Court of Appeals of Ohio, Seventh District, Noble
Appeal from the Court of Common Pleas of Noble County, Ohio
Case No. 214-0146
Plaintiff-Appellant: Atty. Daniel P. Corcoran Atty.
Kristopher O. Justice Theisen Brock
Defendants-Appellees: Atty. Craig J. Wilson C.J. Wilson Law,
LLC, Atty. Thomas D. White Atty. Matthew A. Kearney, Atty. J.
Emens Emens & Wolper Law Firm
Carol Ann Robb Hon. Cheryl L. Waite Hon. Mary DeGenaro
Plaintiff-Appellant Gudrun Ann McAuley appeals the decision
of Noble County Common Pleas Court granting summary judgment
in favor of Defendants-Appellees Donald Brooker, Roger Gantz,
Shirley Gantz, Sidney Karin, Jack Morris, and Catherine
Morris. There are two issues raised in this appeal.
The first issue is whether the reservation in the 1961 deed
for oil, gas, and mineral interest owned by Cora retained the
interest for Cora's heirs, or was that interest conveyed
with the surface estate in 1961 to Appellant's
predecessor in title?
The second issue is whether the mineral interest was
abandoned and vested under the 2006 Ohio Dormant Mineral Act.
Specifically, Appellant contends the filing of a claim to
preserve under R.C. 5301.56(H) does not prevent the
conclusive presumption of abandonment under R.C. 5301.56(B).
As to the first issue, we conclude Cora Atkinson's estate
reserved the mineral interest. The argument raised in the
second issue is the same argument raised and found meritless
in Bayes v. Sylvester, 7th Dist. No. 13 MO 0020,
2017-Ohio-4033, ¶ 24-26. Thus, on the basis of that
case, the second issue also has no merit. Accordingly, the
trial court's grant of summary judgment is affirmed.
of the Facts and Case
Appellant acquired a tract of land in Jefferson Township,
Noble County, Ohio in 1998.
It is undisputed that a portion of the mineral estate
underlying this property had been sold to George Rice in
1874; the 1874 deed stated Isaac and Hannah Atkinson sold a
portion of the "petroleum, coal, rock or leanbon [?] oil
and all minerals and volatile substances" to George Rice
(Rice mineral interest). 1874 Deed.
It is also undisputed that Isaac W. Atkinson owned the
surface and any minerals that had not been sold to George
Rice. In February 1937, Isaac W. Atkinson transferred the
surface estate to his wife Cora Atkinson and he retained the
mineral estate that had not previously been sold to Rice. The
1937 deed referenced the 1874 mineral conveyance to Rice. The
specific language used in the 1937 deed was:
EXCEPT a certain conveyance by Isaac Atkinson and Hannah
Atkinson to George Rice of about 37 acres, part of said
section 8, for a description of said tract, reference is
hereby had to records of Noble County, Ohio, of all the oil
and mineral underlying said tract described in said
conveyance above referred to. Said premises of 63 acres more
or less, being parts of the same premised deeded to
William L. Atkinson by Isaac Atkinson and his wife, Hannah
Atkinson and Robert F. Lorckson [?]. RESERVING however from
the operation of this deed the undivided interest of the oil,
gas, coal and other minerals in and under this tract of land
as heretofore described together with the right to operate
and produce the same, except the Rice conveyance of 37 acres,
hereinbefore set out.
It is undisputed Isaac W. Atkinson died intestate in 1959 and
Cora Atkinson inherited his mineral interest under Ohio's
laws of intestate succession. Cora Atkinson died in 1960. Her
will devised an equal 1/3 interest to Margaret Morris, Donald
L. Booker, and Smith Ballentine. Appellees are the devisees
and/or heirs of the devisees.
In 1961, Cora Atkinson's estate, through the executor
L.C. Young, sold the real property to Delmar G. Lewis and
Betty M. Lewis, Appellant's predecessors in title. The
1961 deed contains the following language:
RESERVING from the operation of this deed the undivided
interest in the oil, gas, coal and other minerals underlying
said premises and reserved in a deed from Isaac Atkinson and
Hannah Atkinson to George Rice and further reserved in a deed
from Isaac W. Atkinson to Cora Atkinson, in Volume 89 at Page
576, Deed Record of Noble County, Ohio.
1961 Executor's Deed.
Appellant attempted to serve a notice of abandonment on
Appellee Donald L. Booker by certified mail on October 16,
2013. After certified mail failed, a notice of abandonment
was published on October 28, 2013 in a newspaper of general
circulation in Noble County. The published notice was
directed to the heirs and assigns of Cora Atkinson. On
December 17, 2013 Appellant filed an "Affidavit of
Abandonment" in the Noble County Recorder's Office.
A notice of preservation was filed by Appellee Sidney Karin
on December 20, 2013 preserving Appellees alleged interest.
In September 2014, Appellant filed a complaint for quiet
title in Noble County Common Pleas Court. Appellant sought to
have the minerals underlying her property deemed abandoned
and reunited with the surface. Appellees, along with others,
were listed as defendants to this action.
Following discovery, the parties filed their respective
summary judgment motions. 11/15/16 Defendants' Motion for
Summary Judgment; 12/16/16 Plaintiff's Motion for Summary
Judgment. Appellees argued the 1961 reservation reserved the
Atkinson mineral interest (the mineral interest Cora
inherited from Isaac W. Atkinson). They further argued the
notice of preservation preserved their interest. Appellant
argued the 1961 reservation did not reserve the Atkinson
mineral interest, but rather was a notification of the Rice
mineral interest that was conveyed to Rice in the 1874 deed
and restated in the 1937 deed. She alternatively argued the
notice of preservation did not preserve the interest, because
the filing of a claim to preserve under R.C. 5301.56(H) does
not prevent the conclusive presumption of abandonment under
The trial court granted Appellees' summary judgment
motion and denied Appellant's summary judgment motion.
2/22/17 J.E. The trial court stated the Atkinson mineral
interest was reserved by Cora's estate under the 1961