1. Fifth District Court of Appeals
In a dispute over mineral ownership, the Ohio Court of Appeals, Fifth Appellate District considered the questions of whether (1) the trial court erred when it held that the rights conferred by the 1989 Ohio Dormant Mineral Act (“ODMA”) were not property rights protected by the United States Constitution and (2) whether the trial court erred when it held that the severed mineral interest at issue was not subject to judicial abandonment under the 2006 ODMA. In affirming the trial court’s ruling that title to the mineral rights should be quieted in favor of the mineral owners, the court held that the 2006 ODMA applied because the rights conferred by the 1989 ODMA were not vested property rights protected by the United States Constitution, and the severed mineral interests were not subject to judicial abandonment under the 2006 ODMA.20
On December 17, 1952, John and Marjorie Dickerson jointly transferred their surface interest in 82 acres of land to the Pittsburgh Consolidated Coal Company (“Pittsburg Coal”) via warranty deed, each retaining a one-half interest in all of the oil and gas and effectively severing the mineral estate. John and Marjorie Dickerson passed away more than two decades later. John Dickerson’s mineral rights were not included in his estate, and Marjorie’s estate was not probated at the time of her death. John and Marjorie Dickerson were survived by their sole heirs, Judith Dickerson, Mary Louise Foster, Elaine Harris, Claire Dickerson, Richard Dickerson, Robert Dickerson, Raymond Dickerson, Constance Clark, Deborah Snelson, Misty Engstrom, Ronald Dickerson, John Dickerson and Wanda Dickerson (“the Dickersons”).
Pittsburgh Coal reclaimed the property after John and Marjorie Dickerson’s deaths. In 1997, Pittsburgh Coal sold the property by way of a limited warranty deed to Neil Porter, who in turn sold the property in 2006 to Christopher and Veronica Wendt (“the Wendts”) via a survivorship deed, and subject to the reservation of “John R. Dickerson and Marjorie I. Dickerson, their heirs and assigns for all of the oil and gas with the right to drill in Warranty Deed filed for record December 17, 1952 in Volume 133, page 69, Deed Records.”21
From 1952 to 2011, the Dickersons took no action related to their mineral rights to the property. On February 28, 2011, the Dickersons’ appointed representative recorded two affidavits for the purpose of transferring the described premises to the heirs at law of Marjorie and John Dickerson. Later in the spring of 2011, the Dickersons executed a lease to Chesapeake Exploration, LLC for the mineral rights to the property. Unbeknownst to the Dickersons, the Wendts also sought to lease the mineral rights to the property and signed a lease with Chesapeake Exploration.
After the lease failed due to the Dickersons’ potential interest in the mineral rights, the Wendts published a notification of abandonment in the newspaper. The Wendts also recorded an affidavit of abandonment with the Harrison County Recorder’s Office asserting the Wendts owned all the oil and gas rights based on the automatic operation of the 1989 ODMA and that the mineral estate had vested in the surface owners on March 22, 1992.22
The Wendts filed suit against the Dickersons seeking declaratory judgment that they were the lawful owners of mineral rights. The Dickersons responded with counterclaims alleging slander of title and intentional interference with business relationships. The trial court ruled in favor of the Dickersons and held that the 2006 ODMA applied to all claims asserted after June 30, 2006, and that the Wendts had asserted their claims against the Dickersons in 2011. Additionally, the court held that the alleged property rights possessed by the Wendts, including the cause of action, were not vested property rights, and therefore, the application of the 2006 ODMA was constitutional. Furthermore, the court ruled that the Wendts’ claim failed under the 2006 ODMA because the mineral rights they sought were subject to a savings event. The court also found that the Wendts’ claim failed because the Wendts did not comply with the notice requirement of the 2006 ODMA, and the Dickersons had properly preserved their mineral rights by filing two claims to preserve their mineral interests. The Wendts filed an appeal of the trial court’s judgment on two points of error prompting the appellate court to issue this opinion.23
In their first point of error, the Wendts argued that the trial court erred in holding they were not entitled to the have the 1989 ODMA’s conclusive presumption applied to the Dickersons’ reservation because the presumption and related causes of action are protected property rights under the United States Constitution. However, the appellate court rejected this argument on the grounds that the controlling case Corban v. Chesapeake Exploration, LLC,24 did not employ the “conclusive presumption” analysis in shaping their decision, and even if the 1989 ODMA guaranteed such a property right, it was not the legislature’s intent to strip surface holders of a right to abandoned minerals accrued before the 2006 ODMA took effect.25 The court elaborated that the surface holders did not lose a property right when the ODMA was reformed in 2006, as the 1989 ODMA guaranteed, at most, an evidentiary presumption. The change in the ODMA was the procedural process of statutory notice by which mineral rights are deemed abandoned and vested in the surface holder, not whether a surface holder has the right to bring a cause of action for abandonment.26 The Wendts’ due process rights were not violated because they did not possess a vested property right in the mineral estate.
In their second point of error, the Wendts contended the trial court erred in holding the severed mineral interest was not subject to judicial abandonment. The Wendts argued that they owned the mineral estate because they properly filed an affidavit of abandonment. Additionally, because there was a lack of a savings event in the 20 years before the notice, they contended they were entitled to relief pursuant to the 2006 ODMA regardless of whether the Dickersons had filed their claim to preserve. Specifically, the Wendts argued the Dickersons’ affidavits for transfer of real estate inherited filed in 2011 did not qualify as a savings event under the 2006 ODMA.27 While the Wendts did not dispute the Dickersons timely recorded Claims to Preserve Mineral Interests in response to the Wendts’ notice of abandonment, they argued that they may seek judicial confirmation of the conclusive presumption of abandonment, regardless of the filing of the claims to preserve as there was no preserving event in the 20 years prior to their serving of the notice. The court rejected the Wendts’ contentions.
Reasoning that the Dickersons’ claims to preserve in this case were factually analogous to those filed in Dodd v. Croskey, the court emphasized the Supreme Court of Ohio’s holding, which states that after the surface owner files a notice of abandonment, a mineral interest holder may assert its mineral interest has not been abandoned by filing a claim to preserve within 60 days after the surface owner’s intent to declare the interests abandoned.28 Accordingly, the Dickersons’ claims to preserve complied with the 2006 ODMA and preserved their rights as the mineral interest holders. Thus, the court reasoned that even if the Wendts had properly served the notice of abandonment pursuant to the 2006 ODMA, and even if there had been no savings event during the 20 years preceding the Wendts serving the notice, the Dickersons properly preserved their rights by filing timely claims to preserve.
In conclusion, the appellate court affirmed the trial court’s holding that the 1989 ODMA did not create a vested property right, and therefore, neither a conclusive presumption nor a cause of action for abandonment was a constitutionally protected property right. Additionally, the severed mineral interests were not subject to judicial abandonment under the 2006 ODMA because timely notices to preserve were filed. It is important to note that under the 2006 ODMA, to properly preserve one’s interest in a mineral estate, an individual may submit an affidavit of a savings event that occurred in the 20 years prior to the abandonment, or a timely claim to preserve their interest can be filed within 60 days after a notice of abandonment is receive. The actions are exclusive of each other, and only one of the actions is required to preserve a severed mineral interest.
19 Wendt v. Dickerson , Fifth Dist. Ohio No. 08AP, 2018-Ohio-1034.
20 Dickerson at ¶21-22.
21 Id. at ¶4.
22 Id. at ¶6-7.
23 Id at ¶9-20.
24 Corban v. Chesapeake Exploration, LLC , 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.2d 1089.
25 Dickerson at ¶27-33.
26 Id. at ¶30.
27 Id. at ¶40-1.
28 Dodd v. Croskey , 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147.