attorneys.  We have encountered situations where, under a tract with a prior mineral severance, Company A obtains an oil and gas lease from a surface owner apparently vested with title to the minerals under the 1989 statute.  Subsequently in the chain of title, the prior mineral owner files a claim to preserve minerals under the 2006 statute and thereafter executes a lease in favor of Company B.

Unfortunately, in light of such uncertainty, without a judicial determination or a stipulation of interest, there is risk of competing claims to the mineral interest.  Consequently, in most instances where the Dormant Mineral Act could apply, we recommend our clients obtain a stipulation of interest or protection leases from the surface and prior mineral owners.[37]  

This Memorandum provides only general information and should not be relied upon as legal advice.  For more information, contact your Hameline & Eccleston, LLP attorney.

 


[1]  In the factual circumstance where a savings event occurs in the first three years of the original twenty-year look-back period (where twenty years would elapse before the end of the grace period), courts will likely interpret the statute as not vesting the mineral interest with the surface estate until after the end of the grace period.  See Texaco v. Short, 454 U.S. 516, 528 (1982).

[2]  Additionally, given the fact that we are typically only presented with instruments of record, in order to determine if certain Savings Events occurred, we require our clients to obtain i) Affidavits from the Ohio Division of Mineral Resources and at least one other disinterested person with knowledge of the history of the property at issue, indicating that during the relevant period a) there was no production from the property, b) the property was not used for the underground storage of natural gas, and c) no drilling permits had been issued for the property; and ii) An Affidavit from the County Auditor establishing that no separate tax parcel number for severed mineral interest had been created during the relevant period.

[3]  See Pennsylvania Dormant Oil and Gas Act, 58 Pa. Cons. Stat. § 701.1; Maryland Dormant Mineral Interest Act, Md. Code Ann., Envir. § 15-1201; Michigan Dormant Mineral Act, Mich. Comp. Laws Ann. § 554.291; Indiana Dormant Minerals Act, Ind. Code § 32-23-10-1; Ohio Dormant Minerals Act, infra

[4]  See Lawrence Elkus, The Dormant Mineral Act for the General and Real Estate Practitioner, 71 Mich. B.J. 62 (1992).

[5]  Melanie Tuttle, A Dormant Mineral Statute that Provides for Automatic Lapse and Reversion of Mineral Rights to Surface Owners Upon Failure to use the Mineral Estate or to File a State of Claim Every Twenty Years or Within a Two-Year Grace Period is Constitutional. – Texaco, Inc. v. Short, 51 U. Cin. L. Rev. 452, 456 (1982).

[6]  Ohio Rev. Code Ann. § 5301.56(B)(1)(c) (West 1989).

[7]  Id. § 5301.47(F)

[8]  Id. § 5301.56(C)(1)(c).

[9]  Id. § 5301.56(D)(1).

[10]  Id. § 5301.56(C)(2).

[11]  Id. § 5301.56(B)(2) (West 1989)

[12]  Second Hearing on HB 288 Before the House Public Utilities and Energy Committee (Oct. 19, 2005) (testimony of Jerry Jordan, member of the OSBA Natural Resources Committee) available at http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5 (accessed Jan. 11, 2012) (webpage access restricted to members).

[13]  Riddel v. Layman, No. 94CA114, 1995 WL 498812 (Ohio Ct. App., July 10, 1995).

[14]  Id. at *2.

[15]  John Keller & Gregory Russell, Ohio Dormant Mineral Act, Ohio Lawyer (November/December 2011), available at http://www.ohiobar.org/Pages/OSBANewsDetail.aspx?itemID=1808.

[16]  Riddel, 1995 WL 498812 at *3.

[17]  Ohio Rev. Code Ann. § 5301.56(D)(1) (West 1989) (emphasis added).

[18]  This formulation takes into account the savings provision in R.C. 5301.56(B)(2).

[19]  § 5301.56(H)(2)

[20]  § 5301.56(E)(1).

[21]  Id.

[22]  Id. § 5301.56(F)(1-5).

[23]  Id. § 5301.56(E)(2)

[24]  Id. § 5301.56(G)(1-5).

[25]  Id. § 5301.56(H)(2).

[26]  Id.

[27]  Keller & Russell, supra note 15

[28]  § 5301.56(H)(2).

[29]  § 5301.56(B).

[30]  § 5301.56(B)(3).

[31]  The statement of Jon Airey, before the Ohio Senate, recommended an interest be abandoned if no savings event occurred in the 20 years before the surface owner petitioned to reunite the surface estate with the severed mineral interest. There was no mention, to our knowledge, that a mineral owner should be able to save an interest by filing an affidavit after receiving notice if no savings event occurred in the prior twenty years. While not dispositive on the intent of the legislature, the lack of the recommendation on the record weighs in favor of our reading.  Second Hearing on HB 288 Before the Senate Public Utilities and Energy Committee (Feb. 14, 2006) testimony of Jon Airey, a partner in a Columbus law firm) available at httpHYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ ://HYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ wwwHYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ .HYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ ohcapconHYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ .HYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ comHYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ /HYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ BillHistoryHYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ .HYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ aspxHYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ ?HYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ billnumHYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ =HYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ hbHYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ 288&HYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ gaHYPERLINK “http://www.ohcapcon.com/BillHistory.aspx?billnum=hb288&ga=5″ =5 (accessed Jan. 11, 2012) (webpage access restricted to members).

[32]  Jordan, supra note 12.

[33]  Wiseman v. Potts, Morgan C.P. No. 08CV0145 (June 29, 2010) ( The Wiseman court later dismissed the case with prejudice after being notified the parties had settled prior to the decision being filed).

[34]  See § 5301.56 (B)(3)(a).

[35]  Reply of Plaintiffs In Support Of Their Motion For Summary Judgment at 2, Wiseman v. Potts, Morgan C.P. No. 08CV0145 (June 29, 2010) (copy available upon request). 

[36]  Compare § 531.56(B)(1)(c)(i) (current version at § 5301.56(B)(3)(a)) (“The mineral interest has been the subject of a title transaction…”), with § 5301.49 (“[s]uch record marketable title shall be subject to: (A) All interests and defects which are inherent in the muniments of which such chain of record title is formed; provided that a general reference in such muniments…shall not be sufficient to preserve them, unless specific identification be made therein of a recorded title transaction…”) (emphasis added).

[37] Additionally, given the fact that we are typically only presented with instruments of record, in order to determine if certain Savings Events occurred, we require our clients to obtain i) Affidavits from the Ohio Division of Mineral Resources and at least one other disinterested person with knowledge of the history of the property at issue, indicating that during the relevant period a) there was no production from the property, b) the property was not used for the underground storage of natural gas, c) no drilling permits had been issued for the property; and ii) An Affidavit from the County Auditor establishing that no separate tax parcel number for severed mineral interest had been created during the relevant period.

Comments are closed.