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Kilburn v. Graham

Court of Appeals of Ohio, Seventh District, Monroe

June 19, 2019

STEPHEN KILBURN, Plaintiff-Appellant,
v.
GAIL GRAHAM ET AL., Defendants-Appellees.

          Civil Appeal from the Court of Common Pleas of Monroe County, Ohio Case No. 2017-002.

          Brent Stubbins, Atty. Kyle Witucky, Atty. Grant Stubbins, Stubbins, Watson, Bryan & Witucky Co., for Plaintiff-Appellant, and

          Atty. Michael Shaheen, Atty. Kristina Herman, Shaheen Law Group, for Defendants-Appellees.

          BEFORE: Gene Donofrio, Carol Ann Robb, David A. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          Donofrio, J.

         {¶1} Plaintiff-appellant, Stephen Kilburn, appeals the judgment of the Monroe County Common Pleas court granting summary judgment in favor of defendants-appellees, Steven Wells, Marcia Wells, Carl Wells, Patricia Wells, Julie Myers, and Thomas J. Myers, on his quiet title action concerning an oil and gas royalty.

         {¶2} In 1919, Frieda and Chancy Ankrom were the owners of the surface rights of 120 acres of real property, more or less, in Malaga Township in Monroe County, Ohio (the property). In addition to the surface rights, Frieda and Chancy also owned an undivided 1/2 interest of the oil and gas royalty in the property.

         {¶3} In a deed dated May 27, 1919, the Ankroms conveyed "unto F.F Burkhart, A.C. and E.L. Peters and H.J. Cooper the one-half part or share of their royalty of all [the oil] and gas in and under [the property]." Appellees are heirs of F.F. Burkhart.

         {¶4} F.F. Burkhart died intestate on September 21, 1935. A certificate of transfer from the probate court filed February 12, 1937 conveyed from F.F. Burkhart to Hazel May Wells "the undivided one-sixth part of the oil and gas royalty" in the property.

         {¶5} On November 18, 1980, Hazel filed a notice of preservation of her oil and gas royalty pursuant to R.C. 5301.52. This notice indicated that Hazel was the owner of "an undivided one-sixth part of the oil and gas royalty" of the property.

         {¶6} On May 29, 1996, Hazel conveyed her entire one-sixth interest in the oil and gas royalty of the property to appellees Carl Wells and Patricia Wells.

         {¶7} On June 2, 2005, appellant became the owner of the surface rights to the property via a warranty deed.

         {¶8} On July 9, 2014, appellees Carl Wells and Patricia Wells conveyed "an undivided one-half interest in all of our ownership interest in the oil, gas and other minerals" to appellees Steven Wells and Julie Myers. Appellee Marcia Wells is the wife of appellee Steven Wells and appellee Thomas Myers is the husband of appellee Julie Myers.

         {¶9} Appellant filed this action seeking, among other things, quiet title to the oil and gas interest and declaratory judgment. Appellant's quiet title claim was premised on the Marketable Title Act. Appellant's declaratory judgment claim sought a declaration that: appellees Carl and Patricia Wells only owned an undivided 1/32 interest in the oil and gas royalty of the property, appellee Steven Wells only owned an undivided 1/64 interest in the oil and gas royalty of the property, and appellee Julie Myers only owned an undivided 1/64 interest in the oil and gas royalty of the property. Appellant served all interest ...


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