Shale Energy Law Blog
In its MTA analysis, the court scrutinized the language of the root of title deed used by the surface owners to establish title to the severed interest. If the surface owner’s root of title contained a reference to an oil and gas reservation, the court found that the surface owner was precluded from claiming the mineral interest had been extinguished under the MTA. The court determined that even a perfunctory exception to oil and gas “as heretofore reserved” barred the surface owner from claiming title to the mineral interest under the MTA. Finding that the severed minerals survived extinguishment under the MTA, the court addressed underlying defects in the surface owner’s DMA procedure.
In denying the surface owners’ claims under the DMA in Miller and Soucik, the court determined that the surface owners failed to satisfy the diligence required by Ohio law in identifying the mineral holders before permitting notice by publication. Even though the margins of the deeds severing the mineral interests contained notations of abandonment, the court permitted examination of the underlying procedure to determine whether abandonment was proper. Surface owners carry the burden to establish that they attempted service by certified mail prior to proceeding to notice by publication. Because the surface owners in Miller and Soucik failed to provide evidence through affidavits or otherwise that they even attempted to serve notice by certified mail, the court found that the surface owners failed to comply with the notice provisions of the DMA. Therefore, the court ruled that the severed mineral interests had not been abandoned under the DMA.