This case addressed two issues: first, the interpretation of a reservation of minerals in a 1961 deed; second, the effect of a mineral owner’s claim to preserve that is filed after the statutory 20-year abandonment period. Analyzing the plain language of the deed, the court held that the deed reserved the entire mineral estate. The court dismissed the second issue as meritless, relying on the recent Ohio Supreme Court decision in Dodd v. Croskey.102 This brief will only address the deed interpretation issue. The interest in question is the mineral estate underlying a tract of land located in Jefferson Township, Noble County, Ohio, which is subject to the following chain of title:
1. In 1874, Isaac and Hannah Atkinson sold a portion of the mineral estate to George Rice (“the Rice Mineral Interest”).
2. In 1937, Isaac conveyed the surface estate to his wife, Cora Atkinson, and reserved the remaining portion of the unsold mineral estate for himself (“the Atkinson Mineral Interest”). The language of the 1937 deed made specific mention of the previously conveyed Rice Mineral Interest.
3. Isaac died in 1959, and Cora inherited by intestate succession the Atkinson Mineral Interest.
4. In 1960, Cora died testate, and her will devised an equal third of all the interest she owned in the tract to Margaret Morris, Smith Ballentine, Donald L. Brooker (herein after referred to collectively as “Brooker”).
5. In 1961, the executor of Cora’s estate conveyed the land to Delmar and Betty Lewis.
6. In 1998, Gudrun McAuley (“McAuley”) acquired the surface of the land. The controversy centers on the language used in the reservation clause of the 1961 deed (“the 1961 deed”), which provided:
“RESERVING from the operation of this deed the undivided interest in the oil, gas, coal and other minerals underlying said premises and reserved in a deed from Isaac Atkinson and Hannah Atkinson to George Rice and further reserved in a deed from Isaac W. Atkinson to Cora Atkinson, in Volume 89 at Page 576, Deed Record of Noble County, Ohio.”
In September of 2014, McAuley filed suit to quiet title seeking to reunite the minerals underlying the tract with the surface. Both parties moved for summary judgment. The trial court granted summary judgment in favor of Brooker, finding that the language of the 1961 deed reserved the Atkinson Mineral Interest. On appeal, McAuley argued that the 1961 deed conveyed the Atkinson Mineral Interest along with the surface.
In a split decision, the majority of the court began its interpretation of the 1961 deed by stating that the reservation clause is comprised of three parts: (1) reference to the entire mineral estate, (2) reference to the 1874 deed that created the Rice Mineral Interest, and (3) reference to the 1937 deed that created the Atkinson Mineral Interest and excepted the Rice Mineral Interest. McAuley argued that the language of the clause refers only to the Rice Mineral Interest because of the use of the phrase “and further reserved in” that precedes the reference to the 1937 deed. McAuley insisted that this phrase indicated that the third part of the clause was only included as a further reference to the Rice Mineral Interest as it was specifically mentioned in the 1937 deed; therefore, the language of the clause did not reserve the Atkinson Mineral Interest.
The majority disagreed with McAuley’s rationale, reasoning that the language, “and further reserved in,” is intended for part two and part three together to modify and describe part one of the clause—the entire mineral estate. Having found that the clause is referring to the entire mineral estate and noting that the clause begins with the phrase, “RESERVING from the operation of this deed,” the majority held that when the clause is read as a whole, it indicates that the 1961 deed did not convey any of the minerals underlying the property.103
Finally, McAuley argued that the reservation clause in the 1961 deed failed because the doctrine of merger applied. Accordingly, to prevent the minerals from being conveyed with the surface, the 1961 deed would have to make a separate reservation aside from merely a reference to the 1937 deed’s reservation. The majority stated that the question of whether the doctrine of merger applies is contingent upon the intent of the parties. Examining the plain language of the 1961 deed, the majority determined that because the clause specifically references the 1937 reservation, clear intent was shown for the minerals and surface to remain severed, thus rejecting McAuley’s final argument.
The majority concluded by holding that the clause at issue is unambiguous and excluded the mineral interest from the conveyance, thereby affirming the trial court’s grant of summary judgment for Brooker.
In a dissenting opinion, Justice Waite argued that the lack of a comma in the clause at question between the reference to the 1874 deed to Rice and the 1937 deed to Cora should result in a plain reading of the clause revealing only two parts: (1) the reference to the entire mineral estate and (2) the reference to the Rice Mineral Interest. Justice Waite then quotes Steiner v. Morrison, “[a] court must read words and phrases in context and construe them in accordance with rules of grammar and common usage … According to ordinary grammar rules, items in a series are normally separated by commas.”104 Justice Waite concludes that because the phrases are not separated by a comma, the clause can only refer to one interest, the Rice Mineral Interest, and therefore dissents from the majority opinion as to its interpretation of the deed.
This case further illuminates the importance of caution when interpreting reservation clauses in your chain of title.
101 McAuley v. Brooker, 7th Dist. Noble Nos. 17, 0445, 2017-Ohio-9222.
102 Dodd v. Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147 at ¶ 30. “We conclude that the plain language of the Dormant Mineral Act permits a mineral-interest holder’s claim to preserve to serve two separate but similar functions depending on when it is filed for record: one as a savings event under R.C. 5301.56(B)(3)(e) when filed in the 20 years preceding notice and another to preclude the mineral interest from being deemed abandoned under R.C. 5301.56(H)(1)(a) when filed within 60 days after service of the surface owner’s notice.”
103 McAuley v. Brooker, 7th Dist. Noble Nos. 17, 0445, 2017-Ohio-9222 at ¶ 29.
104 Steiner v. Morrison, 7th Dist. No. 14 MA 0114, 2016-Ohio-4798.