Client Alert: Fifth District Issues Decision on Application of Ohio's Marketable Title Act to Severed Mineral Interests

On May 11, 2020, the Fifth District Court of Appeals issued an opinion in Cain v. Horn, 5th Dist. Guernsey No. 19CA0031, 2020-Ohio-3171, addressing the issue of whether the more specific provisions of the Dormant Mineral Act control over the general provisions of the Marketable Title Act with regard to claims concerning the abandonment and extinguishment of a previously severed mineral interest.

In its analysis, the Fifth District, citing the Seventh District’s holding in West v. Bode, 7th Dist. Monroe No. 18MO0017, 2019-Ohio-4092, held that no conflict exists in applying both the Marketable Title Act and Dormant Mineral Act to severed mineral interests as the provisions of the statutes are “separate and distinct and the two statutes do not irreconcilably conflict” as they are co-extensive alternatives whose applicability in a particular case depends on the time passed and the nature of the items existing in the pertinent records.

Although not cited, the Court’s holding in Cain also follows the rationale and decision of the 7th District in Senterra Ltd. v. Winland, 7th Dist. Belmont No. 18 BE 0051, 2019-Ohio-936.

While both the Fifth and Seventh Districts have agreed that the Marketable Title Act can operate independent of the Dormant Mineral Act to extinguish mineral interests, this issue will likely continue to be litigated and preserved for appeal until a decision on this issue is reached by the Supreme Court of Ohio. Notably, in Blackstone v. Moore, 155 Ohio St.3d 448, 2018-Ohio-4959, decided by the Supreme Court of Ohio on December 13, 2018, Justice DeGenaro included a lengthy concurrence suggesting that its decision in Blackstone should be narrowly construed, and questioning the applicability of the Marketable Title Act to “specialized” mineral interests for which the Dormant Mineral Act should be the controlling law given the General Assembly’s intentions in creating the Dormant Mineral Act and its specific requirements within the more generalized Marketable Title Act statute.

Our oil and gas attorneys have extensive experience counseling surface owners, mineral interest holders, and lessees with oil and gas issues, and will continue to actively monitor this issue and provide advisory updates as prevailing case law on this subject continues to develop. As it currently stands, we would advise that mineral interest holders should take caution and seek to preserve their interests from claims of extinguishment under both the Dormant Mineral Act and Marketable Title Act.

Attorney Alex Quay is a Partner in Brouse McDowell’s Litigation and Real Estate Practice Groups. Alex has experience counseling clients in matters involving business and commercial litigation, real estate transactions, title insurance, construction, zoning, and disputes concerning ownership of oil, gas, and mineral rights. He can be reached by phone at (330) 434-4730, or by email at aquay@brouse.com.