A critical safeguard of Ohio’s Dormant Mineral Act (the “DMA”) is that notice will be provided to the holder of a severed mineral interest, or their successors, thereby allowing that holder an opportunity to respond. The case of Toma v. Devaul,[1] illustrates the importance of conducting a reasonably diligent search for the holders of a severed mineral interest and provides additional context on what exactly that might entail.
In 1912, John W. and Liddia Devaul conveyed their interests in the subject property but reserved a one-half interest in the oil and gas estate of said property by a deed recorded in Guernsey County, Ohio, and executed in the adjoining Belmont County.[2] Appellants acquired title to the property through various deeds in 2014 and 2016, however, it was their predecessors-in-title that had filed for the abandonment of the Devaul mineral reservation.[3]
The Appellants’ predecessors-in-title hired a firm to search for any heirs, successors, or assigns of John W. Devaul and Liddia Devaul. When the abstractor found no evidence concerning any surviving heirs in the General and Lease Indices of Guernsey County and the Probate Records of Guernsey County, the Appellants’ predecessors-in-title published notice of their intent to declare the reservation abandoned and vested in them pursuant to the DMA.[4] Subsequently, the successors of John W. Devaul and Liddia Devaul leased the oil and gas estate of the subject property to Gulfport Energy Corporation and Eclipse Resources, I, LP (collectively, the “Appellees”).[5] As a result, the Appellants filed a complaint seeking an order that the mineral interests related to the Devaul reservation were extinguished by operation of the DMA.[6]
At the trial court, a deposition of the attorney who represented Appellants’ predecessors-in-title revealed that he discovered the potential residence of the Devaul heirs or successors, which was located in Belmont County, through an Ancestry.com search; however, he did not review the Belmont County Records.[7] In accordance with Gerrity v. Chervenak, the trial court found that while the Appellants’ search of the Guernsey County Records established a “baseline of reasonable diligence” in identifying the holder or holders of the severed mineral interest, the Gerrity Court refused to adopt a bright-line rule and warned that “[t]here may, however, be circumstances in which the surface owner’s independent knowledge or information revealed by the surface owner’s review of the property and court record would require the surface owner, in the exercise of reasonable diligence, to continue looking elsewhere to identify or locate a holder.”[8] Thus, the trial court determined that, upon discovering the Belmont County addresses, it would have been reasonable for the predecessors-in-title to search the Belmont County Records and because they did not do so, their search was not reasonable.[9]
Affirming the trial court’s ruling, the Fifth District Court of Appeals held that upon the discovery of information that suggested that the Devaul heirs resided in Belmont County, a reasonably diligent search for the Devaul’s heirs, successors, and assigns would include a review of the public records in Belmont County.[10] Accordingly, because Appellants neglected to continue their search in the Belmont County Record, their search did not meet the reasonable-diligence standard established in Gerrity.[11] Thus, based on the information available to them at the time, Appellants were not entitled to pursue notice by publication under Ohio Rev. Code § 5301.56, and were therefore not entitled to abandonment.[12]
Although Ohio courts continue to steer clear of providing a bright-line rule, this case sheds some additional light on the reasonable-diligence standard set forth in Gerrity by providing an example of when a search must be extended outside of the county in which an interest is located.
Authored by Ryan Stewart and Matthew Gibson
[1] 2023-Ohio-2163.
[2] Id. at ¶¶ 2-3.
[3] Id. at ¶ 3.
[4] Id. at ¶ 4.
[5] Id. at ¶ 5.
[6] Id. at ¶ 6.
[7] Id. at ¶¶ 7-8.
[8] Id. at ¶ 11; citing Gerrity v. Chervenak, 2020-Ohio-6705, at ¶ 36.
[9] Id.
[10] Id. at ¶ 30.
[11] Id.
[12] Id.
Ryan represents clients in connection with transactional matters, due diligence, complex mineral titles, lease analysis, surface use issues and title curative. In addition, Ryan has extensive experience in the drafting and review of original drilling title opinions, as well as supplemental drilling title opinions and limited acquisition title opinions. He also assists in litigation and regulatory matters, including unitizations.