Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McAuley v. Brooker

Court of Appeals of Ohio, Seventh District, Noble

December 18, 2017

GUDRUN MCAULEY, PLAINTIFF-APPELLANT,
v.
DONALD L. BROOKER et al., DEFENDANTS-APPELLEES.

         Civil Appeal from the Court of Common Pleas of Noble County, Ohio Case No. 214-0146

          For Plaintiff-Appellant: Atty. Daniel P. Corcoran Atty. Kristopher O. Justice Theisen Brock

          For 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

          Hon. Carol Ann Robb Hon. Cheryl L. Waite Hon. Mary DeGenaro

          OPINION

          ROBB, P.J.

         {¶1} 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.

         {¶2} 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?

         {¶3} 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).

         {¶4} 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.

         Statement of the Facts and Case

         {¶5} Appellant acquired a tract of land in Jefferson Township, Noble County, Ohio in 1998.

         {¶6} 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.

         {¶7} 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.

1937 Deed.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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 R.C. 5301.56(B).

         {¶13} 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.