[Cite as Hickman v. Consolidation Coal, 2019-Ohio-492.]




             IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                               COLUMBIANA COUNTY

                              JEFFREY B. HICKMAN, ET AL.,

                                       Plaintiffs-Appellants,

                                                    v.

                     CONSOLIDATION COAL COMPANY ET AL.,

                                     Defendants-Appellees.


                       OPINION AND JUDGMENT ENTRY
                                        Case No. 17 CO 0012


                                   Civil Appeal from the
                     Court of Common Pleas of Columbiana County, Ohio
                                  Case No. 2013-CV-683

                                          BEFORE:
                  Kathleen Bartlett, Gene Donofrio, Cheryl L. Waite, Judges.


                                             JUDGMENT:
                                              AFFIRMED


Attys. Matthew Onest and Scott Zurakowski , 4775 Munson Street, NW, P.O. Box
36963, Canton, Ohio 44735-6963, for Appellants and

Attys. Ashley Oliker and Stephen Chappelear, 10 West Broad Street, Suite 2300,
Columbus, Ohio 43215; Attys. Andrew Schock and Clay Keller, 50 South Main Street,
Suite 201, Akron, Ohio 44308; Attys. James Wherley, Jr. and Randolph Snow, 220
Market Avenue, South, Suite 1000, Canton, Ohio 44702; Atty. Vito Abruzzino, East
Pershing Street, Suite A, Salem, Ohio 44460, for Appellees.
                                                                                       –2–



                                 Dated: February 5, 2019


Bartlett, J.

       {¶1}    Plaintiffs-Appellants, Jeffrey and Leah Hickman, appeal the decision of the
Columbiana County Common Pleas Court granting summary judgment in favor of
Defendants-Appellees, in their declaratory judgment and quiet title claims relating to two
severed mineral interests. On appeal, Appellants argue that the trial court erred in
determining that the severed mineral interests were not extinguished under the Ohio
Marketable Title Act.   Appellants further argue that the trial court erred by holding that
the Appellants were not entitled to a conclusive presumption of abandonment and/or
cause of action under the United States Constitution.
       {¶2}    For the following reasons, Appellants’ first and second assignments of
error are without merit, and the trial court’s entry granting summary judgment in favor of
the Defendants-Appellees (mineral interest holders) is affirmed.
                              Facts and Procedural History
       {¶3}    The instant action involves mineral rights underlying two tracts of land: (1)
approximately 16.922 acres of real estate that was transferred on June 18, 1948 from
R.C. Northam and Georgia Northam to Healy Bros. & Company, which stated
“EXCEPTING and reserving all the coal below the Pittsburgh No Eight seam of coal,
together with []he usual and customary mining rights and rights of removal of said deep
coal. Also reserving timber on said property and the buildings, providing however that
the timber and buildings are [ ] removed at such time as is necessary so that any actual
stripping operations will not be inte[ ]erred with. Also excepting and reserving the right
of Grantors to use and occupy the buildings until January 1, 1949 and so much longer
as their use and occupancy will not interfere with stripping operations, but said use and
occupancy is not to extend beyond such time as the balance due on the purchase price
is fully paid. Also excepting and reserving all oil and gas underlying said premises.”
(recorded on June 25, 1948 at Volume 124, Page 128) (referred to as the “Northam
reservation”); and (2) approximately 14.024 acres of real estate that was transferred on
November 15, 1957 from Harry C. and Olga M. Lawlis to Pittsburgh Consolidation Coal



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Company which stated: “Reserving unto Harry C. Lawlis, the Grantor herein, his heirs,
executors, administrators or assigns, all oil, coal or other minerals, if any, underlying the
No. 8 or Pittsburgh vein of coal, together with the right to mine and remove the same,
and transport such from other lands thereunder, provided, however, that such mining,
removal and transporting shall be conducted so as to in no manner interfere with the
mining operation of the Grantee herein, Pittsburgh Consolidation Coal Company its
successors or assigns.” (recorded on November 18, 1957 at Volume 141, Page 115)
(referred to as the “Lawlis reservation”).
       {¶4}   It is undisputed that the Northam Appellees’ predecessors-in-interest
reserved the severed mineral rights underlying the 16.922 acres, and that the Northam
Appellees ultimately became the holders of that mineral rights reservation. (Second
Am. Compl., at ¶ 50-51, 78).
       {¶5}   There is confusion in the deed history.        The deed that contains the
Northam reservation from R.C. and Georgia Northam to Healy Bros. and Company was
recorded in the Harrison County Recorder’s Office on June 25, 1948 in Deed Book 124,
Page 128. The Appellants next refer to a 1963 deed from Consolidation Coal Company
to Alfred O. Haverfield, Marguerite Haverfield Hurless and Harold C. Haverfield, as their
root of title deed, recorded on November 22, 1963 at Deed Book 150, Page 4. There
are no deeds or transfers in evidence to demonstrate the chain of title between Healy
Bros. and Company and Consolidation Coal Company. There is a reference in the root
of title deed, as well as the subsequent conveyances thereafter, to “. . . 16.922 acres of
a 97.437 acre tract conveyed by Charles C. Simpson, et al to Pittsburgh Consolidation
Coal Co. by deed dated May 26, 1952, which deed is recorded in Volume 131, page
245, Deed Records of Harrison County, Ohio." The 1952 deed does not appear in the
record. Regardless, all parties have asserted as an undisputed fact that the Northam
heirs are the holders of that reservation. In the first motion for summary judgment filed
by Chesapeake in 2014, there is a footnote which refers to the 1963 Deed in which
Consolidation Coal conveyed its interest to Alfred O. Haverfield, et al.         It included
language reserving all of the oil and gas underlying the premises, but the oil and gas
interest had already been reserved by the Lawlis Reservation prior to Consolidation
Coal receiving title to the property.        Further, Consolidation Coal was voluntarily



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dismissed as a party pursuant to Plaintiff’s Amended Complaint.
      {¶6}   It is undisputed that the Lawlis Appellees’ predecessors-in-interest
reserved the severed mineral rights underlying the 14.024 acres, and that the Lawlis
Appellees ultimately became the holders of that mineral rights reservation. (Second
Am. Compl., at ¶ 56-57, 80)
      {¶7}   It is undisputed by the Northam and Lawlis Appellees that prior to entering
into current oil and gas leases with Appellee Chesapeake in 2012 and 2013 for the
mineral rights underlying the two tracts of land, no “savings event” had taken place
during the time period prescribed in R.C. 5301.56 to preserve either of the mineral
interests. (Second Am. Compl., at ¶ 82, 83, 87-94).
      {¶8}   It is undisputed that the Appellants are the current surface owners of the
two tracts of land, which they acquired in 2008.
      {¶9}   Appellants argue that the “root of title” forming the basis for their claim that
the Northam Reservation was extinguished under the MTA is the deed dated November
5, 1963, and recorded on November 22, 1963, at Deed Volume 150, Page 4 of the
Harrison County Recorder’s Office.       Appellants argue that from that date through
September 8, 2008 (when they purchased the surface property) the Northam
Reservation was not subject to any events that would act to preserve that interest under
the MTA. Appellants assert that the Reservation was not specifically identified and
referenced in Appellants’ “root of title” or any title document between November 22,
1963 and September 8, 2008.        Appellants maintain that as a result, the Northam
Reservation was extinguished by operation of the MTA on September 8, 2008.
      {¶10} Appellants filed the underlying action on November 13, 2013, seeking
declaratory judgment and quiet title relief relating to the severed mineral interests at
issue. Appellants asserted claims pursuant to the Marketable Title Act (MTA) as to the
Northam reservation, and under the 1989 Dormant Mineral Act (DMA) as to both of the
severed interests.
      {¶11} On February 10, 2015, the trial court stayed the case pending the Ohio
Supreme Court’s resolution of then-pending cases involving the 1989 DMA.
      {¶12} On November 2, 2016, the trial court dissolved the stay and granted
Appellants leave to file a second amended complaint, which asserted the MTA claim as



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to the Northam reservation only, and asserted claims as to both of the reservations
under the United States Constitution as a result of the Ohio Supreme Court’s decision in
Corban v. Chesapeake Exploration, L.L.C., et al., 2016-Ohio-5796.
       {¶13} Appellants admit they have not submitted a claim pursuant to the 2006
DMA as to either of the mineral interests or reservations.
       {¶14} On January 17, 2017, Appellants filed a motion for summary judgment
before the trial court.   On January 18, 2017, Appellees filed multiple motions for
summary judgment.
       {¶15} The trial court heard oral argument on the pending motions for summary
judgment on April 3, 2017.
       {¶16} On May 4, 2017 the trial court issued a Judgment Entry overruling the
Appellants’ Motion for Summary Judgment, specifically finding the constitutional
arguments asserted by Appellants as meritless. The trial court granted the motions for
summary judgment filed by Appellees, “for the reasons set forth in the Memorandums in
support of those motions and on the basis of the authorities cited.” (JE at 6).
       {¶17} Appellants filed the instant timely appeal.
                                   First Assignment of Error

       The trial court erred in granting summary judgment to the Northam
       Appellees because their severed mineral interest was extinguished under
       the Ohio Marketable Title Act.

       {¶18} An appellate court conducts a de novo review of a trial court’s decision to
grant summary judgment. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996). As such, this Court shall apply the same test as the trial court in
determining whether summary judgment was proper. It is the initial burden of the party
moving for summary judgment to demonstrate the absence of a genuine issue of
material fact as to the essential elements of the case with evidence of the type listed in
Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). If the
moving party meets its burden, the burden shifts to the non-moving party to set forth
specific facts to show that there is a genuine issue of material fact. Id.; Civ.R. 56(E).
       {¶19} Appellants argued before the trial court that they should be declared the


Case No. 17 CO 0012
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owners of their real property, free and clear from the two severed mineral interests at
issue. It is undisputed that Appellants did not satisfy the procedural requirements of the
2006 DMA in order to deem the severed mineral interests abandoned, and no claim was
advanced in that regard. Appellants argue that the trial court erred by failing to hold that
the Northam Reservation was extinguished under the MTA.
       {¶20} Appellants argue that the Northam Reservation, created in 1948, was not
specifically referenced within Appellants’ “root of title” deed or any instrument thereafter.
Appellants argue the interest was not subject to any preserving events or exceptions
under the MTA, and should have been extinguished by the trial court.
       {¶21} All of the Appellees argue that the Appellants were required to assert any
claims regarding the severed mineral rights under the 2006 DMA, and that they cannot
make an alternative argument under the MTA.             However, even if an alternative
argument could be made under the MTA, the Appellants’ claim as to the Northam
reservation still fails because Appellants do not have an unbroken chain of title to the oil
and gas interest under R.C. 5301.48.
       {¶22} There is no MTA claim by Appellants against the Lawlis Reservation. The
Appellants identified a root of title deed recorded on November 18, 1957, but it is
undisputed that a subsequent transfer of the interest in 1994 prevented the Appellants
from obtaining a 40-year period to trigger application of the MTA to extinguish the
Reservation.    The sole argument against the Lawlis Reservation is Appellants’
constitutional argument that was dismissed as meritless by the trial court.
       {¶22} The legislature enacted the MTA to “simplify[] and facilitat[e] land title
transactions by allowing persons to rely on a record chain of title.” R.C.5301.55. The
act allows that a party “who has an unbroken chain of title of record to any interest in
land for forty years or more, has a marketable record title to such interest.” R.C.
5301.48.
       {¶23} The MTA “operates to extinguish such interests and claims, existing prior
to the effective date of the root of title.” R.C. 5301.47(A). The “root of title” is “that
conveyance or other title transaction in the chain of title of a person * * * which was the
most recent to be recorded as of a date forty years prior to the time when marketability
is being determined.” R.C. 5301.47(E). Pursuant to the MTA, “record marketable title



Case No. 17 CO 0012
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shall be held by its owner and shall be taken by any person dealing with the land free
and clear of all interests, claims, or charges whatsoever, the existence of which
depends upon any act, transaction, event, or omission that occurred prior to the
effective date of the root of title.” Blackstone v. Moore, 2017-Ohio-5704, 94 N.E.3d 108,
¶ 30 (7th Dist.), citing R.C. 5301.50, affirmed by Blackstone v. Moore, -- Ohio St.3d --,
2018-Ohio4959, --N.E.3d --, citing R.C. 5301.48. “A person who has an unbroken chain
of title of record to any interest in land for forty years or more has a marketable record
title to such interest.” Id., citing Warner v. Palmer, 7th Dist. No. 14 BE 0038, 2017-Ohio-
1080, ¶ 30.
       {¶24} Pursuant to the Ohio Supreme Court’s recent holding in Blackstone, a
royalty interest is subject to both the MTA and DMA. See Blackstone, supra.
       {¶25} The Appellants are referencing a root of title deed in the instant case
which was recorded on November 22, 1963, hypothetically giving rise to a claim of
extinguishment under the MTA in 2003 (setting all other arguments aside as to whether
the root of title deed was proper), which was before the enactment of the 2006 DMA,
and before the Appellants became the surface owners of the subject property.
       {¶26} However, this Court has previously held that a purported root of title that
contains an exception for oil and gas is not a proper root of title “because it does not
contain a fee simple title free of any such oil and gas exception and reservation.”
Holdren v. Mann, 7th Dist. No. 592, 1985 WL 10385, *2 (Feb. 13, 1985). See also
Christman v. Wells, 7th Dist. No. 539, 1981 WL 4773, *1 (Aug. 28, 1981) (noting the
deed reciting a reservation of royalties was not “the interest” claimed by appellant). In
Holdren, the clause at issue stated “* * * and also reserving all oil and gas with the right
to operate therefore* * *” and was repeated in the purported root of title. Id. at *1, *2. In
Christman, the relevant clause that severed the oil and gas, and was subsequently
repeated in multiple deeds in the chain of title (including the purported root of title deed),
stated: “Excepting and reserving the one-half oil and gas royalty being 1/16th of the oil
produced and 1/2 of the money received from the sale of gas.” Id. In reviewing the
severance clauses in Christman and Holdren, those Courts focused on the mere
existence of the clause within the purported root of title deeds to prevent extinguishment
pursuant to the MTA and did not examine whether the clauses were general or specific



Case No. 17 CO 0012
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within the root of title deed. See generally Toth v. Berks Title Ins. Co., 6 Ohio St.3d
338, 340-341, 453 N.E.2d 639, 6 O.B.R. 394 (1983) (finding the root of title deed
contained no mention of the setback use restrictions at issue in that case, but since
there was a specific reference in a 1966 deed to the setback use restrictions, which
deed was a part of the plaintiff’s record marketable title, it was an “interest or defect
which is inherent in the muniments” and not extinguished by the MTA); Pollock v.
Mooney, 7th Dist. No. 13 MO 9, 2014-Ohio-4435, ¶ 6, 23-29 (finding the root of title
deed contained no reference to the Sale of Royalty at issue and no deeds subsequent
to the root of title repeated or referred to any prior oil or gas conveyance, such that
extinguishment under the MTA was proper); Murray Energy Corp, et al.. v. Pepper Pike,
et al., 11th Dist. No. 90420, 2008-Ohio-2818, ¶ 25, 28 (finding the root of title did not
contain the restriction on the sale or use of alcohol on the property, and there was no
specific reference to the restriction for forty years following the root of title, such that the
restriction was extinguished by the MTA).
       {¶27} Appellants identify their Root Deed as the deed dated November 5, 1963,
and recorded November 22, 1963 at Deed Volume 150, Page 4, of the Harrison County
Recorder’s Office. The Deed contains the following reservation:

       EXCEPTING AND RESERVING also unto said Grantor, Consolidation
       Coal Company, its successors and assigns, all the oil and gas and other
       minerals of whatsoever nature, kind or description in and underlying the
       above described premises * * *

       {¶28} The Root Deed or “root of title” in the instant case does not purport to
create any interest in oil or gas in the Appellants, or in any other person or entity from
whom the oil and gas interest has vested in Appellants. In addition, the Appellants’
chain of title contains the same exception of the oil and gas interest in each conveyance
of the property in Appellants’ chain of title. (Ex. 3 to Appellants’ Jan. 17, 2017 MSJ).
See Christman, supra, at *1(holding that since the “root of title” deed in that case recited
the reservation of royalties, it was not “the interest claimed” by appellants as required
pursuant to the definition of “root of title”). Similarly here, the “root of title” deed relied
upon by Appellants contains the Consolidation Coal reference highlighted herein. As a


Case No. 17 CO 0012
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result, Appellants have not proven an interest free of any reservations or exceptions
since the reservation is clearly stated within the “root of title” and the subsequent
conveyances in the chain of title. Appellants’ first assignment of error is without merit.
                              Second Assignment of Error

       The trial court erred in granting summary judgment to the Lawlis Appellees
       and   Northam     Appellees    because     Appellants’   Corban     conclusive
       presumption of abandonment and related cause of action must, under the
       United States Constitution, must [sic] be confirmed in this litigation.

       {¶29} Appellants argue that their interests in the abandonment of the Northam
and Lawlis Reservations is a property right protected by the United States Constitution
and cannot be abrogated by the enactment or application of the 2006 DMA. (Response
to Northam and Lawlis MSJ at 4). Appellants note Corban, stating that “[B]y providing a
conclusive presumption . . . the legislature provided an effective method of terminating
abandoned mineral rights through a quiet title action.” Corban, at ¶ 25. Appellants
further argue that Corban did not determine whether the “conclusive presumption of
abandonment and ownership,” and related cause of action, raise property interests
under the Fifth or Fourteenth Amendments of the United States Constitution, but only
examined whether the 1989 DMA provided vested, substantive rights protected by one
provision of the Ohio Constitution. Corban at ¶ 32-35. (Response to Northam and
Lawlis MSJ at 5). Appellees, however, point out that Appellants repeatedly insert their
own language into the Corban decision, referring to their characterization of 1989
DMA’s creation of a “conclusive presumption of abandonment and ownership, and
related cause of action” noting that the Corban decision only referred to a “conclusive
presumption of abandonment” –not ownership—that “was only an evidentiary device
that applied to litigation seeking to quiet title to a dormant mineral interest” – not a
substantive property right as Appellants assert. Corban at ¶ 26. (Northam & Lawlis
Response to Pltf. MSJ at 3; Chesapeake Response to Pltf. MSJ at 4). In addition,
Corban noted that the “General Assembly has not divested the surface holder of a right
to abandoned mineral interests that accrued prior to the effective date of the [2006
DMA], but rather, it modified only the method and procedure by which the right is


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recognized and protected.” Corban at ¶ 35. The Corban Court stated “evidentiary rules
(such as the conclusive presumption established by the 1989 law) are procedural in
nature, and therefore, changing them does not alter a vested substantive right.” Corban
at ¶ 35, citing Ackison v. Anchor Packing Co., 120 Ohio St.3d 228, 2008-Ohio-5243,
897 N.E.2d 1118, ¶ 29.
       {¶30} This Court recently overruled this same constitutional argument in
accordance with Corban, in Lower Valley Farm, LLC v. Croskey, et al., 7th Dist. Nos. 16
HA 0010, 16 HA 0011, 16 HA 0012, 2018-Ohio-814, ¶ 31, stating:

       It is clear from the Ohio Supreme Court’s characterization, that a
       conclusive presumption is neither a property right nor a vested substantive
       right. It is simply an evidentiary device used in litigation. Therefore, any
       modification to, or “taking” of, the presumption cannot be held to be
       unconstitutional as alleged by Lower Valley.

       {¶31} The Fifth District has previously dismissed the argument that “prior to
Corban, vested rights were created in property owners and that taking those vested
rights away constitutes an unconstitutional taking.” Wendt, et al. v. Dickerson, et al., 5th
Dist. No. 2017 AP 08 0024, 2018-Ohio-1034, ¶ 29, held that in accordance with the
majority’s rationale in Corban, the General Assembly did not divest a surface holder of a
right to abandoned minerals accrued prior to June 30, 2006. The Corban majority found
the 1989 DMA was not self-executing and did not automatically transfer ownership of
dormant mineral rights by operation of law because a surface holder was required to
commence a quiet title action seeking a decree that the dormant mineral interest was
deemed abandoned. At most, the 1989 DMA created an evidentiary presumption to be
applied in a quiet title action that these rights would vest if certain conditions were not
proven by the mineral owner. The Wendt court explained that even if the appellants in
that case were successful in arguing that the 1989 DMA could have conferred some
right to them following the use of the evidentiary presumption, their due process rights
were not violated. Property rights in the Appellants never vested, since their action
before the trial court was not filed prior to the effective date of the 2006 DMA. Id. at ¶
33. The court also stated that the 2006 DMA merely modified a remedial right, not a


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substantive right, and did not violate the Takings Clause. Id. at ¶ 35. Since no right
was vested, no unconstitutional “taking” could occur. Similarly here, the Appellants’
case before the trial court was not initiated prior to the effective date of the 2006 DMA
as it was filed in 2013. Appellants, like the Wendt appellants, had “at most, a contingent
right that never vested.” Id.
       {¶32} Thus, based on all of the above, Appellants’ first and second assignments
of error are without merit and the judgment of the trial court is affirmed.



Donofrio, J., concurs.

Waite, P. J., concurs.




Case No. 17 CO 0012
[Cite as Hickman v. Consolidation Coal, 2019-Ohio-492.]




        For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed
against the Appellants.
        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.



                                       NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
