Ohio’s Seventh District Court of Appeals Clarifies Past Holdings, Confirms Marketable Title Act Available to Surface Owners Seeking to Extinguish Severed Mineral Interests
Ohio’s Seventh District Court of Appeals recently ruled that Ohio’s Marketable Title Act (the “MTA”) does not conflict with the Dormant Mineral Act (“DMA”), and that both statutes can be utilized by a surface owner to claim ownership of severed minerals. W. v. Bode, 2019-Ohio-4092 (Ct. App.). The Monroe County trial court found that the DMA irreconcilably conflicted with the MTA and that the surface owners were limited to the process set forth in the DMA to claim ownership of a severed royalty interest. However, the Seventh District reversed and determined that, although the DMA provides a separate procedure, both the MTA and the DMA are available to surface owners attempting to claim ownership of a severed mineral interest.
In addition to Bode, the Seventh District issued two opinions clarifying earlier 2019 decisions pertaining to the MTA. Hickman v. Consolidation Coal Co., 2019-Ohio-4077 (Ct. App.) and Miller v. Mellot, 2019-Ohio-4084 (Ct. App.). In its previous decisions, the Seventh District held that if the surface owner’s root of title contained any reference to an oil and gas exception/reservation, the surface owner was precluded from claiming the mineral interest had been extinguished under the MTA. In Hickman and Miller, the Seventh District clarified that it reached that conclusion solely due to the void in the post-severance/pre-root deed history contained in the record in these cases. Because the records were silent as to the interest owned by the grantors in the root of title deeds, the court could not ascertain that the exception/reservation contained therein operated as a reference instead of an original severance. The Seventh District confirmed that the Blackstone analysis1 applies where the root of title contains a reference to a prior reference.
Enacted in 1961, the MTA operates to extinguish interests after 40 years unless a statutory exception applies. While originally excluding minerals from its application, a 1973 amendment caused the MTA to apply to all minerals except coal. In 1989, the Ohio legislature amended the MTA to include the DMA, which provides a method to have severed minerals “deemed abandoned” after 20 years absent a savings event. Therefore, the DMA provides a method, including service of notice on the holders, of declaring a mineral interest abandoned after only 20 years and the MTA results in an automatic extinguishment of an interest after 40 years. The availability of these coextensive alternatives depends on the time passed and the nature of the chain of title for both the surface and minerals. In holding that both the DMA and MTA apply to minerals, the Seventh District provided greater flexibility to surface owners and operators seeking to develop oil and gas in Ohio.