Replies to This Discussion

Permalink Reply by buc booster on January 23, 2014 at 2:29pm

Marcus,

  Yours is one of the most profound comments on GMS in some time. Capricious and arbitrary are the perfect adjectives. What happened to the inviolate personal property and chain of title protections we supposedly hold as the constitutional safeguards of a regulated capitalism.

  There are so many troubling issues here. Why are severed coal rights protected, but not oil and gas? Why should we not have to re-claim our farm ownership every 20 years, or our house, or our cars? No difference at all, except the coal companies, and their lobbying monies and high priced attorneys, who own the coal and want our gas.

  It is worse when you put faces in the picture. My grandmother and mother took care of a close friend in our church for years. A widowed school teacher, she sold her family farm in the 40's, but kept the O&G rights. Through 5 different deeds to five coal companies over 50 years the very exact language and description was used, and deeds recorded. When she passed, she deeded these rights to my mother. When we learned we needed legal work done with the new law, we paid for attorneys to file all the appropriate documents, paid the taxes on the mineral parcels, and everything was fine until we tried to lease these rights. Unbeknownst to us, the rights, and this sweet woman's legacy gift to my grandmother's family, were lost because we had no "saving event" in a two year window in the early 90's. Completely absurd!  But money talks and fairness walks.

  I would hope the Ohio Supreme Court, which must eventually adjudicate this mess, will stand up to the onslaught of briefs filed by these high priced legal firms seeking to stem the tide of legitimate constitutional questions now being raised in lower courts about takings actions that violate property protections in the Constitution. Surely, this lovely little lady's gift to her two dear lifetime friends should not be trampled to nothing because some arcane form was not filed by some legal clerk, regarding a recorded deed reaffirmation about which few if any of us ever heard.

  Sounds more like Communist China than the USA.

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Permalink Reply by Finnbear on January 23, 2014 at 4:22pm

If you had a separate deed for the mineral interest and paid taxes on it, I'd call BS on you losing it. In which court case were you ruled against and the mineral interest stripped from you? In what year did the little old lady deed the interest to your mother? Did your mother ever actually take ownership (deed transfer) of the interest or was it gone and vested back with the surface owner before the little old lady passed?

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Permalink Reply by buc booster on January 24, 2014 at 2:09am

Finnbear,

  She passed in 71, and my mother inherited these rights in her will, which was probated and recorded in 81. Coal companies bought and sold the surface, but reservation was always there, during 80's and 90's. When we learned all that was needed we started the legal work- transfered and recorded all deeds, filed all the needed affidavits, got separate tax parcels and made sure they were paid.

 But several years ago it turns out a coal company apparently sold a bunch of O&G rights, and these were included by them in the package, although not actually owned by them. An attorney told us we would have to sue both companies- file for quiet title. Instead, we tried to lease, to see if that were the case, and the company didn't take our property. An O&G attorney told us we lost it because between 90 and 92 nothing transpired in which these severed rights were the subject of a transaction, and that we would probably lose the case if we spent the money to try to get these inherited rights back- they have more attorneys, money, and time to sit than we do, that's for sure.

  Pretty sad.

 

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Permalink Reply by Den on January 16, 2014 at 5:47pm

In the Eisenbarth v Reusser case, the mineral owner got to keep the rights, when the landowner tried to take them using the ODMA, because they had a saving event during the timeframe. 

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Permalink Reply by Kathleen on January 19, 2014 at 12:29pm

Hi,

I'm confused at what everyone is saying. I think everyone is saying the surface owners own?
In bender vs Morgan, in columbiana county, the mineral owners won, since they had a savings event. Bender filed one day late to the recorders office. Due to that one day, the Dorr heirs filed a saving event in time, before another attempt from Bender to have the minerals considered abandon.
Just confused.

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Permalink Reply by Den on January 19, 2014 at 1:54pm

In eisenbarth v ruesser the surface owner tried to use DMA to get ownership, but didn't because there  was a saving event by the mineral owners during the 20 yr period.  DMA was still applied, but the surface owner (relative of the mineral owner) did not get the minerals.

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Permalink Reply by M Thomas on January 25, 2014 at 3:09am

There are two court cases that came out recently and decided against the 1989 DMA.  Gentile v Ackerman, from Monroe County and M & H Partnership v Hines from Harrison County.  Both seem unlikely to survive appeal for different reasons.

Gentile v Ackerman makes the claim that because Dodd did not apply the 1989 DMA in its decision, the 2006 DMA applies. The problem with that, though, is that the plaintiffs never argued the 1989 DMA and the Court can only review what was pleaded. The moment that the 7th District reviews a case where the 1989 DMA is plead (like Tribett v Sheperd), it will overturn Gentile v Ackerman.

For that matter, the moment that the Ohio Supreme Court certifies the questions that the Federal court is asking in the Buell case, it will call into question the Gentile v Ackerman decision.

Like it or not, it is unconstitutional to deprive vested rights that were afforded surface owners from the 1989 DMA. Deciding which DMA to apply is not a matter of preference. It is a chronological task. First you walk through to see historically how the 1989 DMA applies, if at all, then you walk through to see how the 2006 DMA might apply if at all.

The other case, M & H Partnership v Hines from Harrison County is an echo of the Carrol County case. It will most likely not withstand appeal either because it inserts requirements for the surface owner that are not in the plain language of the law.

What is more the decision ignores the second half of the vesting language that says "shall be deemed abandoned and vested in the owner of the surface, if none of the following applies".

It is an automatic vesting, like it or not. It was historically thought to be so. Additionally, in the above sentence, where does it say that the surface owner must file a quiet title action or an affidavit? It does not.

In fact, what makes it automatic is what comes after the "if" statement, which is simply a list of savings events and other exceptions that cannot be abandoned (ie US property, coal, see the original 1989 statute - http://www.ohiodormantmineralact.com/).

It is anachronistic to suggest that the surface owner had to take any action. It is also unconstitutional to deprive them of vested rights.

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Permalink Reply by buc booster on January 25, 2014 at 3:56am

If you have a tax parcel number, and a recorded county affidavit of ownership, and you are paying taxes on the severed minerals, it still means nothing. So much for your vested rights!

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Permalink Reply by Finnbear on January 25, 2014 at 5:33am

buck booster - have you had a RECENT sit-down with a highly competent O&G attorney? There are only a handful of them who are at the forefront of the dormant minerals issue and you shouldn't be dealing with anyone else

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Permalink Reply by buc booster on January 25, 2014 at 5:52am

  Thanks, Finnbear,

  Yes, one of the top O&G firms in the state- referred to often on this site. Doesn't matter, in their opinion, because all of the deed transfers throughout those 20 years, in which the minerals were reserved, with the exact same language and legal description, were not "saving events", since they were not the "principle" title action in these deeds, rather the exchange of surface ownership.

  Even though this was willed, deeded, probated- all recorded, affidavit of ownership filed, tax parcels established and taxes paid on this specific legally described O&G reservation, we no longer own, apparently.

  Just is unbelievable- sounds like a "taking" to me, but what do I know. It's about cold enough to be Soviet Russia in Ohio now, maybe we woke up in the wrong country!

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Permalink Reply by buc booster on January 25, 2014 at 9:48am

HarcO

  While I am certainly not an attorney, I do follow this issue closely, since it appeared all those earlier decisions were what destroyed the wonderful inheritance this woman bequeathed to my mother. The Dodd opinion was so well written, and argued so forcefully for an entirely more Constitutional, rather than procedural, basis for ownership- it appeared to find that a probated will should be a saving act, and that a clear chain of title reservation should not be obviated by some law clerk dropping off some arcane form at the County Courthouse.

  It seems you are suggesting this decision may have some bearing on the Ohio Supreme Court's approach to resolution. Is this your thought?

  It would certainly give our family new hope- thanks for the reply.

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Permalink Reply by catt on January 25, 2014 at 11:52am

But what happens if you didn't know you  were left the mineral rights....some relatives recently found out that their mother never transferred the rights when their dad died in the 80's. Then their mother passed away in the 90's. An oil company recently  showed them the deed stating the minerals were left to their mother, but never transferred into their names.....The current land owner never ran ads trying to find them either.

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