In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

JON D. WALKER, JR.,Petitioner,

v.

PATRICIA J. SHONDRICK-NAU,EXECUTRIX OF THE ESTATE OF JOHNR. NOON AND SUCCESSOR TRUSTEE

OF THE JOHN R. NOON TRUST, Respondent.

On Petition for Writ of Certiorari to theOhio Supreme Court

PETITION FOR WRIT OF CERTIORARI

James F. Mathews Counsel of RecordBAKER, DUBLIKAR, BECK,WILEY & MATHEWS400 South Main StreetNorth Canton, Ohio 44702Phone: (330)499-6000Fax: (330) 499-6423mathews@bakerfirm.com

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO.

Kenneth J. CardinalCARDINAL LAW OFFICES758 North 15th StreetP.O. Box 207Sebring, Ohio 44672Phone: (330) 938-2161Fax: (330) 938-1556cardinallaw@sbcglobal.net

Counsel for Petitioner

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QUESTIONS PRESENTED

The questions presented involve the limits imposedby the Due Process Clause and the Contracts Clause tothe United States Constitution on the application of anamendment to a state statute, when vested propertyrights have accrued under a prior version of the act. The Ohio Supreme Court reversed lower courtdecisions wherein the courts ruled that valuable rightsto oil and gas underlying the petitioner’s real propertyhad vested in petitioner by operation of law, inaccordance with the Ohio Dormant Mineral Act (1989). The interests which petitioner obtained through hisgrantors’ deeds had vested in the property title in 1992– upon expiration of the 20-year dormancy period and3-year tolling provision after enactment of the DormantMineral Act by the Ohio legislature in 1989. Nevertheless, the Ohio Supreme Court applied anamended version of the Ohio Dormant Mineral Act(2006) to strip petitioner of his vested rights. A seriesof 12 other cases were decided by the state SupremeCourt on the same date as this case involving thesesame issues, and a far greater number of Ohio propertyowners were adversely affected by the decisions.

Two questions are presented:

1. When a property interest has vested pursuant toa lawful statutory enactment of a state legislature,does the Due Process Clause to the Federal Constitutionpreclude the retroactive application of a later-enacted,statutory amendment to divest the property right?

2. When a property interest, vested pursuant to alawful statutory enactment of a state legislature, hasbeen conveyed by contract in the form of a deed of

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conveyance, does the Contracts Clause to the FederalConstitution preclude the retroactive application of alater-enacted, statutory amendment which destroyssuch interest?

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PARTIES TO THE PROCEEDINGS

The petitioner, Jon D. Walker, Jr., is a citizen of thestate of Ohio, who owns real property located in NobleCounty, Ohio.

The respondent is Patricia J. Shondrick-Nau, in hercapacity as Executrix of the Estate of John R. Noon andSuccessor Trustee of the John R. Noon Trust. John R.Noon owned the property currently titled in thepetitioner a number of decades ago, and he had severedthe oil and gas interest in the subject property in 1965.

CORPORATE DISCLOSURE STATEMENT

The petitioner and respondent are natural persons. Neither party is a subsidiary or affiliate of a publicly-owned corporation. No publicly-owned corporation hasany direct financial interest in the outcome of thislitigation.

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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . iii

CORPORATE DISCLOSURE STATEMENT . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

REASONS FOR ALLOWANCE OF THE WRIT . . 10

I. REVIEW IS WARRANTED BECAUSE THEDUE PROCESS CLAUSE TO THEFOURTEENTH AMENDMENT PROHIBITSTHE APPLICATION OF AN AMENDEDSTATE STATUTE TO DISTURB PROPERTYRIGHTS WHICH VESTED UNDER THEFORMER VERSION OF THE LAW . . . . . . . . . 12

II. REVIEW IS NECESSARY BECAUSE THECONTRACTS CLAUSE TO THE UNITEDSTATES CONSTITUTION PROHIBITS THEAPPLICATION OF AN AMENDED STATESTATUTE WHICH IMPAIRS CONTRACTRIGHTS WHICH VESTED BY OPERATION OFTHE FORMER VERSION OF THE LAW . . . . 33

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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

APPENDIX

Appendix A Opinion in the Supreme Court of Ohio(September 15, 2016) . . . . . . . . . . App. 1

Appendix B Opinion in the Court of Appeals Stateof Ohio, Noble County, SeventhDistrict(April 3, 2014) . . . . . . . . . . . . . . App. 14

Appendix C Journal Entry in the Court of CommonPleas, Noble, Ohio(March 20, 2013) . . . . . . . . . . . . App. 36

Appendix D Constitutional and StatutoryProvisions Involved . . . . . . . . . . App. 41

U.S. Const. Art. I, § 10 . . . . . . . . App. 41

U.S. Const. amend. XIV, § 1 . . . App. 41

OH Const. Art. II, § 28 . . . . . . . . App. 42

O.R.C. § 1.58 . . . . . . . . . . . . . . . App. 43

O.R.C. § 5301.56 (2006 Version) . . . . . . . . . . . . . . App. 44

O.R.C. § 5301.56 (1989 Version) . . . . . . . . . . . . . . App. 53

Sub. S.B. 223 . . . . . . . . . . . . . . . App. 57

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TABLE OF AUTHORITIESCASES

Albanese v. Batman, ___ Ohio St.3d ___, 2016-Ohio-5814 (Ohio) . . . 16

Albanese v. Batman, 2014-Ohio-5517 (11th Dist.) . . . . . . . . . . . . . . . . . 8

Calder v. Bull, 3 U.S. 386, 3 Dallas 386, 1 L.Ed 648 (1798) . . . 10

Carmell v. Tex., 529 U.S. 513 (2000) . . . . . . . . . . . . . . . . . . . . . . 11

Carney v. Shockley, ___ Ohio St.3d ___, 2016-Ohio-5824 (Ohio) . . . 16

Carney v. Shockley, 2014-Ohio-5830 (7th Dist.) . . . . . . . . . . . . . . . . . . 8

Corban v. Chesapeake Exploration, L.L.C., ___ Ohio St.3d ___, 2016-Ohio-5796 . . . . . . . . . . . . . . . . . . . . . passim

Cross Lake Club v. Louisiana, 224 U.S. 632 (1912) . . . . . . . . . . . . . . . . . . . . . . 35

Dahlgren v. Brown Farm Prop, LLC, ___ Ohio St.3d ___, 2016-Ohio-5818 (Ohio) . . . 16

Dahlgren v. Brown Farm Prop, LLC, 2014-Ohio-4001 (7th Dist.) . . . . . . . . . . . . . . . . . . 8

Dassel v. Hershberger, 2010-Ohio-6595 (4th Dist.) . . . . . . . . . . . . . . . . . 33

E. Enters. v. Apfel, 524 U.S. 498 (1998) . . . . . . . . . . . . . . . . . . . . . . 10

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Eisenbarth v. Reusser, ___ Ohio St.3d ___, 2016-Ohio-5819 (Ohio) . . . 16

Eisenbarth v. Reusser, 2014-Ohio-3792 (7th Dist.) . . . . . . . . . . . . . . . . . . 8

Farnsworth v. Burkhart, ___ Ohio St.3d ___, , 2016-Ohio-5816 (Ohio) . . 16

Farnsworth v. Burkhart, 2014-Ohio-4184 (7th Dist.) . . . . . . . . . . . . . . . . . . 8

Galambros v. Estep, 2016-Ohio-5615 (5th Dist.) . . . . . . . . . . . . . . . . . 33

Griffin v. First Natl. Acceptance Co., 2013-Ohio-4302 (11th Dist.) . . . . . . . . . . . . . . . . 34

Johannessen v. United States, 225 U.S. 227 (1912) . . . . . . . . . . . . . . . . . . . . . . 10

Kelly v. Medical Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987) . . . . . . . . . . . . . . . . . . . . 33

Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229, (1994) . . . . . . . . . . . . . . . . . . 11

Lynce v. Mathis, 519 U.S. 433, 439, 117 S. Ct. 891, 137 L.Ed 2d 63 (1996) . . . . . . . . . . . . . . . . . . . . 11

New Orleans Water Works Co. v. Louisiana, 125 U.S. 18 (1888) . . . . . . . . . . . . . . . . . . . . . . . 35

Orwell Natl. Gas Co. v. Fredon Corp., 2015-Ohio-1212 (11th Dist.) . . . . . . . . . . . . . . . . 34

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Rice, Admix. v. Rice, 2002-Ohio-3459 (7th Dist.) . . . . . . . . . . . . . . . . . 33

Shannon v. Householder, ___ Ohio St.3d ___, 2016-Ohio-5817 (Ohio) . . . 16

Shannon v. Householder, 2014-Ohio-2359 (7th Dist.) . . . . . . . . . . . . . . . . . . 8

Short v. Texaco, Inc., 273 Ind. 518, 406 N.E. 2d 625 (1980) . . . . . 14, 15

Swartz v. Householder, ___ Ohio St.3d ___, 2016-Ohio-5817 (Ohio) . . . 16

Swartz v. Householder, 2014-Ohio-2359 (7th Dist.) . . . . . . . . . . . . . . . . . . 8

Taylor v. Crosby, ___ Ohio St.3d ___, 2016-Ohio-5820 (Ohio) . . . 16

Texaco, Inc. v. Short, 454 U.S. 516 (1982) . . . . . . . . . . . . . . . . . . passim

Thompson v. Custer, ___ Ohio St.3d ___, , 2016-Ohio-5823 (Ohio) . . 16

Thompson v. Custer, 2014-Ohio-5711 (11th Dist.) . . . . . . . . . . . . . . . . . 8

Thompson v. Custer, Trumbull C.P. Case No. 2013 CV 2358 (June 16, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Tribett v. Shepherd, ___ Ohio St.3d ___, 2016-Ohio-5821 (Ohio) . . . 16

Tribett v. Shepherd, 2014-Ohio-4320 (7th Dist.) . . . . . . . . . . . . . . . . . . 8

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United States v. Winstar Corp., 518 U.S. 839, 116 S. Ct. 2432, 135 L.Ed. 2d 964 (1996) . . . . . . . . . . . . . . . . . . . 11

Wendt v. Dickerson, ___ Ohio St.3d ___, 2016-Ohio-5822 (Ohio) . . . . . . . . . . . . . . . . . . . . 16

Wendt v. Dickerson, 2014-Ohio-4615 (5th Dist.) . . . . . . . . . . . . . . . . . . 8

CONSTITUTION AND STATUTES

U.S. Const. Art. I, § 10 . . . . . . . . . . . . . . 2, 11, 33, 35

U.S. Const. amend. XIV, § 1 . . . . . . . . . . . . . 2, 11, 12

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Ohio Const. Art. II, Sec. 28 . . . . . . . . . . . . . . . . . . . . 2

Ohio Rev. Code § 1.58 . . . . . . . . . . . . . . . . . . 2, 31, 32

Ohio Rev. Code § 5301.56 (1989) . . . . . . . . . . passim

Ohio Rev. Code § 5301.56 (2006) . . . . . . . . . . passim

OTHER AUTHORITY

Ohio Legislative Service Commission Report,December 1988, for Sub. S.B. 223 . . . . . . . 3, 4, 13

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PETITION FOR A WRIT OF CERTIORARI

Petitioner, Jon D. Walker, Jr., respectfully petitionsthis Honorable Court for a writ of certiorari to reviewthe judgment of the Ohio Supreme Court in this case.

OPINIONS BELOW

The opinion of the Ohio Supreme Court is availableat ____ Ohio St.3d ___, 2016-Ohio-5793 (Ohio). Thestate Supreme Court’s opinion is reproduced in theappendix hereto at Pet. App. 1. The state SupremeCourt reversed the decision of the Ohio SeventhDistrict Court of Appeals. The state appellate court’sdecision is reported at 2014-Ohio-1499 (7th Dist. Ohio,Apr. 3, 2014). The appellate court’s decision isreproduced in the appendix hereto at Pet. App. 14.

STATEMENT OF JURISDICTION

The Ohio Supreme Court entered judgment againstthe petitioner in this matter on September 15, 2016. This Court has jurisdiction to review on a writ ofcertiorari the judgment in question as it is a judgmententered by the highest Court in the state of Ohio. 28U.S.C. § 1257. This petition calls into direct questionthe validity of an amended state statute which hasbeen given effect in a manner which disturbs vestedproperty rights in contravention to restraints imposedby the Federal Constitution.

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CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED

The constitutional and statutory provisions relevantto the instant petition include the following:

United States Constitution, Fourteenth Amendment,Sec. 1 (Pet. App. 41)

United States Constitution, Art. I, Sec. 10 (Pet. App.41)

Ohio Constitution, Art. II, Sec. 28 (Pet. App. 42)

Ohio Revised Code 1.58 (Pet. App. 43)

Ohio Revised Code 5301.56 (1989) (Pet. App. 53)

Ohio Revised Code 5301.56 (2006) (Pet. App. 44)

STATEMENT OF THE CASE

Properties throughout the state of Ohio have beenutilized for oil and gas production for many years. Most recently, the development of Utica Shale regions,primarily in Southeast Ohio, has brought about amajor resurgence of oil and gas activities in the state. The petitioner, Jon D. Walker, Jr., owns real propertylocated in Noble County, Ohio, a prime areaexperiencing Utica Shale development.

Petitioner filed his complaint in this case in theNoble County, Ohio Court of Common Pleas, seekingjudgment under the Ohio Dormant Mineral Act(“DMA”).1 The petitioner requested a declaratory

1 Petitioner’s claim throughout was premised upon the 1989version of the DMA. In his complaint, he alleged, in part: “The

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judgment and to quiet title to the oil and gas rights inhis real property. Many years prior to petitioner’sacquisition of his property, there had been a severanceof the oil and gas interests from the surface interests. That severance occurred by way of an instrumentrecorded on July 26, 1965. The petitioner filed thiscase for the purpose of demonstrating that thepreviously-severed mineral interests had merged, byoperation of law, in accordance with the DMA. Consequently, the oil and gas interests in and to thepetitioner’s property vested with the petitioner.

The Ohio General Assembly enacted the DMA in1989. Enacted as R.C. 5301.56, the DMA wasoriginally effective March 22, 1989. As explained in theComments set forth in the Ohio Legislative ServiceCommission Report, December 1988, for Sub. S.B. 223,the DMA was to operate as follows to provide for whenand how a severed oil and gas interest becameabandoned:

Sub. S.B. 223

Sens. Cupp, Schafrath, Nettle, Drake, Burch.

Provides that, in the absence of certain specifiedoccurrences within the preceding 20-year period,a subsurface mineral interest that is not in coalor not of a governmental entity is deemed to be

mineral interest merged with the surface estate in the plaintiff’sProperty no later than March 22, 1992. By operation of law, andas a consequence of such merger, the plaintiff’s predecessor(s) intitle became the exclusive owner(s) of all applicable rights andinterests in the Property, including the surface and the oil and gasunderlying same.”

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abandoned and its title vested in the surfaceowner. (Effective: March 22, 1989).

The act modifies the Marketable Title Law toprescribe when the holder of a subsurfacemineral interest, who is not also the surfaceowner, is deemed to have abandoned theinterest. If deemed abandonment occurs, the actprovides that the interest will vest in the surfaceowner.

Deemed abandonment and vesting will occur ifnone of the act’s specified exceptions applies toa particular subsurface mineral interest. However, the act states that deemedabandonment cannot so occur until three yearsfrom its effective date.. . .

(Pet. App. 57). The statute provided for “certainspecified occurrences” that would operate to preserve asevered mineral interest. These were described asfollows:

5301.56 Abandonment and preservation ofmineral interests

(A) As used in this section:

(1) “Holder” means the record holder of amineral interest, and any person whoderives his rights from, or has a commonsource with, the record holder and whoseclaim does not indicate, expressly or byclear implication, that it is adverse to theinterest of the record holder.

. . .

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(B)(1) Any mineral interest held by any person,other than the owner of the surface of thelands subject to the interest, shall bedeemed abandoned and vested in theowner of the surface, if none of thefollowing applies:

(i) The mineral interest has been the subjectof a title transaction that has been filed orrecorded in the office of the countyrecorder of the county in which the landsare located;

(ii) There has been actual production orwithdrawal of minerals by the holderfrom the lands, from lands covered by alease to which the mineral interest issubject, . . .;

(iii) The mineral interest has been used inunderground gas storage operations bythe holder;

(iv) A drilling or mining permit has beenissued to the holder, . . .;

(v) A claim to preserve the mineral interesthas been filed in accordance with division(C) of this section;

(vi) In the case of a separated mineralinterest, a separately listed tax parcelnumber has been created for the mineralinterest in the county auditor’s tax listand the county treasurer’s duplicate taxlist in the county in which the lands arelocated . . . .

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R.C. 5301.56 (1989). (Pet. App. 53). The variousoccurrences have been denominated “savings events” inthe Ohio courts. As noted above, the General Assemblyexpressly provided for a three-year tolling periodfollowing enactment of the DMA, meaning “deemedabandonment [could] not so occur until three yearsfrom its effective date” or on March 22, 1992. R.C.5301.56(B)(2) (1989).

In his suit, the petitioner maintained that there hadbeen no “savings events” following the original 1965severance of oil and gas underlying his property; thus,the severed interest was both “deemed abandoned” and“vested” in petitioner’s surface ownership. Theabandonment and vesting occurred automatically, as amatter of law, under the terms of the 1989 enactmentof the DMA. Because well over twenty years hadpassed since the original severance without a savingsevent occurrence, after the three-year protective tollingprovision set forth as part of the law, the vesting in thesurface ownership occurred effective March 22, 1992. The merged and vested oil and gas rights were thenconveyed to petitioner through the deeds from hisgrantors.

The old, 1965 reservation was originally recordedand held by John R. Noon, the original defendant thusnamed in petitioner’s suit. Mr. Noon died during thependency of suit, and the respondent, Patricia J.Shondrick-Nau, in her capacity as Executrix of theEstate of John R. Noon and Successor Trustee of theJohn R. Noon Trust, was joined in his stead. Theparties submitted cross-motions for summary judgmentfor the determination of the trial court. By JournalEntry filed on March 20, 2013, the trial court granted

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the petitioner’s motion and overruled the respondent’smotion. The state trial court held that the interests inthe oil and gas underlying the petitioner’s propertywere quieted in favor of the petitioner.2

Respondent pursued an appeal before the OhioSeventh District Court of Appeals. Finding that therecord developed and argued in this case fullysupported the determination that the previously-severed mineral interest merged with the surfaceestate, automatically, under the 1989 version of DMA,the appellate court affirmed. The appellate court’sdecision was rendered on April 3, 2014. In part, thestate appellate court held that:

When the 2006 version of R.C. 5301.56 wasenacted, Noon’s mineral interest had alreadybeen abandoned and the mineral interest hadbeen vested with the surface owner for 14 years. Once the mineral interest vested in the surfaceowner, it was reunited with the surface estate. Noon did not have any mineral interest in thesubject property after March 22, 1992, becauseon that date the interest automatically vested inthe surface owner by operation of the statute. And once the mineral interest vested in thesurface owner, it “completely and definitely”belonged to the surface owner.

2 The trial court dispensed with any consideration of the 2006amendment by stressing that: “Any discussion of R.C. 5301.56,effective June 30, 2006 is moot, because as of June 30, 2006, anyinterest of Defendant in the oil and gas had been abandoned.” (Pet. App. 39).

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(Pet. App. 29-30, 2014-Ohio-1499, ¶41).3 The appellatecourt held that the 2006 amendment could only applyprospectively. The amendment could not affect any“right, privilege, obligation, or liability previouslyacquired.” Id., ¶37. Other Ohio courts had reachedsimilar conclusions as to the operation of the 1989version of the DMA. Swartz v. Householder, 2014-Ohio-2359 (7th Dist.); Tribett v. Shepherd, 2014-Ohio-4320 (7th Dist.); Wendt v. Dickerson, 2014-Ohio-4615(5th Dist.); Carney v. Shockley, 2014-Ohio-5830 (7th

Dist.); Dahlgren v. Brown Farm Prop, LLC, 2014-Ohio-4001 (7th Dist.); Eisenbarth v. Reusser, 2014-Ohio-3792(7th Dist.); Farnsworth v. Burkhart, 2014-Ohio-4184 (7th

Dist.); Shannon v. Householder, 2014-Ohio-2359 (7th

Dist.); Thompson v. Custer, 2014-Ohio-5711 (11th Dist.);Albanese v. Batman, 2014-Ohio-5517 (11th Dist.).

The respondent pursued a further appeal to theOhio Supreme Court. The state Supreme Courtaccepted jurisdiction in the appeal and, on September15, 2016, issued its opinion which reversed theappellate court’s judgment. The state Supreme Courtapplied an amended version of the DMA, passed by theOhio General Assembly in 2006, in reaching thedecision to reverse the lower court judgments in favorof the petitioner. Application of the later-enactedstatute – passed well after the oil and gas interests

3 Petitioner repeatedly argued below advancing theconstitutionality of the 1989 version of the DMA, based upon thesimilarities between the Ohio statute and that which passedconstitutional scrutiny in Texaco, Inc. v. Short, 454 U.S. 516(1982). This argument was addressed in petitioner’s merit briefbefore the state Supreme Court. http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=757784.pdf, pp. 30-31.

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involved had already become dormant and weredeemed abandoned and vested within the surfacetitle – operates to deprive petitioner due process of law. Equally important is the effect on petitioner’s deeds,the contracts by which petitioner obtained title to hisproperty. The severed oil and gas rights, which hadlapsed, were part and parcel of those deeds ofconveyance, and application of the amended statuteenacted after the rights had vested in petitioner’sgrantors directly impairs petitioner’s contracted rights. The 2006 version of the Ohio DMA should not havebeen applied to the operation or effect of the DMA in1992, when the surface owner’s rights to the oil and gasinterests fully vested.4 Due process was satisfied bythe self-executing effect of the 1989 version of theDMA; as petitioner argued in reliance upon Texaco,Inc. v. Short.

4 In defense of the trial court’s judgment, the petitioner maintainedthroughout the state appeals that the amended, 2006 version ofthe Ohio DMA could not be applied precisely because of petitioner’svested rights to the oil and gas. Petitioner argued in his briefbefore the appellate court: “The 2006 amendment is presumed tooperate prospectively.” “Regardless, the 2006 amendment cannotbe applied retroactively to impair or take away vested rights.” Similarly, before the state Supreme Court, petitioner argued:“Frankly, the only point of constitutional contention ripe forconsideration in this case is that addressed herein below ! theconstitutional prohibition against the amendment or reenactmentof a statute from disturbing a previously vested right or interest.” “It is fundamental that the 2006 amendment cannot be appliedretroactively to impair or take away vested rights.” http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=757784.pdf, pp. 30,33.

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REASONS FOR ALLOWANCE OF THE WRIT

Due process of law is a fundamental precept inAmerican jurisprudence, and there is, as a result, thepresumption against the retroactive application ofstatutory enactments or amendments to vestedproperty rights. The state Supreme Court’s decisionapplying a legislative amendment to the DMA passed14 years after the oil and gas interests at issue hadalready vested under the former version of the DMAappears patently unjust and prejudicial to thepetitioner. Moreover, the state court’s opinion has far-reaching implications for thousands of property ownersin the state of Ohio who will now find themselvesburdened by old, lapsed oil and gas reservations –reservations that should be recognized as having beenabandoned – and thereupon merged and vested withthe title to the surface by operation of law. The stateSupreme Court’s decision in this case implicatescountless millions of dollars in lost, unrecoverablevalue – in the form of lease signing bonuses andproduction royalties – to Ohio property owners.

The Court’s jurisprudence identifies a variety ofgrounds historically advanced for the protection ofvested rights from the retroactive application ofstatutory enactments. Those include: the Ex Post FactoClauses of the United States Constitution, the Bill ofAttainder Clauses, the Contracts Clause, the TakingsClause and the Due Process Clauses. The Ex PostClause is generally accepted as confined to lawsrespecting criminal punishments. Johannessen v.United States, 225 U.S. 227, 242 (1912); Calder v. Bull,3 U.S. 386, 390, 3 Dallas 386, 1 L.Ed 648 (1798); butsee, E. Enters. v. Apfel, 524 U.S. 498, 538-39 (1998) and

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Carmell v. Tex., 529 U.S. 513, 567 (2000). The Bill ofAttainder Clauses and Takings Clauses both have theirrole in this context. As applied to the facts andprocedures of this case, it appears as though the DueProcess and Contracts Clause analysis are most fitting. Both questions presented herein are inextricablyconnected to the vested rights position held bypetitioner below. Although, a Justice of the OhioSupreme Court opined that application of the 2006version of the DMA operated to affect a taking ofproperty without compensation.

We must begin the analysis by accepting a series ofwell-established principles. “The presumption againstthe retroactive application of new laws is an essentialthread in the mantle of protection that the law affordsthe individual citizen. That presumption ‘is deeplyrooted in our jurisprudence, and embodies a legaldoctrine centuries older than our Republic.’” Lynce v.Mathis, Super., 519 U.S. 433, 439, 117 S. Ct. 891, 137L.Ed 2d 63 (1996), citing, Landgraf v. USI FilmProducts, 511 U.S. 244, 265, 114 S. Ct. 1483, 128 L. Ed.2d 229 (1994). As expressed above, “[t]his doctrinefinds expression in several provisions of ourConstitution.” Lynce v. Mathis, supra. “The specificprohibition on ex post facto laws is only one aspect ofthe broader constitutional protection against arbitrarychanges in the law. In both the civil and the criminalcontext, the Constitution places limits on thesovereign’s ability to use its lawmaking power tomodify bargains it has made with its subjects. Thebasic principle is one that protects not only the rich andthe powerful, United States v. Winstar Corp., 518 U.S.839, 135 L.Ed. 2d 964, 116 S. Ct. 2432 (1996), but alsothe indigent defendant engaged in negotiations that

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may lead to an acknowledgment of guilt and a suitablepunishment.” Lynce v. Mathis, 519 U.S. at 440.

I. REVIEW IS WARRANTED BECAUSE THE DUEPROCESS CLAUSE TO THE FOURTEENTHAMENDMENT PROHIBITS THE APPLICATIONOF AN AMENDED STATE STATUTE TODISTURB PROPERTY RIGHTS WHICH VESTEDUNDER THE FORMER VERSION OF THE LAW.

The Ohio General Assembly made a bargain withOhio citizens in the form of the Dormant Mineral Actpassed in 1989. In spite of the tortured reading of thestatute by the state Supreme Court majority, that firstversion of the Ohio DMA operated automatically, tounite previously-severed oil and gas interests,abandoned after years without use or other act ofpreservation, and vested those rights in the title of thesurface owner.5 The statute relied upon by thepetitioner, and by countless other Ohio propertyowners, stated clearly and unambiguously that:

5301.56 Abandonment and preservation ofmineral interests

5 Adhering to its Corban ruling, the majority of the state SupremeCourt ignored any retroactivity analysis by fashioning a“conclusive presumption” as an “evidentiary device” in itsinterpretation of the 1989 DMA. This approach is thoughtfullycriticized in the Corban dissent. Pfeifer, J. “In doing so, Corbanhas simplified the law. All it took was rewriting it.” Id. The statecourt should have recognized the self-executing feature of the 1989DMA and its validity under Texaco, Inc. v. Short. There is nomeaningful difference between an unused, lapsed mineral interestbeing deemed abandoned and vested or, alternatively,extinguished. Corban, at ¶98.

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(A) As used in this section:

(1) “Holder” means the record holder of amineral interest, and any person whoderives his rights from, or has a commonsource with, the record holder and whoseclaim does not indicate, expressly or byclear implication, that it is adverse to theinterest of the record holder.

. . .

(B)(1) Any mineral interest held by anyperson, other than the owner ofthe surface of the lands subject tothe interest, shall be deemedabandoned and vested in theowner of the surface, if none ofthe following applies: . . . .

R.C. 5301.56 (1989). (Emphasis added). (Pet. App. 53). The General Assembly could have written the DMA(1989) to create a right of action for a surface owner toclaim an abandoned oil and gas interest. It did not,however, draft R.C. 5301.56 in such a fashion. The1989 DMA contained no provision that couldreasonably be interpreted to require a surface owner totake some form of legal action in order to effectuate theabandonment and vesting. The words of the statute donot support such an interpretation; and the Report ofthe Ohio Legislative Service Commission does notsupport such an interpretation.

In the absence of a “savings event” after theseverance and preceding the statutory period ofabandonment, the interests were “deemed abandonedand vested in the owner of the surface.” R.C.

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5301.56(B)(1) (Emphasis added). That is howspecifically the 1989 DMA operated. Thus, no one hadto serve or file any form of notice, did not have torecord any type of instrument, and did not have tosomehow claim the vested rights through a cause ofaction or otherwise. The 1989 version of the statuteactually used that essential word to describe themerger of the mineral interest – it “vested” in thesurface owner.

This Court passed on the constitutionality of justsuch an automatic-vesting, dormant mineral act in thecase of Texaco, Inc. v. Short, 454 U.S. 516 (1982)(“[S]evered mineral interest that is not used for aperiod of 20 years automatically lapses and reverts tothe current surface owner of the property.”). Id., 518. “The Mineral Lapse Act . . . is self-executing and doesnot contemplate an adjudication before a tribunalbefore a lapse occurs. When the statutory conditionsexist the lapse occurs.” Short v. Texaco, Inc., 273 Ind.518, 522, 406 N.E. 2d 625 (1980). In Short v. Texaco,for instance, the Indiana Supreme Court recognized thefollowing:

The purposes of this Act . . . are to remedyuncertainties in titles and to facilitate theexploitation of energy sources and othervaluable mineral resources. The dependence oflocal economies upon the mineral recoveryindustry and the entire State upon limited fossilfuel resources illustrates the public nature ofthese purposes. The objectives are valid andsimilar to those served by acts of limitation andthe law of adverse possession. In limiting itsincursion upon mineral rights to those which

15

have been unused in the statutory sense for aslong as twenty years, and in granting a two yearperiod of grace after the enactment of thestatute to preserve interests, the Legislatureadopted means which are rationally related tosuch objectives, and which themselves provide areasonable time and a simple and inexpensivemethod, taking into consideration the nature ofthe case, for preserving such interests. We findthat this Act is within the police power of thestate and does not unconstitutional impair theobligation of contracts.

Short v. Texaco, 273 Ind. at 526.

When this Court affirmed the Indiana judgment,the Court endorsed automatic abandonment byoperation of a mineral lapse statute:

Each of the actions required by the State toavoid an abandonment of the mineral estatefurthers a legitimate state goal. Certainly theState may encourage owners of mineral intereststo develop the potential of those interests;similarly, the fiscal interest in collectingproperty taxes is manifest. The requirementthat a mineral owner file a public statement ofclaim furthers both of these goals by facilitatingthe identification and location of mineralowners, from whom developers may acquireoperating rights and from whom the county maycollect taxes. The State surely has the power tocondition the ownership of property oncompliance with conditions that impose such a

16

slight burden on the owner while providing suchclear benefits to the State.

Texaco v. Short, 454 U.S. at 529-30.

Operation of the Ohio 1989 Dormant Mineral Act isperhaps best described by Justice Paul Pfeifer in hisdissent in the state Supreme Court’s opinion in Corbanv. Chesapeake Exploration, L.L.C., ___ Ohio St.3d ___,2016-Ohio-5796, announced the same day as thedecision in this case.6 Justice Pfeifer was, by chance, amember of the Ohio General Assembly when the 1989version of the DMA was enacted:

The federal court certified two questions to thiscourt. I dissent from the majority’s response tothe first question. I would hold that the 1989version of R.C. 5301.56 applies to quiet-titleactions filed after 2006 in which the surfaceowner alleges that mineral rights automaticallyvested in the surface owner as a result ofabandonment prior to the effective date of the

6 The other cases decided by the Ohio Supreme Court on theauthority of Corban, in addition to petitioner’s case, were: Swartzv. Householder, ___ Ohio St.3d ___, 2016-Ohio-5817 (Ohio); Tribettv. Shepherd, ___ Ohio St.3d ___, 2016-Ohio-5821 (Ohio); Wendt v.Dickerson, ___ Ohio St.3d ___, 2016-Ohio-5822 (Ohio); Carney v.Shockley, ___ Ohio St.3d ___, 2016-Ohio-5824 (Ohio); Dahlgren v.Brown Farm Prop, LLC, ___ Ohio St.3d ___, 2016-Ohio-5818(Ohio); Eisenbarth v. Reusser, ___ Ohio St.3d ___, 2016-Ohio-5819(Ohio); Farnsworth v. Burkhart, ___ Ohio St.3d ___, 2016-Ohio-5816 (Ohio); Shannon v. Householder, ___ Ohio St.3d ___, 2016-Ohio-5817 (Ohio); Thompson v. Custer, ___ Ohio St.3d ___, 2016-Ohio-5823 (Ohio); Albanese v. Batman, ___ Ohio St.3d ___, 2016-Ohio-5814 (Ohio); Taylor v. Crosby, ___ Ohio St.3d ___, 2016-Ohio-5820 (Ohio).

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2006 amendments to R.C. 5301.56. I concur inthe majority’s response to the second questionthat a payment of delay rental is neither a titletransaction nor a saving event under the OhioDormant Mineral Act (“ODMA’).

1989 ODMAIn 2006, hindsight may have provided theGeneral Assembly the vision it wished it hadhad when it passed the first version of theODMA in 1988. But regardless of the changesthe General Assembly implemented in 2006,former R.C. 5301.56 (“1989 ODMA”) functionedas the law in this state for 17 years, and throughits operation created vested rights in certainproperty owners. Those vested rights cannot betaken away without running afoul of the OhioConstitution and the Ohio Revised Code.

As the lead opinion relates, the GeneralAssembly enacted the 1989 ODMA “to provide amethod for the termination of dormant mineralinterests and the vesting of their title in surfaceowners, in the absence of certain occurrenceswithin the preceding 20 years.” Sub.S.B. No.223, 142 Ohio Laws, Part I, 981 (“S.B. 223”). Itimplemented that clear and unambiguouspurpose through a statute that was bluntlyefficient. The 1989 ODMA stated that “[a]nymineral interest held by any person, other thanthe owner of the surface of the lands subject tothe interest, shall be deemed abandoned andvested in the owner of the surface, if none of thefollowing applies.” Former R.C. 5301.56(B)(1),S.B. 223, 142 Ohio Laws, Part I, 986. The

18

statute set forth the few conditions that couldprevent the reunification of mineral and surfacerights in the land: if the mineral interest wascoal or was owned by a government entity(former R.C. 5301.56(B)(1)(a) and (b)) or if one ofthe saving events under former R.C.5301.56(B)(1)(c) had occurred within the past 20years. Id. Those saving events required someindication of use by the mineral-rights holderand ranged from filing a claim to preserve theinterest to actual drilling or mining. Id. at 986-987.

The impact of the law was not immediate—theGeneral Assembly included in the 1989 ODMAa three-year grace period during which amineral-rights holder could preserve his interestby performing one of the saving events listed informer R.C. 5301.56(B)(1)(c). Former R.C.5301.56(B)(2), S.B. 223, 142 Ohio Laws, Part I,987. A process was thus in place for a mineral-rights holder to prevent the statutoryreunification of the mineral rights with thesurface rights. Mineral-rights holders who haddone nothing with their rights in the previous 20years still had an additional three years topreserve their interests.. . .

The plain language of the 1989 ODMA statesthat absent a saving event, a separate mineralinterest shall be deemed abandoned and themineral interest shall vest in the owner of thesurface property. The statute uses the word“shall—the mineral interest “shall be deemed

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abandoned and vested in the owner of thesurface”—and this court has “repeatedlyrecognized that use of the term ‘shall’ in astatute or rule connotes a mandatory obligationunless other language evidences a clear andunequivocal intent to the contrary.” State ex rel.Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7,2014-Ohio-2354, 14 N.E.3d 989, ¶ 28.

The former statute plainly set forth the fewconditions that the mineral-rights holder neededto meet to prevent the reunification of mineraland surface rights in the land. Former R.C.5301.56 is absolutely silent as to any actionrequired by the surface owner to effectuate thevesting of the mineral rights. There is noprovision requiring the surface owner toaffirmatively assert any claim, record any claim,or file any form of suit or other declaration of thevested interests. There is no statutory languagethat suggests that the vesting of the mineralrights was anything other than automatic. Thestatute mandated that it “shall” occur.

The General Assembly could have required somefurther affirmative action by the surface ownerprior to vesting, but it did not. The UniformDormant Mineral Interests Act (“UDMIA”),which the National Conference ofCommissioners on Uniform State Laws approvedand recommended in August 1986 and whichwas thus available as a model at the time Ohio’sODMA was enacted, requires the surface ownerto “maintain an action to terminate a dormantmineral interest” that is “in the nature of and

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requires the same notice as is required in anaction to quiet title.” UDMIA, Section 4(a),available at http://www.uniformlaws.org/shared/docs/dormant%20mineral%20interests/udmia_final_86.pdf (accessed Dec. 16, 2015). Ohio didnot incorporate that provision into the 1989ODMA.

The fact that it did not had no constitutionalconsequence. The General Assembly stood onsolid constitutional ground in not requiringnotice or filing of suit by the surface owner priorto the mineral interest being deemed abandonedand vested in the surface owner. Before Ohioadopted the 1989 ODMA, the United StatesSupreme Court upheld the constitutionality ofIndiana’s Dormant Mineral Interests Act, “astatute providing that a severed mineral interestthat is not used for a period of 20 yearsautomatically lapses and reverts to the currentsurface owner of the property, unless themineral owner files a statement of claim in thelocal county recorder’s office.” Texaco, Inc. v.Short, 454 U.S. 516, 518, 102 S.Ct. 781, 70L.Ed.2d 738 (1982). The Indiana statute“contained a 2-year grace period in whichowners of mineral interests that were thenunused and subject to lapse could preserve thoseinterests by filing a claim in the recorder’soffice.” Id. at 518-519. Like Ohio’s 1989 ODMA,the Indiana statute did not require the surfaceowner to provide any notice to the mineral-rights holder before the lapse and reversionoccurred; the court referred to the statute as“self-executing”:

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Appellants simply claim that the absence ofspecific notice prior to the lapse of a mineralright renders ineffective the self-executingfeature of the Indiana statute. That claim hasno greater force than a claim that a self-executing statute of limitations isunconstitutional. Id. at 536.

The court held that the inaction of the mineral-rights holder rather than any act of the surfaceowner had caused the property right to lapse:

[T]he State of Indiana has enacted a rule of lawuniformly affecting all citizens that establishesthe circumstances in which a property interestwill lapse through the inaction of its owner. None of the cases cited by appellants suggeststhat an individual must be given advance noticebefore such a rule of law may operate. Id. at537.

Like Indiana, Ohio enacted a self-executingstatute that vested in a surface owner anyseparated mineral rights that had been dormantfor a period of 20 years. Like Indiana’s, Ohio’sstatute was constitutional, and respondents donot argue that it was unconstitutional. They areleft instead to argue that the General Assemblydid not mean what the statute clearly said.

The Lead Opinion’s Interpretation of the 1989ODMA

The lead opinion subjects the 1989 ODMA tojudicial modification under the guise ofinterpretation. What does the lead opinion

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interpret the General Assembly to have meant? Where the General Assembly wrote thatdormant mineral interests “shall be deemedabandoned and vested in the owner of thesurface,” the lead opinion interprets somethinglike, “To reunite mineral rights with the surfacerights, the surface owner must successfullyprosecute a quiet-title action against the ownerof the mineral interest based upon the mineral-rights holder’s alleged abandonment of themineral rights, and in that quiet-title action, thesurface owner shall enjoy a conclusivepresumption that the mineral rights have beenabandoned.” That is, under the lead opinion’sinterpretation, if the mineral rights are deemedabandoned under the 1989 ODMA, the surfaceowner enjoys only a “conclusive presumption” (aterm not used in the statute) in a potentialquiet-title action (an action that is not requiredby or even referred to in the statute). The leadopinion accomplishes this interpretation almostentirely through inserting words not used by theGeneral Assembly. And the lead opinionvirtually ignores the word “vested.”

The Meaning of “Deemed Abandoned”

The lead opinion’s interpretation finds itsgenesis in the words “deemed abandoned.” Thelead opinion states that deeming somethingabandoned creates a conclusive presumption ofabandonment that can be used in a future actionfor proof of abandonment. But instead, the leadopinion should have employed the commonusage of the word “deem.” There is no hidden

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meaning involving future proceedings embeddedin the word “deemed.” “ ‘ “Deemed” has beendefined as “considered,” “determined,” or“adjudged” * * *.’” Jacot v. Secrest, 153 Ohio St.553, 559, 93 N.E.2d 1 (1950), quoting State exrel. Hoagland v. Prairie Cty. School Dist. No. 13,116 Mont. 294, 298, 151 P.2d 168 (1944). At thetime the 1989 ODMA was passed, Black’s LawDictionary defined “deem” as “[t]o hold; consider;adjudge; believe; condemn; determine; treat asif; construe.” Black’s Law Dictionary 374 (5thEd.1979). In State ex rel. Brecksville Edn. Assn.v. State Emp. Relations Bd., 74 Ohio St.3d 665,666, 1996 Ohio 310, 660 N.E.2d 1199 (1996), fn.1, this court noted that bargaining units thathad been “deemed certified” by an uncodifiedsection of an act “are treated as if they had beencertified normally.” In Texaco, the UnitedStates Supreme Court indicated that privateproperty that is “deemed to be abandoned” is“treat[ed] * * * as abandoned.” Texaco, 454 U.S.at 530, 102 S.Ct. 781, 70 L.Ed.2d 738.

This court has previously addressed statutescontaining the word “deemed” and interpretedthem to mean that the deemed result occurredautomatically by operation of law. In State exrel. Battin v. Bush, 40 Ohio St.3d 236, 239, 533N.E.2d 301 (1988), the statute at issue, R.C.305.03(A), provided, “Whenever any countyofficer fails to perform the duties of his office forninety consecutive days, * * * his office shall bedeemed vacant.” Id. at 239. This court held that“[t]he inquiry established by this statute is notwhether one has the right to a particular office

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but whether, upon certain facts, he hasabandoned the office. * * * [T]he statute deemsthe office to be vacant automatically, upon theoccurrence of the statutorily determined events.” Id. This court stated that the statute was “by itsterms, self-executing. Upon the happening ofthe enumerated events, the office is thenvacant.” Id. at 241. [Other examples applying“deemed” omitted]. . . .

Thus, under the plain meaning of the word“deemed” and under the interpretation of theword by this court, the “deemed abandoned”language in the 1989 ODMA means that themineral rights were, by operation of law, to beconsidered or treated as abandoned.

But the lead opinion claims that the “deemedabandoned” language created a presumption ofabandonment that “was only an evidentiarydevice that applied to litigation seeking to quiettitle to a dormant mineral interest.” Leadopinion at ¶ 26. The Michigan Supreme Court,in addressing the “deemed abandoned” languagein Michigan’s dormant-mineral-interest actrejected the idea that it created any evidentiarypresumption:

Contrary to defendants’ arguments, the act doesnot create any evidentiary presumption. Noneof the provisions of the act purport to beconcerned with the owner’s intent to abandon* * *. Rather, the act is designed to increase themarketability and development of severedmineral interests by creating a rule ofsubstantive law which requires owners to

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undertake minimal acts indicative of ownershipat least every 20 years. The statutory approachto these issues has the added advantage ofeliminating uncertainty and minimizinglitigation, see In re Mercure Estate, 391 Mich.443, 448, 216 N.W.2d 914 (1974).

(Footnote deleted in original). Van Slooten v.Larsen, 410 Mich. 21, 50-51, 299 N.W.2d 704(1980).

Like the Michigan statute, the 1989 ODMA didnot create a presumption to be employed in afuture action—instead, it created a rule ofsubstantive law. The law vested a propertyright by operation of law upon the nonoccurrenceof a saving event within a certain period. The1989 ODMA did not merely create a simplifiedway to prove abandonment in a quiet-titleaction; instead, on its own, it vested in thesurface owner the interest in the minerals underthe surface.

Still, a surface owner may choose to bring anaction to quiet title pursuant to R.C. 5303.01 inorder to enforce the rights vested through theoperation of the 1989 ODMA. But the leadopinion conflates the substantive property rightvested by the operation of the 1989 ODMA witha quiet-title action brought pursuant to R.C.5303.01 to achieve judicial recognition of thatproperty right. The 1989 ODMA vested theright, and a separate quiet-title action wouldallow the surface owner to confirm that thestatutory elements had been met and that thereversion of the mineral rights had occurred.

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Vesting is not delayed until the surface ownerbrings a quiet-title action; the quiet-title actionsimply shows the world that the interest hadvested.

Van Slooten recognized that vesting under adormant-mineral-interest act with “deemedabandoned” language occurs without a hearing. The court held that “due process does notrequire a hearing prior to vesting title in theowner of the surface estate” and that a personwho had been deemed to have abandoned hismineral interest would have an opportunityafter vesting “for a hearing to determinewhether the statutory requirements have beenmet and to ascertain the ownership of theproperty.” Van Slooten, 410 Mich. at 55, 299N.W.2d 704. The vesting does not follow a quiet-title action; the quiet-title action follows thevesting.. . .

VestingThe lead opinion spends a great deal of timediscussing the words “deemed abandoned” andprecious little time addressing the word“vested.” The 1989 ODMA stated that themineral rights “shall be deemed abandoned andvested in the owner of the surface.” That word,“vested,” is a problem for the lead opinion. TheGeneral Assembly’s use of the word “vested” inthe 1989 ODMA belies the lead opinion’sassertion that the reunification of the mineralrights with the surface rights is somehowincomplete, short of litigation, upon the passageof 20 years of inactivity by the mineral-rights

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holder. Far from being incomplete, a vestedright is “complete, consummated and subject toinvoluntary divestiture only upon due process oflaw.” Viers v. Dunlap, 1 Ohio St.3d 173, 176, 1Ohio B. 203, 438 N.E.2d 881 (1982), overruled inpart on other grounds, Wilfong v. Batdorf, 6Ohio St.3d 100, 6 Ohio B. 162, 451 N.E.2d 1185(1983), paragraph three of the syllabus. Thiscourt has recognized that “as defined, a right is‘vested’ when it ‘so completely and definitelybelongs to a person that it cannot be impaired ortaken away without the person’s consent.’” Harden v. Ohio Atty. Gen., 101 Ohio St.3d 137,2004-Ohio-382, 802 N.E.2d 1112, ¶ 9, quotingBlack’s Law Dictionary 1324 (7th Ed.1999). That the mineral interest is “vested in the ownerof the surface” means that there is no furtherprocedure necessary to complete thereunification of the mineral rights with thesurface rights.

That vesting is crucial. “A ‘vested right’ can ‘becreated by common law or statute and isgenerally understood to be the power to lawfullydo certain actions or possess certain things; inessence, it is a property right.’” State ex rel.Jordan v. Indus. Comm., 120 Ohio St.3d 412,2008-Ohio-6137, 900 N.E.2d 150, ¶ 9, quotingWashington Cty. Taxpayers Assn. v. Peppel, 78Ohio App.3d 146, 155, 604 N.E.2d 181 (4thDist.1992).

It is because those property rights vested in thequalifying surface owners pursuant to the 1989ODMA that the 2006 amendment to the statute

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cannot apply to those surface owners. First, the2006 changes, which are still in effect today,create a process—where none had existedbefore—requiring surface owners to performcertain tasks prior to mineral interests beingreunited with the surface interest and vested inthe surface owner:

Any mineral interest held by any person, otherthan the owner of the surface of the landssubject to the interest, shall be deemedabandoned and vested in the owner of thesurface of the lands subject to the interest if therequirements established in division (E) of thissection are satisfied and none of the followingapplies. R.C. 5301.56(B).

The requirements of R.C. 5301.56(E)—providingnotice to the mineral-rights holder and filing anaffidavit of abandonment with the countyrecorder—must be met before the mineral rightscan be deemed abandoned and vested in thesurface owner. The 2006 amendmentapplies—by its own terms—only to situations inwhich vesting in the surface owner has not yetoccurred and places conditions on surfaceowners before the mineral rights can vest inthem. Nothing in the 2006 amendment suggeststhat it applies in situations in which mineralrights had already vested before the effectivedate of the amendment. It simply sets forth howmineral interests that had not vested in thesurface owner before the effective date of theamendment can become vested in the surfaceowner.

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Any other interpretation is contrary to theprotections from retroactive legislation providedby R.C. 1.58 and Article II, Section 28 of theOhio Constitution. R.C. 1.58(A)(2) states thatthe amendment of a statute does not “[a]ffectany validation, cure, right, privilege, obligation,or liability previously acquired, accrued,accorded, or incurred thereunder.” Propertyrights automatically vested in the surface ownerunder the 1989 ODMA when the statutoryconditions were met; thus, any amendment tothe statute that operates to affect thoserights—by requiring, for instance, that mineralrights cannot be vested in the surface ownerwithout the performance of certain noticeprocedures—contravenes R.C. 1.58.

Further, Article II, Section 28 of the OhioConstitution prohibits the General Assemblyfrom passing retroactive laws. There is noindication that the General Assembly intendedthe 2006 amendment to be retroactive, butstatutory amendments that appear prospectivein operation nonetheless violate the prohibitionagainst retroactive laws if the statute’sprospective operation would retroactivelydestroy rights that had already vested: We havealso stated that the “retroactivity clause nullifiesthose new laws that ‘reach back and create newburdens, new duties, new obligations, or newliabilities not existing at the time [the statutebecomes effective].’ Miller v. Hixson (1901), 64Ohio St. 39, 51, 59 N.E. 749, 752.” Bielat [v.Bielat], 87 Ohio St.3d [350,] 352-353, 2000 Ohio451, 721 N.E.2d 28 [2000]. In Van Fossen [v.

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Babcock & Wilcox Co., 36 Ohio St.3d 100, 522N.E.2d 489 (1988)], this court stated that theconstitutional limitation against retroactive laws“‘include[s] a prohibition against laws whichcommenced on the date of enactment and whichoperated in futuro, but which, in doing so,divested rights, particularly property rights,which had been vested anterior to the time ofenactment of the laws.’” [Id. at 10], quotingSmead, The Rule Against RetroactiveLegislation: A Basic Principle of Jurisprudence(1936), 20 Minn.L.Rev. 775, 781-782. TobaccoUse Prevention & Control Found. Bd. of Trusteesv. Boyce, 127 Ohio St.3d 511, 2010-Ohio-6207,941 N.E.2d 745, ¶ 14.

To apply the requirements of the 2006amendment to surface owners who had obtainedvested mineral rights pursuant to the 1989ODMA implements a textbook example of anunconstitutionally retroactive law. Under themajority’s holding, the new law reaches backand divests the surface owners of property rightsthat vested prior to the operation of the 2006amendment to the statute. As applied by themajority, the 2006 amendment impairssubstantive vested rights and thus isunconstitutional.. . .

Applying the 2006 amendment to surface ownerswhose rights to mineral interests had vestedpursuant to the 1989 ODMA constitutes nothingless than a taking. The 1989 ODMA providedthat a mineral-rights holder’s interest wasconsidered abandoned by operation of law,

31

having lapsed due to the mineral-right holder’s20 years of inaction, and was subject to a three-year grace period during which a mineral-rightsowner could preserve the interest through asimple filing. In contrast, under the majority’sinterpretation of the 2006 amendment, a surfaceowner whose mineral-rights interest vested byoperation of the 1989 ODMA lost those mineralrights immediately on the effective date of the2006 amendment—without any required periodof inactivity by the surface owner and with noopportunity to preserve the property rightthrough satisfying a statutory condition—for noreason other than that the General Assemblywished the rights to revert to someone else. TheGeneral Assembly gave no indication that the2006 amendment should be interpreted thatway, and R.C. 1.58 and the Ohio Constitutionshould prevent it from being interpreted thatway.

Id., at ¶¶ 107-140.

The petitioner repeatedly advocated the positionbelow that application of the 2006 amendment to theOhio DMA to the facts of his title would violate theprohibitions against retroactive law applied to disturbvested property rights and violate the specific provisionof R.C. 1.58. R.C. 1.58 provides that:

(A) The reenactment, amendment, or repealof a statute does not, except as providedin division (B) of this section:

. . .

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(2) Affect any validation, cure, right,privilege, obligation, or liabilitypreviously acquired, accrued, accorded, orincurred thereunder; . . . .

[Division (B), regarding reduction of penalties andpunishments, is not applicable here]. Because thepetitioner’s predecessor in title acquired the mineralinterest at issue in this case, by the merger of samewith the surface estate under the 1989 version of thestatute, the amendment of that statute in 2006 doesnot affect such rights. “[T]he enactment of the 2006law is of no effect because the mineral rights on thesubject properties were already abandoned. This caseis really that simple.” Thompson v. Custer, TrumbullC.P. Case No. 2013 CV 2358, p. 4 (June 16, 2014).

This case represents precisely what was bestcharacterized in the dissent in Corban: “To apply therequirements of the 2006 amendment to surface ownerswho had obtained vested mineral rights pursuant tothe 1989 ODMA implements a textbook example of anunconstitutionally retroactive law.” Corban, at ¶ 138.

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II. REVIEW IS NECESSARY BECAUSE THECONTRACTS CLAUSE TO THE UNITED STATESC O N S T I T U T I O N P R O H I B I T S T H EAPPLICATION OF AN AMENDED STATESTATUTE WHICH IMPAIRS CONTRACT RIGHTSWHICH VESTED BY OPERATION OF THEFORMER VERSION OF THE LAW.

Under Ohio law, all written instruments, includingdeeds of conveyance, are treated as contractual and,thus, construed and enforced under contract rules. “The construction of written contracts and instruments,including deeds, is a matter of law.” Dassel v.Hershberger, 2010-Ohio-6595, ¶18 (4th Dist.). As withany contract, the courts endeavor to find the parties’intent within the written words of the instrument. “The intent of the parties to a deed controls itsinterpretation.” Id. “The principles of deedconstruction dictate that a court presumes that a deedexpresses the intentions of the grantor and grantee atthe time of execution.” Galambros v. Estep, 2016-Ohio-5615, ¶15 (5th Dist.). “The intent of the parties to acontract is presumed to reside in the language theychose to employ in the agreement.” Kelly v. MedicalLife Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987),syllabus. Summarized succinctly, “A deed is a contract,and is therefore subject to the parol evidence rule.” Rice, Admix. v. Rice, 2002-Ohio-3459, ¶44 (7th Dist.).

The petitioner acquired his property at issue in thiscase by way of two, properly-recorded deeds ofconveyance. One of the deeds was a statutory formDeed of Fiduciary, and the other a General WarrantyDeed. Both deeds were recorded in 2009.

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A General Warranty Deed “has the force and effectof a deed in fee simple to the grantee, the grantee’sheirs, assigns, and successors . . . with covenants on thepart of the grantor with the grantee . . . that thegranted premises were free from all encumbrances. . . .” Griffin v. First Natl. Acceptance Co., 2013-Ohio-4302, ¶21 (11th Dist.). “In the context of property law,a ‘covenant’ denotes a contract . . . .” Orwell Natl. GasCo. v. Fredon Corp., 2015-Ohio-1212, ¶23 (11th Dist.). The petitioner’s interests under his deeds arecontractual and, importantly, the previously-severed oiland gas interests involved had already been abandonedand vested with the ownership of the surface prior tothe delivery of the deeds to the petitioner. There wereno reservations or exceptions set forth in petitioner’sdeeds limiting the breadth of interest conveyed to him. In other words, the deeds delivered to the petitionerconveyed all interests then held by the grantors, whichincluded the merged and vested rights to the oil andgas underlying the subject property.

As thoroughly discussed herein above, the oil andgas rights in and to the petitioner’s property vested byoperation of law under the 1989 version of the DormantMineral Act. Those interests had already merged withthe holder of the surface title (petitioner’s grantors) in1992, after the 3-year grace period or tolling period ofthe DMA had expired. The state Supreme Court’sdecision, applying the later, 2006 amendment of theDMA, strips the oil and gas rights from the deeds ofconveyance to the petitioner. Application of theamended statute fundamentally changes thecontractual bargain between the petitioner and hisgrantors represented by the deeds. This dramaticalteration of petitioner’s interests is prohibited by the

35

Contracts Clause, Art. I, Section 10 of the United StatesConstitution. “No state shall . . . pass any . . . Lawimpairing the Obligations of Contracts.” Id.

“When the state court, either expressly or bynecessary implication, gives effect to a subsequent lawof the state, whereby the obligation of the contract isalleged to be impaired, a federal question is presented.” Cross Lake Club v. Louisiana, 224 U.S. 632 (1912); NewOrleans Water Works Co. v. Louisiana, 125 U.S. 18(1888).

CONCLUSION

For the foregoing reasons, the petition for a writ ofcertiorari should be granted.

Respectfully submitted,James F. Mathews

Counsel of RecordBAKER, DUBLIKAR, BECK,WILEY & MATHEWS400 South Main StreetNorth Canton, Ohio 44702Phone: (330)499-6000Fax: (330) 499-6423mathews@bakerfirm.comKenneth J. CardinalCARDINAL LAW OFFICES758 North 15th StreetP.O. Box 207Sebring, Ohio 44672Phone: (330) 938-2161Fax: (330) 938-1556cardinallaw@sbcglobal.netCounsel for Petitioner

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the Supreme Court of Ohio(September 15, 2016) . . . . . . . . . . App. 1

Appendix B Opinion in the Court of Appeals Stateof Ohio, Noble County, SeventhDistrict(April 3, 2014) . . . . . . . . . . . . . . App. 14

Appendix C Journal Entry in the Court of CommonPleas, Noble, Ohio(March 20, 2013) . . . . . . . . . . . . App. 36

Appendix D Constitutional and StatutoryProvisions Involved . . . . . . . . . . App. 41

U.S. Const. Art. I, § 10 . . . . . . . . App. 41

U.S. Const. amend. XIV, § 1 . . . App. 41

OH Const. Art. II, § 28 . . . . . . . . App. 42

O.R.C. § 1.58 . . . . . . . . . . . . . . . App. 43

O.R.C. § 5301.56 (2006 Version) . . . . . . . . . . . . . . App. 44

O.R.C. § 5301.56 (1989 Version) . . . . . . . . . . . . . . App. 53

Sub. S.B. 223 . . . . . . . . . . . . . . . App. 57

App. 1

APPENDIX A

[Until this opinion appears in the Ohio Official Reportsadvance sheets, it may be cited as Walker v.Shondrick-Nau, Slip Opinion No. 2016-Ohio-5793.]

NOTICE

This slip opinion is subject to formal revision before itis published in an advance sheet of the Ohio OfficialReports. Readers are requested to promptly notify theReporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of anytypographical or other formal errors in the opinion, inorder that corrections may be made before the opinionis published.

SLIP OPINION NO. 2016-OHIO-5793

WALKER, APPELLEE, V. SHONDRICK-NAU, EXR.,APPELLANT.

[Until this opinion appears in the Ohio OfficialReports advance sheets, it may be cited asWalker v. Shondrick-Nau, Slip Opinion No.2016-Ohio-5793.]

Dormant Mineral Act—R.C. 5301.56—Pursuant to Corban v. Chesapeake Exploration, L.L.C., 2006version of Dormant Mineral Act applies—Pursuant to Dodd v. Croskey, owner of severedmineral estate preserved his rights.

App. 2

(No. 2014-0803—Submitted June 23, 2015—DecidedSeptember 15, 2016.) APPEAL from the Court of

Appeals for Noble County,No. 13 NO 402, 2014-Ohio-1499.

_____________________

O’CONNOR, C.J.

{¶ 1} In this appeal, we are asked to apply Ohio’sDormant Mineral Act, R.C. 5301.56, to determine theownership of certain mineral rights. Based on Corbanv. Chesapeake Exploration, L.L.C., __ Ohio St.3d __,2016-Ohio-5796, __ N.E.3d __, the Dormant MineralAct as amended in 2006 applies in this case. And basedon Dodd v. Croskey, 143 Ohio St.3d 293,2015-Ohio-2362, 37 N.E.3d 147, the owner of thesevered mineral estate preserved his rights.Accordingly, we reverse the judgment of the SeventhDistrict Court of Appeals.

Relevant Background

{¶ 2} John Noon acquired the subject real propertyin Noble County, including the mineral rightsunderlying the surface, by a deed recorded in 1965. Thesame year, Noon transferred the surface estate byquitclaim deed but reserved his rights to the coal, oil,gas, and other minerals underlying the surface (“1965Deed”). Specifically, the deed reservation stated asfollows:

Excepting and reserving to the Grantor, hisheirs, successors and assigns, all coal, oil andgas and all other minerals underlying thepremises together with all the easements, rightsand privileges therein which Grantor, his heirs,successors or assigns, in his or their sole

App. 3

discretion, may deem necessary, desirable orconvenient, in order to remove said coal, oil, gasand other minerals by any method nowemployed or hereafter developed, including stripmining methods, from said premises and also toreclaim as required, or permitted by law, saidpremises and any other premises now orhereafter owned, leased or operated upon byGrantor, his heirs, successors and assigns. * * *

The coal, oil, gas and other minerals soreserved may be removed, and the rights andprivileges so reserved may be exercised by theGrantor, his heirs, successors and assigns,without any liability * * *.

Grantor also excepts and reserves untohimself, his heirs, successors and assigns, theownership of a certain Coal Lease between JohnR. Noon and Alice J. Noon, as Lessors, andUnion Carbide Corporation, as Lessee, dated asof December 22, 1964 * * *.

{¶ 3} In 1970 and 1977, the surface estate wasagain transferred, and the recorded deeds thatconveyed the property contained the followingexception of mineral rights:

This Deed is subject to the prior exceptionand reservation contained in the Deed to theGrantors herein, From JOHN R. NOON, datedJuly 26, 1965 and recorded in Volume 123, atPage 404 of the Deed Records of Noble County* * *.

{¶ 4} In addition to specifically referencing the 1965Deed, the deeds restated the 1965 Deed’s reservation

App. 4

language in its entirety, expressly covering “all coal, oiland gas and all other minerals underlying thepremises.”

{¶ 5} In 2009, appellee, Jon D. Walker Jr., acquiredcertain parcels of the property by a fiduciary deed anda general warranty deed, each executed in Arizona andrecorded in Noble County, Ohio. Each deed expresslynoted that it was prepared without a title examinationand made no warranty or guarantee regarding thestate of its title. Each deed contained general languageof exception that the transfer was subject torestrictions of record, and the fiduciary deed conveyingthe bulk of the property stated that the transfer wassubject to all reservations of record. But the deedstransferring the property to Walker did not specificallyreference the 1965 Deed, which reserved the mineralrights in Noon.

{¶ 6} It is clear that at some point, however, Walkerbecame aware of the 1965 Deed, because he specificallyreferenced that deed and the reservation of mineralrights when, in November 2011, he sent a “Notice ofAbandonment of Mineral Interest pursuant to OhioRev. Code § 5301.56” to Noon at his last known addressin St. Clairsville, Ohio. That notice referenced the 1965Deed and stated that the notice related to the mineralinterest reserved by Noon in the recorded deed.

{¶ 7} After sending the notice to Noon, Walker filedan Affidavit of Abandonment of Mineral Interest inJanuary 2012 in the county recorder’s office.1 In

1 The 2006 version of Ohio’s Dormant Mineral Act prescribes thenotice procedures. R.C. 5301.56(E) through (H). Compliance withthe notice and filing procedures is not disputed in this appeal.

App. 5

response, Noon filed in the county recorder’s office anAffidavit and Claim to Preserve Mineral Interests,which stated that he was the owner of oil, gas, coal,and other minerals and other rights reserved in the1965 Deed and that he had “no intention to abandon”the mineral interests.

{¶ 8} In April 2012, Walker filed a declaratory-judgment action against Noon, seeking to quiet title tothe mineral interest. Walker alleged that by operationof the 1989 version of Ohio’s Dormant Mineral Act,former R.C. 5301.56, Sub. S.B. No. 223, 142 Ohio Laws,Part I, 981, effective March 22, 1989, the mineralinterest merged with the surface estate no later thanMarch 22, 1992,2 meaning that the surface and mineralestates had merged before he purchased the propertyin 2009. Walker requested judgment quieting title tothe property, including the mineral estate, in his nameand canceling any reservations or leases adverse to hisinterests.

{¶ 9} Noon moved for summary judgment andasserted that his mineral interest was preservedregardless of whether the 1989 version of the DormantMineral Act or the 2006 version of the DormantMineral Act, 2006 Sub. H.B. No. 288, applied. Walkeralso moved for summary judgment and contended thatbecause the 1989 Dormant Mineral Act wasself-executing, an automatic merger of the surface andmineral estates occurred in 1992.

2 The 1989 version of Ohio’s Dormant Mineral Act provided that amineral interest would not be deemed abandoned under thestatute until three years from the statute’s effective date. FormerR.C. 5301.56(B)(2), Sub. S.B. No. 223, 142 Ohio Laws, Part I, 981,987.

App. 6

{¶ 10} The trial court granted summary judgmentin favor of Walker.

{¶ 11} The Seventh District Court of Appealsaffirmed. The appellate court agreed that the “meremention of the mineral interest reservation in the 1970and 1977 deeds did not make the mineral interest ‘thesubject of’ the title transactions” in order for thosedeeds to constitute a title-transaction saving eventunder the 1989 or the 2006 version of the DormantMineral Act.3 2014-Ohio-1499, ¶ 27. The appellatecourt also concluded that the 1989 version of the actwas self-executing and because there had been nosaving events, the mineral interest was reunited in thesurface estate on March 22, 1992. Id., ¶ 39. Thus, Noonno longer held an interest in the mineral estate whenhe filed his claim to preserve the mineral rights inresponse to Walker’s notice of abandonment.

{¶ 12} The appellate court declined to considerwhether the application of the 1989 version of theDormant Mineral Act was an unconstitutionalretroactive application of substantive law, becauseNoon had not raised this constitutional argumentbelow. 2014-Ohio-1499, ¶ 55-57.

{¶ 13} Noon died while the case was pending in thecourt of appeals. His daughter, Patricia J.Shondrick-Nau, as executor of Noon’s estate andsuccessor trustee of the John R. Noon Trust, wassubstituted as the appellant. Prior to that time,

3 We analyzed the meaning of “title-transaction saving event” forthe purposes of the Dormant Mineral Act in ChesapeakeExploration, L.L.C. v. Buell, 144 Ohio St.3d 490, 2015-Ohio-4551,45 N.E.3d 185.

App. 7

Shondrick-Nau participated in the proceedings as herfather’s attorney-in-fact.

{¶ 14} We accepted Noon’s discretionary appeal onsix propositions relating to the application of Ohio’sDormant Mineral Act:

(1) The 2006 version of the [DormantMineral Act] is the only version * * * to beapplied after June 30, 2006, the effective date ofsaid statute.

(2) To establish a mineral interest as“deemed abandoned” under the 1989 version ofthe [Dormant Mineral Act], the surface ownermust have taken some action to establishabandonment prior to June 30, 2006. In all caseswhere a surface owner failed to take such action,only the 2006 version of the [Dormant MineralAct] can be used to obtain relief.

(3) To the extent the 1989 version of the[Dormant Mineral Act] remains applicable, the20-year look-back period shall be calculatedstarting on the date a complaint is filed whichfirst raises a claim under the 1989 version * * *.

(4) For purposes of R.C. 5301.56(B)(3), asevered oil and gas mineral interest is the“subject of” any title transaction whichspecifically identifies the recorded documentcreating that interest by volume and pagenumber, regardless of whether the severedmineral interest is actually transferred orreserved.

App. 8

(5) Irrespective of the savings events inR.C. 5301.56(B)(3), the limitations in R.C.5301.49 can separately bar a claim under the[Dormant Mineral Act].

(6) The 2006 version of the [DormantMineral Act] applies retroactively to severedmineral interests created prior to its effectivedate.

140 Ohio St.3d 1414, 2014-Ohio-3785, 15 N.E.3d 883.

Analysis

Whether the original 1989 or amended 2006version of the Dormant Mineral Act applies

{¶ 15} Shondrick-Nau’s first, second, and sixthpropositions can be addressed together because eachasserts that the 2006, not the 1989, version of theDormant Mineral Act applies here. Shondrick-Nau’sprimary argument is that the 2006 version appliesbecause the 1989 version of the Dormant Mineral Actwas ambiguous regarding how it was to function andtherefore should not be interpreted as self-executing.Walker contends that the 1989 version applies becausethat version of the statute made clear that the vestingof the mineral rights in the surface owner occurredautomatically at the expiration of a 20-year periodwithout a saving event because the statute did notrequire that notice be sent to the mineral-rights owneror require that a legal action be filed.

{¶ 16} Corban, __ Ohio St.3d __, 2016-Ohio-5796, __N.E.3d __, resolves this issue. In Corban, we held thatthe 2006 version of the Dormant Mineral Act applies toall claims asserted after 2006 alleging that the rights

App. 9

to oil, gas, and other minerals automatically vested inthe owner of the surface estate prior to the 2006amendments. Id. at ¶ 2.

{¶ 17} Here, Walker acquired the property in 2009subject to prior restrictions. He asserted his claim tothe mineral rights underlying the surface of thatproperty in 2012 with the filing of an “Affidavit ofAbandonment of Mineral Interest” in the countyrecorder’s office, and later that same year with legalaction against Noon. There is no evidence in the recordof action being taken by Walker or his predecessorsprior to the effective date of the 2006 amendments tohave the mineral rights deemed abandoned under the1989 version of the Dormant Mineral Act. Thus,pursuant to Corban, the 2006 version of the act applieshere.

Application of the 2006 Dormant Mineral Act

{¶ 18} In Dodd, we held that “a mineral-interestholder’s claim to preserve filed pursuant to R.C.5301.56(H)(1)(a) is sufficient to preclude the mineralinterests from being deemed abandoned if [the claim topreserve is] filed within 60 days after notice of thesurface owner’s intent to declare those interestsabandoned.” 143 Ohio St.3d 293, 2015-Ohio-2362, 37N.E.3d 147, ¶ 37.

{¶ 19} Here, in response to Walker’s affidavit ofabandonment, Noon timely filed an Affidavit and Claimto Preserve Mineral Interests. As we determined withrespect to the mineral-interest holder’s rights in Dodd,pursuant to R.C. 5301.56(H), a subsection that wasadded as part of the 2006 amendments to the DormantMineral Act, Noon’s claim to preserve was sufficient to

App. 10

prevent the mineral rights from being “deemedabandoned and vested” in the surface owner.

Remaining issues

{¶ 20} Because the 2006 version of the DormantMineral Act applies in this case, we need not addressShondrick-Nau’s third proposition of law, which setsforth the way she believes the look-back period shouldbe calculated under the 1989 version of the DormantMineral Act.

{¶ 21} Similarly, Shondrick-Nau concedes that it isnot necessary to resolve the issues raised in her fourthand fifth propositions of law if we conclude that the1989 version of the Dormant Mineral Act does notapply here. These propositions address whether a deedtransferring the surface estate that specificallyexcludes the previously severed mineral interestconstitutes a title-transaction saving event under the1989 version of the act. If the 1989 version of the actapplied here, we would have to determine whether thestatutory period passed without the occurrence of asaving event described in the 1989 version of R.C.5301.56(B). But whether a saving event occurred is notan issue that needs to be resolved in this case, becauseNoon’s claim to preserve his mineral rights wassufficient under the 2006 version of the act to preventthe mineral rights from being “deemed abandoned andvested” in the owner of the surface estate.

Conclusion

{¶ 22} We hold that pursuant to Corban, __ OhioSt.3d __, 2016-Ohio5796, __ N.E.3d __, the 2006 versionof the Dormant Mineral Act applies in this case. Andpursuant to Dodd, 143 Ohio St.3d 293, 2015-Ohio-2362,

App. 11

37 N.E.3d 147, we hold that Noon’s claim to preserve,which was timely filed with the county recorder’s office,was sufficient to preclude the mineral estate frombeing deemed abandoned and vested in the owner ofthe surface estate. We therefore reverse the judgmentof the court of appeals.

Judgment reversed.

O’DONNELL, LANZINGER, KENNEDY, and FRENCH,JJ., concur.

PFEIFER, J., dissents, with an opinion.

O’NEILL, J., dissents, with an opinion. _________________

PFEIFER, J., dissenting.

{¶ 23} The majority opinion is based on this court’sholding in Corban v. Chesapeake Exploration, L.L.C.,__ Ohio St.3d __, 2016-Ohio-5796, __ N.E.3d __, thatthe 1989 version of Ohio’s Dormant Mineral Act,former R.C. 5301.56, Sub.S.B. No. 223, 142 Ohio Laws,Part I, 981 (“1989 ODMA”) was not self-executing; Idissented from that holding, and I therefore dissentfrom the majority’s holding in this case. I would affirmthe judgment of the court of appeals.

{¶ 24} I would hold that by operation of the 1989ODMA, John Noon’s interest was deemed abandonedand was reunited with the surface interest by March22, 1992; Noon’s interest had not been preserved by asaving event in the 20 years prior to the effective dateof the statute nor in the three-year grace period afterthe effective date of the statute, former R.C.5301.56(B)(2), 142 Ohio Laws, Part I, at 987. The 1970and 1977 deeds that mentioned Noon’s interest—but

App. 12

did not transfer it—did not constitute saving events,because in those deeds, the mineral interest was notthe subject of a title transaction under former R.C.5301.56(B)(1)(c)(i), 142 Ohio Laws, Part I, at 986. Bythe time of the effective date of the 2006 version of R.C.5301.56, there was no mineral interest remaining forNoon to preserve, so his filing of an Affidavit and Claimto Preserve Mineral Interests in 2012 was a vain act.

{¶ 25} But then, this dissent is a vain act. Themultiple questions raised in this appeal about thefunctioning of the 1989 ODMA have been renderedacademic by Corban; those questions arise only if the1989 ODMA is self-executing—that is, if the mineralinterest “deemed abandoned” automatically vested inthe owner of the surface estate in the absence of aqualifying saving event. The plain language of the 1989ODMA indicates that it was self-executing. The threeappellate districts that have considered thequestion—the Seventh District in this case, the FifthDistrict in Wendt v. Dickerson, Fifth Dist. TuscarawasNo. 2014 AP 01 0003, 2014Ohio-4615, and the EleventhDistrict in Thompson v. Custer, 2014-Ohio-5711, 26N.E.3d 278 (11th Dist.)—all concluded that the 1989ODMA was self-executing. But this court in Corbanheld to the contrary. In doing so, Corban has simplifiedthe law. All it took was rewriting it.

_________________

O’NEILL, J., dissenting.

{¶ 26} I joined Justice Pfeifer’s learned concurringand dissenting opinion in Corban v. ChesapeakeExploration, L.L.C., __ Ohio St.3d __, 2016-Ohio-5796,__ N.E.3d __, and I therefore disagree with themajority’s holding in this case that the 2006 version of

App. 13

the Dormant Mineral Act, 2006 Sub.H.B. No. 288,applies. But, unlike Justice Pfeifer, I would hold thatthe 1977 reservation of the mineral interest by deedwas a qualifying title transaction and therefore asaving event under the 1989 version of the OhioDormant Mineral Act, former R.C. 5301.56, Sub.S.B.No. 223, 142 Ohio Laws, Part I, 981. However, I wouldalso hold that the mineral interest reunified with thesurface estate 20 years later, in 1997. Accordingly, bythe time the 2006 version of the Ohio Dormant MineralAct became effective, John Noon had no mineralinterest to preserve. It had been extinguished as amatter of law.

_________________

Cardinal Law Offices and Kenneth Cardinal; andBaker, Dublikar, Beck, Wiley & Mathews and James F.Mathews, for appellee.

Bricker & Eckler, L. L.P., Matthew W. Warnock,Daniel C. Gibson, and Daniel E. Gerken, for appellant.

Michael DeWine, Attorney General, Eric E.Murphy, State Solicitor, and Samuel C. Peterson,Deputy Solicitor, urging affirmance for amicus curiaestate of Ohio.

Jackson Kelly, P.L.L.C., Clay K. Keller, Sandra K.Zerrusen, and J. Alex Quay, urging reversal for amicicuriae Eclipse Resources Corporation and ChesapeakeExploration, L.L.C.

_________________

App. 14

APPENDIX B

[Cite as Walker v. Noon, 2014-Ohio-1499.]

STATE OF OHIO, NOBLE COUNTYIN THE COURT OF APPEALS

SEVENTH DISTRICT

CASE NO. 13 NO 402

[Filed April 3, 2014]_________________________________________JON WALKER, JR., )

)PLAINTIFF-APPELLEE, )

)VS. )

)PATRICIA J. SHONDRICK-NAU, )EXECUTRIX OF THE ESTATE OF JOHN )R. NOON AND SUCCESSOR TRUSTEE )OF THE JOHN R. NOON TRUST, )

)DEFENDANT-APPELLANT. )

_________________________________________ )

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of

Common Pleas of NobleCounty, OhioCase No. 212-0098

JUDGMENT: Affirmed

App. 15

APPEARANCES:For Plaintiff-Appellee Attorney Kenneth Cardinal 758 N. 15th St. Sebring, Ohio 44672

Attorney James F. Mathews400 South Main St.North Canton, Ohio 44720

For Defendant-Appellant Attorney James Hughes, IIIAttorney Matthew WarnockAttorney Daniel Gerken100 South Third St.Columbus, Ohio 43215

JUDGES:

Hon. Gene DonofrioHon. Joseph J. VukovichHon. Cheryl L. Waite

Dated: April 3, 2014

[Cite as Walker v. Noon, 2014-Ohio-1499.]DONOFRIO, J.

OPINION

{¶1} Defendant-appellant, Patricia J. Shondrick-Nau, Executrix of the Estate of John R. Noon andSuccessor Trustee of the John R. Noon Trust, appealsfrom a Noble County Common Pleas Court judgmentgranting summary judgment in favor of plaintiff-appellee, Jon Walker, Jr., on appellee’s claim to quiettitle as to the mineral estate (specifically oil and gasinterests) underlying a tract of land in Noble County.

{¶2} John Noon purchased the disputed property,located in Enoch Township, in 1964. On July 26, 1965,

App. 16

Noon severed the mineral rights and created a separatemineral estate by reserving the mineral rights tohimself when he sold the surface rights on that date.

{¶3} In 1970, the surface rights to the propertywere sold twice. In both of the 1970 conveyances, thedeeds included the mineral rights reservation andreferenced the volume and page number where themineral rights reservation was recorded. In 1977, thesurface rights were sold again. And again the deedincluded the mineral rights reservation and referencedthe volume and page number where the mineral rightsreservation was recorded.

{¶4} Appellee purchased the subject property in2009. The property is described in two deeds. The firsttract of land is 37.042 acres and the second tract is5.186 acres.

{¶5} On December 2, 2011, appellee sent a notice ofabandonment of mineral interest to Noon.

{¶6} On January 10, 2012, Noon filed an affidavitand claim to preserve mineral interest.

{¶7} On April 27, 2012, appellee filed a complaintfor declaratory judgment and to quiet title. Herequested that the trial court rule that he is the lawfulowner of the mineral rights. Appellee asserted that themineral rights merged with the surface estate no laterthan March 22, 1992, by way of the prior version ofR.C. 5301.56 (the Ohio Dormant Mineral Act), whichwas in effect from March 22, 1989, until June 30, 2006.He also claimed Noon abandoned any interest in themineral rights when he failed to preserve them fromexpiring.

App. 17

{¶8} Noon filed a motion for summary judgment. Healleged that the filing of a mineral preservation noticepursuant to R.C. 5301.56(H) preserved the severedmineral interest and R.C. 5301.56(D) indefinitelypreserves a severed mineral interest. On these bases,Noon claimed he was entitled to summary judgment onappellee’s claims.

{¶9} Appellee then filed a cross-motion for summaryjudgment. He asserted that because the transactionsrelied upon by Noon did not represent title transactionsin the mineral estate, those transactions did notoperate as a savings event under R.C. 5301.56.

{¶10} The trial court found that no facts were indispute. The court framed the question before it as, “dothe surface transfers in 1970 and 1977 count as ‘titletransactions’?” The court answered in the negative. Thecourt found that although the transactions were withinthe 20-year period prior to March 22, 1989, they did notaffect an interest in land as contemplated by R.C.5301.56(F). The court further found that any discussionof the current version of R.C. 5301.56, effective June30, 2006, was moot because as of June 30, 2006, anyinterest Noon had in the mineral rights had alreadybeen abandoned. Therefore, the trial court grantedappellee’s motion for summary judgment and deniedNoon’s motion for summary judgment. It went on todeclare that appellee is the true and rightful owner ofthe oil and gas underlying the subject property andthat Noon has no interest in the subject oil and gas.

{¶11} Noon filed a timely notice of appeal on April17, 2013. Noon passed away after the filing of thisappeal. His daughter, Shondrick-Nau, in her capacityas the executrix of Noon’s estate and successor trustee

App. 18

of Noon’s trust, was substituted as the appellant in thiscase.

{¶12} Appellant raises two assignments of error.The assignments of error share a common basis in lawand fact. Appellant then raises three distinct issues forreview. For ease of discussion, we will treat each issuefor review separately.

{¶13} Appellant’s assignments of error state:

TRIAL COURT ERRED IN GRANTINGSUMMARY JUDGMENT FOR PLAINTIFF-APPELLEE.

THE TRIAL COURT ERRED IN NOTGRANTING SUMMARY JUDGMENT INFAVOR OF DEFENDANT-NOON.

{¶14} In reviewing a trial court’s decision on asummary judgment motion, appellate courts apply a denovo standard of review. Cole v. Am. Industries &Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d1179 (7th Dist.1998). Thus, we shall apply the sametest as the trial court in determining whether summaryjudgment was proper. Civ.R. 56(C) provides that thetrial court shall render summary judgment if nogenuine issue of material fact exists and whenconstruing the evidence most strongly in favor of thenonmoving party, reasonable minds can only concludethat the moving party is entitled to judgment as amatter of law. State ex rel. Parsons v. Flemming, 68Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994). A“material fact” depends on the substantive law of theclaim being litigated. Hoyt, Inc. v. Gordon & Assoc.,Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8thDist.1995), citing Anderson v. Liberty Lobby, Inc., 477

App. 19

U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).

{¶15} This case involves the application of thecurrent and prior versions of R.C. 5301.56, known asOhio’s Dormant Mineral Act.

{¶16} The prior version of R.C. 5301.56 was enactedon March 22, 1989. The 1989 version of R.C. 5301.56provided, in pertinent part:

(B)(1) Any mineral interest held by anyperson, other than the owner of the surface ofthe lands subject to the interest, shall be deemedabandoned and vested in the owner of thesurface, if none of the following applies:

* * *

(c) Within the preceding twenty years, one ormore of the following has occurred:

(i) The mineral interest has been the subjectof a title transaction that had been filed orrecorded in the office of the county recorder ofthe county in which the lands are located[.] * * *

(2) A mineral interest shall not be deemedabandoned under division (B)(1) of this sectionbecause none of the circumstances described inthat division apply, until three years from theeffective date of this section.

{¶17} The current version of R.C. 5301.56 becameeffective on June 30, 2006. The most substantialchange to the statute was the addition of the noticerequirements giving the owner of the abandoned

App. 20

mineral interest the opportunity to reclaim his or herinterest. R.C. 5301.56 now provides, in pertinent part:

(B) Any mineral interest held by any person,other than the owner of the surface of the landssubject to the interest, shall be deemedabandoned and vested in the owner of thesurface of the lands subject to the interest if therequirements established in division (E) of thissection are satisfied and none of the followingapplies:

(1) The mineral interest is in coal, or inmining or other rights pertinent to or exercisablein connection with an interest in coal * * *.

(2) The mineral interest is held by the UnitedStates, this state, or any political subdivision,body politic, or agency of the United States orthis state * * * .

(3) Within the twenty years immediatelypreceding the date on which notice is served orpublished under division (E) of this section, oneor more of the following has occurred:

(a) The mineral interest has been the subjectof a title transaction that has been filed orrecorded in the office of the county recorder ofthe county in which the lands are located.

(b) There has been actual production orwithdrawal of minerals by the holder * * *.

(c) The mineral interest has been used inunderground gas storage operations by theholder.

App. 21

(d) A drilling or mining permit has beenissued to the holder, * * *.

(e) A claim to preserve the mineral interesthas been filed in accordance with division (C) ofthis section.

(f) In the case of a separated mineralinterest, a separately listed tax parcel numberhas been created for the mineral interest in thecounty auditor’s tax list and the countytreasurer’s duplicate tax list in the county inwhich the lands are located.

* * *

(E) Before a mineral interest becomes vestedunder division (B) of this section in the owner ofthe surface of the lands subject to the interest,the owner of the surface of the lands subject tothe interest shall do both of the following:

(1) Serve notice by certified mail, returnreceipt requested, to each holder or each holder’ssuccessors or assignees, at the last knownaddress of each, of the owner’s intent to declarethe mineral interest abandoned. If service ofnotice cannot be completed to any holder, theowner shall publish notice of the owner’s intentto declare the mineral interest abandoned atleast once in a newspaper of general circulationin each county in which the land that is subjectto the interest is located. The notice shallcontain all of the information specified indivision (F) of this section.

App. 22

(2) At least thirty, but not later than sixtydays after the date on which the notice requiredunder division (E)(1) of this section is served orpublished, as applicable, file in the office of thecounty recorder of each county in which thesurface of the land that is subject to the interestis located an affidavit of abandonment thatcontains all of the information specified indivision (G) of this section.

{¶18} The definition of a “title transaction,” whichis defined in R.C. 5301.47, did not change between thetwo versions of R.C. 5301.56. A “title transaction” is“any transaction affecting title to any interest in land,including title by will or descent, title by tax deed, or bytrustee’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, ormortgage.” R.C. 5301.47(F).

{¶19} With these statutes in mind, we turn now toappellant’s issues for review.

{¶20} Appellant’s first issue for review asserts:

A title transaction that transfers theownership of the surface rights and clearlyreferences and reserves the mineral interestpreserves a mineral interest under R.C.5301.56(C).

{¶21} Appellant contends here that the mineralrights at issue were the subject of a title transactionduring the applicable 20-year look-back period.Because the mineral rights were the subject of a titletransfer during the 20-year period that was recorded inthe county recorder’s office, appellant claims the rights

App. 23

were not subject to forfeiture. Appellant points out thatthis argument is valid under both the prior and thecurrent versions of R.C. 5301.56.

{¶22} Appellant argues that in reaching itsdecision, the trial court effectively added the word“only” to the beginning of R.C. 5301.56(B)(3)(a) infinding the interest to be conveyed must be the mineralinterest itself and nothing else. Appellant states thereis no dispute that there was a clear exception of themineral interest in both the 1970 deed and the 1977deed. She points out that all of the deeds recite Noon’smineral interest reservation, state the volume and pagenumbers on which the mineral estate reservationappears in the public record, and refer to Noon byname.

{¶23} Appellant goes on to argue that the “titletransaction” savings event must be analyzed in thebroader context of Ohio’s Marketable Title Act (R.C.5301.47 to R.C. 5301.56). She notes that a “mineralinterest” is “a fee interest in at least one mineralregardless of how the interest is created and of theform of the interest.” R.C. 5301.56(A)(3). She furthernotes that a “mineral” includes oil and gas. R.C.5301.56(A)(4). She then points to the definition of “titletransaction,” which includes “any transaction affectingtitle to any interest in land.” R.C. 5301.47(F). Appellantargues that when these definitions are read together,it becomes clear that the savings event occurs when themineral interest has been the subject of any titletransaction. She contends there is no requirement thatthe mineral interest is actually transferred.

{¶24} Appellant also contends that the statute’slegislative history supports her interpretation.

App. 24

Appellant argues the Legislature’s amendment to thelanguage of the savings event from situations wherethe “interest has been conveyed” to situations wherethe “mineral interest had been the subject of a titletransaction” evidences the Legislature’s deliberatedecision to eliminate the requirement that the mineralinterest itself be conveyed or transferred in order toqualify as a savings event.

{¶25} In Dodd v. Croskey, 7th Dist. No. 12 HA 6,2013-Ohio-4257 (discretionary appeal accepted by OhioSupreme Court on a different issue, cross-appeal onthis issue not accepted, 2013-1730), we examinedwhether an oil and gas interest was “the subject of” atitle transaction. In 2009, when the appellants acquiredthe surface rights to the disputed property, the deedthat conveyed the surface rights included a reservationof the oil and gas interest to the Porters, whichincluded the date it had been filed (May 27, 1947) andthe volume and page numbers where it could be foundin the Recorder’s Office. The trial court found that R.C.5301.56(B)(3)(a) applied. It concluded that the mineralinterest was the “subject of” the title transaction andthat it had been filed within 20 years immediatelypreceding the publishing of notice under R.C.5301.56(E).

{¶26} On appeal, we noted that the issue to bedecided was whether the oil and gas interest was the“subject of” the title transaction. Id. at ¶41. We notedthat the 2009 deed conveying the surface rights was a“title transaction” as defined by R.C. 5301.47(F). Id. at¶43. We also noted that other than a Fifth Districtcase, which we found unhelpful, there was no case lawin Ohio discussing what “subject of a title transaction”

App. 25

means. Id. at ¶48. And we pointed out that “subject of”is not defined in the statute. Id. Thus, we looked to thephrase’s ordinary meaning and construed it accordingto common usage. Id. We explained:

The common definition of the word “subject”is topic of interest, primary theme or basis foraction. Webster’s II New Riverside Dictionary11553 (1984). Under this definition the mineralinterests are not the “subject of” the titletransaction. Here, the primary purpose of thetitle transaction is the sale of surface rights.While the deed does mention the oil and gasreservations, the deed does not transfer thoserights. In order for the mineral interest to be the“subject of” the title transaction the grantormust be conveying that interest or retaining thatinterest. Here, the mineral interest was notbeing conveyed or retained by Coffelt, the partythat sold the property to appellants.

Therefore, we disagree with the trial court’sconclusion that oil and gas interests were the“subject of” the 2009 title transaction. Insteadwe specifically find that they were not the“subject of” the 2009 title transaction.

Id. at ¶¶48-49.

{¶27} Applying this court’s reasoning, that in orderfor the mineral interest to be the “subject of” the titletransaction the grantor must be conveying or retainingthat interest, to the case at bar leads to the conclusionthat the mere mention of the mineral interestreservation in the 1970 and 1977 deeds did not makethe mineral interest “the subject of” the title

App. 26

transactions. Instead, “the subject of” those titletransactions was the conveyance of the surface estate.Thus, the 1970 and 1977 deeds were not savings eventsunder either the 1989 version or the current version ofR.C. 5301.56.

{¶28} Accordingly, appellant’s first issue for reviewis without merit.

{¶29} Appellant’s second issue for review asserts:

The trial court erred in applying the 1989version of R.C. 5301.56 and not the currentversion of the statute.

{¶30} In this issue for review, appellant contendsthe trial court incorrectly applied the 1989 version ofR.C. 5301.56 instead of the 2006 version.

{¶31} Firstly, appellant points to the general ruleby the United States Supreme Court that a courtshould apply the law in effect at the time it renders itsdecision, even when that law was enacted after theevents that gave rise to the lawsuit. Citing, Landgrafv. USI Film Products, 511 U.S. 244, 273, 114 S.Ct. 1483(1994). Appellant points out that neither appellee norhis predecessors in interest sought to quiet title to themineral rights between 1989 and 2006, when the 1989version of the statute was in effect. When thecomplaint was filed in this case, appellant points out,the 2006 version of the statute had been in effect forapproximately six years.

{¶32} Secondly, appellant asserts the trial courtshould have applied the 2006 version of the statutebecause it was the law in effect during the events thatgave rise to this suit. She points out that appellee did

App. 27

not purchase the disputed property until 2009, threeyears after the 2006 version of the statute took effect.Therefore, appellant notes, appellee did not own thesurface rights during the time the 1989 version of thestatute was in effect.

{¶33} Thirdly, appellant argues that she mustprevail under the 2006 version of the statute becauseNoon filed a timely preservation of mineral interest.She points out that R.C. 5301.56(E) now requires asurface owner to serve by certified mail to each holderof the mineral rights the surface owner’s intent todeclare the mineral interest abandoned. She furthernotes the statute then provides that the owner of themineral interest can file a claim to preserve themineral interests within 60 days after the notice.

{¶34} Appellant asserts that appellee sent hisnotice of abandonment of mineral interest onNovember 27, 2011. Appellant states that Noon thenfiled a preservation of mineral interest on January 10,2012, meeting the statutory requirements andpreventing the interest from being divested.

{¶35} No Ohio appellate court or the Ohio SupremeCourt has yet to address the issue of when to apply the1989 version of R.C. 5301.56 and when to apply the2006 version.

{¶36} The Ohio Revised Code offers some generalguidance in examining this issue. “A statute ispresumed to be prospective in its operation unlessexpressly made retrospective.” R.C. 1.48. Theamendment or repeal of a statute does not affect theprior operation of the statute or affect “any validation,cure, right, privilege, obligation, or liability previously

App. 28

acquired, accrued, accorded, or incurred thereunder.”R.C. 1.58(A)(1)(2).

{¶37} There is no language in the 2006 version ofR.C. 5301.56 to suggest that it is to be appliedretroactively. Thus, it is only to apply prospectively.Additionally, although R.C. 5301.56 was amended in2006, this amendment would not have affected any“validation, cure, right, privilege, obligation, or liabilitypreviously acquired.”

{¶38} Under the terms of the 1989 version of R.C.5301.56, any mineral interest held by anyone otherthan the surface owner “shall be deemed abandonedand vested” in the surface owner if none of the statedcircumstances applied. Former R.C. 5301.56(B)(1). Thestated circumstances were: (1) the mineral interest wasin coal; (2) the mineral interest was held by thegovernment; and (3) within the preceding 20 years, oneor more of the stated events occurred, which includedthat the mineral interest has been the subject of a titletransaction. Former R.C. 5301.56(B)(1). The 1989version became effective on March 22, 1989. It furtherprovided that a mineral interest would not be deemedabandoned under division (B)(1) because none of thecircumstances described in that division applied, untilthree years from the effective date of this section.Former R.C. 5301.56(B)(2). Thus, it provided a three-year grace period until March 22, 1992.

{¶39} Given the effective dates of the 1989 versionof R.C. 5301.56, on March 22, 1992, Noon’s mineralinterest was “deemed abandoned and vested” in thesurface owner at the time. As discussed in appellant’sfirst issue for review, Noon’s mineral interest was notthe subject of any title transactions that would trigger

App. 29

the title transaction event. And appellant has notalleged any other savings events.

{¶40} The Ohio Supreme Court explained what itmeans for someone to have a “vested” interest insomething in State ex rel. Jordan v. Indus. Comm., 120Ohio St.3d 412, 2008-Ohio-6137, 900 N.E.2d 150, ¶9:

A “vested right” can “be created by commonlaw or statute and is generally understood to bethe power to lawfully do certain actions orpossess certain things; in essence, it is aproperty right.” Washington Cty. TaxpayersAssn. v. Peppel (1992), 78 Ohio App.3d 146, 155,604 N.E.2d 181. It has been described as a right“which it is proper for the state to recognize andprotect, and which an individual cannot bedeprived of arbitrarily without injustice.” Statev. Muqdady (2000), 110 Ohio Misc.2d 51, 55, 744N.E.2d 278. A vested right is one that “ ‘socompletely and definitely belongs to a personthat it cannot be impaired or taken awaywithout the person’s consent.’” Harden v. OhioAtty. Gen., 101 Ohio St.3d 137, 2004-Ohio-382,802 N.E.2d 1112, ¶9, quoting Black’s LawDictionary (7th Ed.1999) 1324. A right alsocannot be characterized as vested “unless itconstitutes more than a ‘mere expectation orinterest based upon an anticipated continuanceof existing laws.’” Roberts v. Treasurer (2001),147 Ohio App.3d 403, 411, 770 N.E.2d 1085,quoting In re Emery (1978), 59 Ohio App.2d 7,11, 13 O.O.3d 44, 391 N.E.2d 746.

{¶41} When the 2006 version of R.C. 5301.56 wasenacted, Noon’s mineral interest had already been

App. 30

abandoned and the mineral interest had been vestedwith the surface owner for 14 years. Once the mineralinterest vested in the surface owner, it was reunitedwith the surface estate. Noon did not have any mineralinterest in the subject property after March 22, 1992,because on that date the interest automatically vestedin the surface owner by operation of the statute. Andonce the mineral interest vested in the surface owner,it “completely and definitely” belonged to the surfaceowner.

{¶42} Numerous trial courts in our District havelikewise found that the 1989 version of R.C. 5301.56applies to similar actions. See, Walker v. Noon, NobleCounty Common Pleas No. 2012-0098; Marty v. Dennis,Monroe County Common Pleas No. 2012-230; Tribbettv. Shepherd, Belmont County Common Pleas No. 12 CV180.

{¶43} One trial court in our District has found tothe contrary. Dahlgren v. Brown Farm, Carroll County2013 CVH 274455. The trial court in Dahlgren found nomerit to the “automatic vesting” theory. Instead, itclassified the mineral rights under the 1989 version as“inchoate” rights. By definition, “inchoate” means “notcompletely formed or developed yet.” Merriam-WebsterOnline Dictionary. This definition is in direct contrastto the definition of “vested” which means thatsomething “so completely and definitely belongs to aperson that it cannot be impaired or taken awaywithout the person’s consent.” Jordan v. Indus. Comm.,120 Ohio St.3d at ¶9, quoting Harden, 101 Ohio St.3dat ¶9. Thus, the Dahlgren court’s characterization ofthe mineral rights under the 1989 version is contrary

App. 31

to the statute itself, which states that the mineralrights are “vested.”

{¶44} Additionally, trial courts in the Fifth Districthave likewise found that the 1989 version of the statuteapplies. See, Wiseman v. Potts, Morgan CountyCommon Pleas No. 2008CV145 (where the partiesagreed the 1989 version applied notwithstanding thefact it was filed after the 2006 version becameeffective); Wendt v. Dickerson, Tuscarawas CountyCommon Pleas No. 2012 CV 02 0135 (prior version ofthe statute applied because the landowner’s rights hadvested and could not be taken away).

{¶45} Further support for this finding is found inCadles of Grassy Meadows, II, LLC v. Kistner, 6th Dist.No. L-09-1267, 2010-Ohio-2251. In Kistner, a judgmentwas entered in 1987 against the Kistners. Thejudgment was not fully satisfied and, pursuant tostatute, the judgment became dormant on March 12,1992. At the time the judgment became dormant, theprior version of R.C. 2325.18 (effective October 1, 1953,to June 1, 2004) was in effect and provided for a 21-year statute of limitations for revivor proceedings. InAugust 2009, Cadles moved the trial court to revive thejudgment. The Kistners opposed the revivor arguingCadles had abandoned its rights and because thestatute of limitations barred revival. The trial courtfound that revival of the judgment was barred becausethe current version of R.C. 2325.18(A) provided for a10-year statute of limitations for revival and more than17 years had passed since the judgment becamedormant. Cadles appealed.

{¶46} On appeal, Cadles argued the trial courterred in applying the current version of R.C. 2325.18

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retroactively. It claimed the right to sue became avested, substantial right at the time the judgmentbecame dormant.

{¶47} The Sixth District examined an 1893 OhioSupreme Court case dealing with the same issue. Itnoted that in Bartol v. Eckert, 50 Ohio St. 31, 33 N.E.294 (1893), the Court held that without an expressionof retroactivity, and based on the rule thatamendments do not affect causes already existing, theamended statute was not applicable and the earlierstatute applied. Id. at ¶14. It also stated that theBartol Court considered the constitutionality ofretroactively applying the statute and held that novested right had been taken away or impaired by thestatute. Id.

{¶48} The Sixth District noted that whendetermining whether a statute is to be appliedretroactively the court must conduct a two-partinquiry. Id. at ¶15. First, there must be a clear, expresslegislative intent to apply the statute retroactively. Id.Then, if there is such an intent, the statute must affectonly remedial, not substantive, rights or it will befound to violate Section 28, Article II of the OhioConstitution. Id., citing State ex rel. Romans v. ElderBeerman Stores Corp., 100 Ohio St.3d 165, 2003-Ohio-5363, 797 N.E.2d 82, ¶11.

{¶49} The court went on to point out that thecurrent version of R.C. 2325.18 did not clearly providefor retroactive application. Id. at ¶17. It found,therefore, the statute was not intended to apply todormant judgments that existed prior to theamendment of the statute. Id. Consequently, the courtfound that the prior version of the statute, which

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provided for a 21-year statute of limitations, controlled.Id.

{¶50} Although dealing with the application of adifferent statute, Kistner is helpful in that it found thatthe prior version of the statute applied, which was ineffect at the time the judgment became dormant, asopposed to the current version of the statute, whichwas in effect when the revival claim was filed. AndKistner held that because the current version of thestatute did not specifically provide for retroactiveapplication, it did not apply to past judgments.

{¶51} Similarly, in the present case, the 2006version of R.C. 5301.56 does not specifically provide forretroactive application. Thus, the 1989 version, whichwas in effect at the relevant time to render the mineralinterest vested in the surface owner, controls here.

{¶52} Accordingly, appellant’s second issue forreview is without merit.

{¶53} Appellant’s third issue for review asserts:

As applied by the trial court, the 1989version of the Dormant Minerals Act violates theOhio Constitution’s proscription on retroactivelegislation.

{¶54} Appellant argues that the retroactiveapplication of the 1989 version of the statute in thiscase is unconstitutional. She asserts that any relianceon Texaco v. Short, 454 U.S. 516, 102 S.Ct. 781 (1982),is misplaced. In Texaco, the United States SupremeCourt upheld the constitutionality of Indiana’sDormant Mineral Interests Act. And Noon contends theapplication of the 1989 version of the statute violates

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Article II, Section 28 of the Ohio Constitution, whichprohibits the General Assembly from passingretroactive laws.

{¶55} Noon failed to raise these constitutionalarguments in his complaint or in his motion forsummary judgment in the trial court. In fact, Nooneven argued in his summary judgment motion thatunder the 1989 version of R.C. 5301.56, his mineralrights were preserved by three title transactions.

{¶56} The Ohio Supreme Court has held that“[f]ailure to raise at the trial court level the issue of theconstitutionality of a statute or its application, whichissue is apparent at the time of trial, constitutes awaiver of such issue.” State v. Awan, 22 Ohio St.3d 120,489 N.E.2d 277 (1986), syllabus. However, the OhioSupreme Court has also held that the waiver doctrineannounced in Awan is discretionary. In re M.D., 38Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. “Evenwhere waiver is clear, [a reviewing court may] considerconstitutional challenges to the application of statutesin specific cases of plain error or where the rights andinterests involved may warrant it.” Id.

{¶57} But recognizing plain error in a civil caseoccurs only in extremely rare situations “involvingexceptional circumstances” where the error “seriouslyaffects the basic fairness, integrity, or public reputationof the judicial process, thereby challenging thelegitimacy of the underlying judicial process itself.”Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d1099 (1997), syllabus. In this case, we cannot concludethat the trial court committed plain error by failing toconsider the constitutionality of the 1989 version ofR.C. 5301.56 when neither party raised this argument.

App. 35

Not only did neither party raise this argument, butboth parties argued how they would prevail under the1989 version. Thus, we need not address appellant’sconstitutional argument.

{¶58} Accordingly, appellant’s third issue for reviewis without merit.

{¶59} Based on the analysis of appellant’s issues forreview, both of her assignments of error are withoutmerit. The trial court properly granted summaryjudgment in appellee’s favor and denied appellant’smotion for summary judgment.

{¶60} For the reasons stated above, the trial court’sjudgment is hereby affirmed.

Vukovich, J., concurs.

Waite, J., concurs.

App. 36

APPENDIX C

IN THE COURT OF COMMON PLEASNOBLE, OHIO

CASE NO. 212-0098

[Filed March 20, 2013]________________________JON D. WALKER, JR. )

Plaintiff ))

vs )JOHN R. NOON )

Defendant )_______________________ )

JOURNAL ENTRY

This matter is before the Court upon cross motionsfor summary judgment. The issue is ownership of oiland gas interests.

The facts are not in dispute. Defendant, the ownerof the fee, conveyed the surface and reserved the oiland gas (plus other minerals) by deed recorded July 27,1965. Subsequent deeds in 1970 and 1977 conveyed thesurface, specifically noting that the oil and gas hadpreviously been reserved. All other surface transferspost date March 22, 1992. There have been nosubsequent conveyances of the oil and gas by theDefendant. No claim to preserve a mineral interest wasfiled before March 22, 1992. Plaintiff claims his title byvirtue of Fiduciary Deed recorded May 14, 2009.

App. 37

Summary judgment is governed by Rule 56.

Ohio Revised Code Section 5301. 56 effective March22, 1989, provides in pertinent part:

•••

(B)(1) Any mineral interest held by an person,other than the owner of the surface of the landssubject to the interest, shall be deemedabandoned and vested in the owner of thesurface, if none of the following applies .

•••

(c) Within the preceding twenty years, one ormore of the following has occurred:

(I) The mineral interest has been the subject ofa title transaction that has been filed orrecorded in the office of the county recorder ofthe county in which the lands are located:

•••

(2) A mineral interest shall not be deemedabandoned under division (B)(1) of thissection because none of the circumstancesdescribed in that division apply, until threeyears from the effective date of this section.

(C)(1) A claim to preserve a mineral interestfrom being deemed abandoned under division(B)(1) of this section may be filed for record byits holder. Subject to division (C)(3) of thissection, the claim shall be filed and recorded inaccordance with sections 317.18 to 317.201 and

App. 38

5301.52 of the Revised Code, and shall consist ofa notice that does all of the following:

(a) States the nature of the mineral interestclaimed and any recording information uponwhich the claim is based;

(b) Otherwise complies with section 5301.52 ofthe Revised Code;

(c) States that the holder does not intend toabandon, but instead to preserve, his rightsin the mineral interest.

Revised Code Section 5301.47(F) provides:

(F) “Title transaction” means any transactionaffecting title to any interest in land, includingtitle by will or descent, title by tax deed, or bytrustee’s, assignee’s, guardian’s, executor’s,administrator’s, or sheriff’s deed, or decree ofany court, as well as warranty deed, quit cla imdeed, or mortgage.

The present case rises or falls based on theinterpretation of R.C. Section 5301.56(B)(1)(C)(i) Noother subparagraphs of R.C. Section 5301.56(B)(i) areapplicable.

The Question becomes, do the surface transfers in1970 and 1977 count as “title transactions”? The Courtbelieves the answer to be no. They would be within the20 year period prior to March 22, 1989. However, to be“title transactions”, they would need to affect aninterest in the land (Sec. 5301.47(F)), and for purposesof this case that interest is the mineral interest (Sec.5301.56(B)(1)(c)(i)). While the surface transfers

App. 39

reference the mineral reservation, those transfers donot affect the mineral interest. See, Wiseman v. Potts,Morgan County C. P. Case No. 08 CV 0145 (June 29,2010). The Court is cited to Riddell v. Layman, 5th Dist.No. 94 CA 114, 1995 WL 498812 for a differentinterpretation. But a close reading of that case revealsthat the “title transaction” in question was the originaldeed wherein the fee was split, transferring part to thegrantee but reserving 49% of the oil and gas to theGrantors. Clearly in that case title to the mineralinterest was affected by that “title transaction”.

Applying the Statutes and Case Law to theundisputed facts, the Court finds that Plaintiff isentitled to Summary Judgment and the Defendant isnot.

Any discussion of R.C. 5301.56, effective June 30,2006 is moot, because as of June 30, 2006, any interestof Defendant in the oil and gas had been abandoned.See Wendt v. Dickerson, Tuscarawas County C.P. CaseNo. 2012 CV 020135, 02/21/2013.

The motion of Plaintiff for summary judgment isgranted. Defendant’s request for summary judgment isoverruled.

It is ordered, and the Court declares that:

(1) Plaintiff is the true and rightful owner of the oiland gas underlying the subject real estate;

(2) The Defendant has no interest in the subject oiland gas, no oil and gas reservation, and no oil and gasrights under the subject real estate;

App. 40

(3) Title to the oil and gas underlying the subjectreal estate is quieted in favor of the Plaintiff; and,

(4) Counsel for Plaintiff shall provide the Court witha journal entry with the legal description of the subjectproperty quieted, which is sufficient for recording inthe office of the Noble County Recorder.

(5) Costs assessed to the Defendant.

The Court finds there is no just reason for delay.

/s/________________________ JOHN W. NAU, JUDGE

FINAL APPEALABLE ORDERCopy to be sent, per civil Rule 5(B),to all parties not in default

App. 41

APPENDIX D

U.S. Const. Art. I, § 10

Article I

Sec. 10 Powers denied states--Treaties--Money--Ex postfacto laws--Obligation of contracts.

No State shall enter into any Treaty, Alliance, orConfederation; grant Letters of Marque and Reprisal;coin Money; emit Bills of Credit; make any Thing butgold and silver Coin a Tender in Payment of Debts;pass any Bill of Attainder, ex post facto Law, or Lawimpairing the Obligation of Contracts, or grant anyTitle of Nobility.

U.S. Const. amend. XIV, § 1

Fourteenth Amendment

Sec. 1. [Citizens of the United States.]

All persons born or naturalized in the United States,and subject to the jurisdiction thereof, are citizens ofthe United States and of the State wherein they reside.No State shall make or enforce any law which shallabridge the privileges or immunities of citizens of theUnited States; nor shall any State deprive any personof life, liberty, or property, without due process of law;nor deny to any person within its jurisdiction the equalprotection of the laws.

App. 42

OH Const. Art. II, § 28

Article II

§ 28 Retroactive laws.

The general assembly shall have no power to passretroactive laws, or laws impairing the obligation ofcontracts; but may, by general laws, authorize courts tocarry into effect, upon such terms as shall be just andequitable, the manifest intention of parties, andofficers, by curing omissions, defects, and errors, ininstruments and proceedings, arising out of their wantof conformity with the laws of this state.

App. 43

O.R.C. § 1.58

Ohio Revised Code

§ 1.58 Effect of reenactment, amendment, or repeal.

(A) The reenactment, amendment, or repeal of astatute does not, except as provided in division (B) ofthis section:

(1) Affect the prior operation of the statute or any prioraction taken thereunder;

(2) Affect any validation, cure, right, privilege,obligation, or liability previously acquired, accrued,accorded, or incurred thereunder;

(3) Affect any violation thereof or penalty, forfeiture, orpunishment incurred in respect thereto, prior to theamendment or repeal;

(4) Affect any investigation, proceeding, or remedy inrespect of any such privilege, obligation, liability,penalty, forfeiture, or punishment; and theinvestigation, proceeding, or remedy may be instituted,continued, or enforced, and the penalty, forfeiture, orpunishment imposed, as if the statute had not beenrepealed or amended.

(B) If the penalty, forfeiture, or punishment for anyoffense is reduced by a reenactment or amendment ofa statute, the penalty, forfeiture, or punishment, if notalready imposed, shall be imposed according to thestatute as amended.

App. 44

O.R.C. § 5301.562006 Version

5301.56 Mineral interests - vesting in surface owner.

(A) As used in this section:

(1) “Holder” means the record holder of a mineralinterest, and any person who derives the person’srights from, or has a common source with, the recordholder and whose claim does not indicate, expressly orby clear implication, that it is adverse to the interest ofthe record holder.

(2) “Drilling or mining permit” means a permit issuedunder Chapter 1509., 1513., or 1514. of the RevisedCode to the holder to drill an oil or gas well or to mineother minerals.

(3) “Mineral interest” means a fee interest in at leastone mineral regardless of how the interest is createdand of the form of the interest, which may be absoluteor fractional or divided or undivided.

(4) “Mineral” means gas, oil, coal, coalbed methane gas,other gaseous, liquid, and solid hydrocarbons, sand,gravel, clay, shale, gypsum, halite, limestone, dolomite,sandstone, other stone, metalliferous ornonmetalliferous ore, or another material or substanceof commercial value that is excavated in a solid statefrom natural deposits on or in the earth.

(5) “Owner of the surface of the lands subject to theinterest” includes the owner’s successors and assignees.

(B) Any mineral interest held by any person, other thanthe owner of the surface of the lands subject to theinterest, shall be deemed abandoned and vested in the

App. 45

owner of the surface of the lands subject to the interestif the requirements established in division (E) of thissection are satisfied and none of the following applies:

(1) The mineral interest is in coal, or in mining or otherrights pertinent to or exercisable in connection with aninterest in coal, as described in division (E) of section5301.53 of the Revised Code. However, if a mineralinterest includes both coal and other minerals that arenot coal, the mineral interests that are not in coal maybe deemed abandoned and vest in the owner of thesurface of the lands subject to the interest.

(2) The mineral interest is held by the United States,this state, or any political subdivision, body politic, oragency of the United States or this state, as describedin division (G) of section 5301.53 of the Revised Code.

(3) Within the twenty years immediately preceding thedate on which notice is served or published underdivision (E) of this section, one or more of the followinghas occurred:

(a) The mineral interest has been the subject of a titletransaction that has been filed or recorded in the officeof the county recorder of the county in which the landsare located.

(b) There has been actual production or withdrawal ofminerals by the holder from the lands, from landscovered by a lease to which the mineral interest issubject, from a mine a portion of which is locatedbeneath the lands, or, in the case of oil or gas, fromlands pooled, unitized, or included in unit operations,under sections 1509.26 to 1509.28 of the Revised Code,in which the mineral interest is participating, providedthat the instrument or order creating or providing for

App. 46

the pooling or unitization of oil or gas interests hasbeen filed or recorded in the office of the countyrecorder of the county in which the lands that aresubject to the pooling or unitization are located.

(c) The mineral interest has been used in undergroundgas storage operations by the holder.

(d) A drilling or mining permit has been issued to theholder, provided that an affidavit that states the nameof the permit holder, the permit number, the type ofpermit, and a legal description of the lands affected bythe permit has been filed or recorded, in accordancewith section 5301.252 of the Revised Code, in the officeof the county recorder of the county in which the landsare located.

(e) A claim to preserve the mineral interest has beenfiled in accordance with division (C) of this section.

(f) In the case of a separated mineral interest, aseparately listed tax parcel number has been createdfor the mineral interest in the county auditor’s tax listand the county treasurer’s duplicate tax list in thecounty in which the lands are located.

(C)(1) A claim to preserve a mineral interest from beingdeemed abandoned under division (B) of this sectionmay be filed for record by its holder. Subject to division(C)(3) of this section, the claim shall be filed andrecorded in accordance with division (H) of this sectionand sections 317.18 to 317.201 and 5301.52 of theRevised Code, and shall consist of a notice that does allof the following:

App. 47

(a) States the nature of the mineral interest claimedand any recording information upon which the claim isbased;

(b) Otherwise complies with section 5301.52 of theRevised Code;

(c) States that the holder does not intend to abandon,but instead to preserve, the holder’s rights in themineral interest.

(2) A claim that complies with division (C)(1) of thissection or, if applicable, divisions (C)(1) and (3) of thissection preserves the rights of all holders of a mineralinterest in the same lands.

(3) Any holder of an interest for use in underground gasstorage operations may preserve the holder’s interest,and those of any lessor of the interest, by a singleclaim, that defines the boundaries of the storage fieldor pool and its formations, without describing eachseparate interest claimed. The claim is prima-facieevidence of the use of each separate interest inunderground gas storage operations.

(D)(1) A mineral interest may be preserved indefinitelyfrom being deemed abandoned under division (B) ofthis section by the occurrence of any of thecircumstances described in division (B)(3) of thissection, including, but not limited to, successive filingsof claims to preserve mineral interests under division(C) of this section.

(2) The filing of a claim to preserve a mineral interestunder division (C) of this section does not affect theright of a lessor of an oil or gas lease to obtain itsforfeiture under section 5301.332 of the Revised Code.

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(E) Before a mineral interest becomes vested underdivision (B) of this section in the owner of the surfaceof the lands subject to the interest, the owner of thesurface of the lands subject to the interest shall do bothof the following:

(1) Serve notice by certified mail, return receiptrequested, to each holder or each holder’s successors orassignees, at the last known address of each, of theowner’s intent to declare the mineral interestabandoned. If service of notice cannot be completed toany holder, the owner shall publish notice of theowner’s intent to declare the mineral interestabandoned at least once in a newspaper of generalcirculation in each county in which the land that issubject to the interest is located. The notice shallcontain all of the information specified in division (F)of this section.

(2) At least thirty, but not later than sixty days afterthe date on which the notice required under division(E)(1) of this section is served or published, asapplicable, file in the office of the county recorder ofeach county in which the surface of the land that issubject to the interest is located an affidavit ofabandonment that contains all of the informationspecified in division (G) of this section.

(F) The notice required under division (E)(1) of thissection shall contain all of the following:

(1) The name of each holder and the holder’s successorsand assignees, as applicable;

(2) A description of the surface of the land that issubject to the mineral interest. The description shallinclude the volume and page number of the recorded

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deed or other recorded instrument under which theowner of the surface of the lands claims title orotherwise satisfies the requirements established indivision (A)(3) of section 5301.52 of the Revised Code.

(3) A description of the mineral interest to beabandoned. The description shall include the volumeand page number of the recorded instrument on whichthe mineral interest is based.

(4) A statement attesting that nothing specified indivision (B)(3) of this section has occurred within thetwenty years immediately preceding the date on whichnotice is served or published under division (E) of thissection;

(5) A statement of the intent of the owner of the surfaceof the lands subject to the mineral interest to file in theoffice of the county recorder an affidavit ofabandonment at least thirty, but not later than sixtydays after the date on which notice is served orpublished, as applicable.

(G) An affidavit of abandonment shall contain all of thefollowing:

(1) A statement that the person filing the affidavit isthe owner of the surface of the lands subject to theinterest;

(2) The volume and page number of the recordedinstrument on which the mineral interest is based;

(3) A statement that the mineral interest has beenabandoned pursuant to division (B) of this section;

(4) A recitation of the facts constituting theabandonment;

App. 50

(5) A statement that notice was served on each holderor each holder’s successors or assignees or published inaccordance with division (E) of this section.

(H)(1) If a holder or a holder’s successors or assigneesclaim that the mineral interest that is the subject of anotice under division (E) of this section has not beenabandoned, the holder or the holder’s successors orassignees, not later than sixty days after the date onwhich the notice was served or published, asapplicable, shall file in the office of the county recorderof each county where the land that is subject to themineral interest is located one of the following:

(a) A claim to preserve the mineral interest inaccordance with division (C) of this section;

(b) An affidavit that identifies an event described indivision (B)(3) of this section that has occurred withinthe twenty years immediately preceding the date onwhich the notice was served or published underdivision (E) of this section.

The holder or the holder’s successors or assignees shallnotify the person who served or published the noticeunder division (E) of this section of the filing under thisdivision.

(2) If a holder or a holder’s successors or assignees whoclaim that the mineral interest that is the subject of anotice under division (E) of this section has not beenabandoned fails to file a claim to preserve the mineralinterest, files such a claim more than sixty days afterthe date on which the notice was served or publishedunder division (E) of this section, fails to file anaffidavit that identifies an event described in division(B)(3) of this section that has occurred within the

App. 51

twenty years immediately preceding the date on whichthe notice was served or published under division (E) ofthis section, or files such an affidavit more than sixtydays after the date on which the notice was served orpublished under that division, the owner of the surfaceof the lands subject to the interest who is seeking tohave the interest deemed abandoned and vested in theowner shall cause the county recorder of eachapplicable county to memorialize the record on whichthe severed mineral interest is based with thefollowing: “This mineral interest abandoned pursuantto affidavit of abandonment recorded in volume. . . .,page. . . .”

Immediately after the county recorder memorializesthe record, the mineral interest shall vest in the ownerof the surface of the lands formerly subject to theinterest, and the record of the mineral interest shallcease to be notice to the public of the existence of themineral interest or of any rights under it. In addition,the record shall not be received as evidence in anycourt in this state on behalf of the former holder or theformer holder’s successors or assignees against theowner of the surface of the lands formerly subject to theinterest. However, the abandonment and vesting of amineral interest pursuant to divisions (E) to (I) of thissection only shall be effective as to the property of theowner that filed the affidavit of abandonment underdivision (E) of this section.

(I) For purposes of a recording under this section, acounty recorder shall charge the fee established undersection 317.32 of the Revised Code.

A county recorder who uses microfilm as providedunder section 9.01 of the Revised Code may require the

App. 52

memorial “This mineral interest abandoned pursuantto affidavit of abandonment recorded in volume. . . .,page. . . .” to be located on the affidavit of abandonmentinstead of the record on which the severed mineralinterest is based, and the affidavit may be recordedunder section 317.08 of the Revised Code.

Effective Date: 03-22-1989; 06-30-2006

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O.R.C. § 5301.561989 Version

TERMINATION OF DORMANT MINERALINTERESTS

5301.56 Abandonment and preservation of mineralinterests

(A) As used in this section:

(1) “Holder” means the record holder of a mineralinterest, and any person who derives his rights from, orhas a common source with, the record holder andwhose claim does not indicate, expressly or by clearimplication, that it is adverse to the interest of therecord holder.

(2) “Drilling or mining permit” means a permit issuedunder Chapter 1509., 1513., or 1514. of the RevisedCode to the holder to drill an oil or gas well or to mineother minerals.

(B)(1) Any mineral interest held by any person, otherthan the owner of the surface of the lands subject to theinterest, shall be deemed abandoned and vested in theowner of the surface, if none of the following applies:

(a) The mineral interest is in coal, or in mining or otherrights pertinent to or exercisable in connection with aninterest in coal, as described in division (E) of section5301.53 of the Revised Code;

(b) The mineral interest is held by the United States,this state, or any political subdivision, body politic, oragency of the United States or this state, as describedin division (G) of section 5301.53 of the Revised Code;

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(c) Within the preceding twenty years, one or more ofthe· following has occurred:

(i) The mineral interest has been the subject of a titletransaction that has been filed or recorded in the officeof the county recorder of the county in which the landsare located;

(ii) There has been actual production or withdrawal ofminerals by the holder from the lands, from landscovered by a lease to which the mineral interest issubject, or, in the case of oil or gas, from lands pooled,unitized, or included in unit operations, under sections1509.26 to 1509.28 of the Revised Code, in which themineral interest is participating, provided that theinstrument or order creating or providing for thepooling or unitization of oil or gas interests has beenfiled or recorded in the office of the county recorder ofthe county in which the lands that are subject to thepooling or unitization are located;

(iii) The mineral interest has been used in undergroundgas storage operations by the holder;

(iv) A drilling or mining permit has been issued to theholder, provided that an affidavit that states the nameof the permit holder, the permit number, the type ofpermit, and a legal description of the lands affected bythe permit has been filed or recorded, in accordancewith section 5301.252 of the Revised Code, in the officeof the county recorder of the county in which the landsare located;

(v) A claim to preserve the interest has been filed inaccordance with division (C) of this section;

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(vi) In the case of a separated mineral interest, aseparately listed tax parcel number has been createdfor the mineral interest in the county auditor’s tax listand the county treasurer’s duplicate tax list in thecounty in which the lands are located.

(2) A mineral interest shall not be deemed abandonedunder division (B)(1) of this section because none of thecircumstances described in that division apply, untilthree years from the effective date of this section.

(C)(1) A claim to preserve a mineral interest from beingdeemed abandoned under division (B)(1) of this sectionmay be filed for record by its holder. Subject to division(C)(3) of this section, the claim shall be filed andrecorded in accordance with sections 317.18 to 317.201and 5301.52 of the Revised Code, and shall consist of anotice that does all of the following:

(a) States the nature of the mineral interest claimedand any recording information upon which the claim isbased;

(b) Otherwise complies with section 5301.52 of theRevised Code;

(c) States that the holder does not intend to abandon,but instead to preserve, his rights in the mineralinterest.

(2) A claim that complies with division (C)(1) of thissection or, if applicable, divisions (C)(1) and (3) of thissection preserves the rights of all holders of a mineralinterest in the same lands.

(3) Any holder of an interest for use in underground gasstorage operations may preserve his interest, and those

App. 56

of any lessor of the interest, by a single claim, thatdefines the boundaries of the storage field or pool andits formations, without describing each separateinterest claimed. The claim is prima-facie evidence ofthe use of each separate interest in underground gasstorage operations.

(D)(1) A mineral interest may be preserved indefinitelyfrom being deemed abandoned under division (B)(1) ofthis section by the occurrence of any of thecircumstances described in division (B)(1)(c) of thissection, including, but not limited to, successive filingsof claims to preserve mineral interests under division(C) of this section.

(2) The filing of a claim to preserve a mineral interestunder division (C) of this section does not affect theright of a lessor of an oil or gas lease to obtain itsforfeiture under section 5301.332 of the Revised Code.

(1988 S 223, eff. 3-22-89)

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Sub. S.B. 223

Sens. Cupp, Schafrath, Nettle, Drake, Burch.

Provides that, in the absence of certain specifiedoccurrences within the preceding 20-year period, asubsurface mineral interest that is not in coal or not ofa governmental entity is deemed to be abandoned andits title vested in the surface owner. (Effective: March22, 1989)

-------------------------------------------

The act modifies the Marketable Title Law toprescribe when the holder of a subsurface mineralinterest, who is not also the surface owner, is deemedto have abandoned the interest. If deemedabandonment occurs, the act provides that the interestwill vest in the surface owner.

Deemed abandonment and vesting will occur if noneof the act’s specified exceptions applies to a particularsubsurface mineral interest. However, the act statesthat deemed abandonment cannot so occur until threeyears from its effective date.

A subsurface mineral interest in coal or one held bythe United States, Ohio, or their political subdivisionscannot be the subject of deemed abandonment andvesting. Additionally, deemed abandonment andvesting will not occur under the act if any of thefollowing exceptional circumstances occurred withinthe preceding 20-year period:

(1) The interest was the subject of a filed orrecorded title transaction in the county;

App. 58

(2) Its holder actually produced or withdrewminerals from specified lands, used the interest inunderground gas storage operations, or filed orrecorded a specified affidavit with the county recorderin connection with a drilling or mining permit relatingto the interest;

(3) Its holder filed a claim to preserve the interestwith the county recorder in the form specified in the actand the claim then was filed and recorded inaccordance with the County Recorder and MarketableTitle Laws. If such a claim complies with the act’s form,filing, and recording requirements, it will preserve therights of all holders of a mineral interest in the samelands. However, such a claim does not affect the rightof a lessor to obtain a forfeiture and cancellation of anoil or gas lease.

(4) A separately listed tax parcel number wascreated for a separated mineral interest in the countyauditor’s tax list and treasurer’s duplicate.

Under the act, an interest could be preservedindefinitely from deemed abandonment by theoccurrence of any of the four listed categories ofexceptional circumstances within each preceding 20-year period.

Secs. 317.08, 317.18, 317.20, 317.201, 5301.53, and5301.56.

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