[Cite as Sheba v. Kautz, 2017-Ohio-7699.]
                            STATE OF OHIO, BELMONT COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


GEORGE SHEBA et al.,                         )    CASE NO. 15 BE 0008
                                             )
        PLAINTIFFS-APPELLEES,                )
                                             )
VS.                                          )    OPINION
                                             )
PATRICIA L. KAUTZ et al.,                    )
                                             )
        DEFENDANTS-APPELLANTS.               )

CHARACTER OF PROCEEDINGS:                         Civil Appeal from the Court of Common
                                                  Pleas of Belmont County, Ohio
                                                  Case No. 13 CV 399

JUDGMENT:                                         Affirmed.

APPEARANCES:

For Plaintiffs-Appellees:                         Atty. Melanie Morgan Norris
                                                  Atty. Michelle Lee Dougherty
                                                  Atty. Timothy McKeen
                                                  Steptoe & Johnson PLLC
                                                  1233 Main Street, Suite 3000
                                                   P.O. Box 751
                                                  Wheeling, West Virginia 26003-0751

For Defendant-Appellant:                          Atty David K. Schaffner
                                                  Schaffner Law Offices, Co., L.P.A.
                                                  132 Fair Avenue, NW
                                                  New Philadelphia, Ohio 44663


JUDGES:

Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                  Dated: September 18, 2017
[Cite as Sheba v. Kautz, 2017-Ohio-7699.]
ROBB, P.J.


        {¶1}    Defendants-Appellants Patricia Kautz, et al. appeal the decision of the
Belmont County Common Pleas Court granting summary judgment in favor of
Plaintiffs-Appellees George Sheba, et al. The trial court’s decision finding the mineral
interest was abandoned under the 1989 version of the Dormant Mineral Act cannot
be upheld due to intervening precedent from the Ohio Supreme Court. However, the
trial court alternatively held the grantor in an 1848 deed did not reserve oil and gas
interests as the use of the term “mineral” in the reservation showed the intent of the
parties to the deed was to reserve coal and other mined minerals, not migratory
minerals.
        {¶2}    The grant of summary judgment is affirmed based upon: the Supreme
Court’s Detlor holding which found an 1890 deed did not transfer oil and gas interests
when it transferred coal and other minerals; the age of the deed in this case which
was executed over 40 years earlier than the deed in Detlor; the language in the deed
as to mining from adjacent property; and the lack of evidence suggesting the parties
to the deed contemplated the inclusion of oil and gas as minerals in this Belmont
County locality in 1848.
                                 STATEMENT OF THE CASE
        {¶3}    In 1848, Thomas and Sophia Day (hereinafter Day) executed a deed
transferring their Belmont County property to Christian Anshutz with the following
reservation:
        Said Day however expressly reserves to himself his heirs and assigns
        the sole and exclusive right to all the mineral & coal lying under
        the tract of land above described with the right & privilege to mine
        the same from his land on the East side thereof, excepting a parcel
        [11.5 poles wide on the South side] the said Anshutz and his heirs &
        assigns are to have in fee simple the entire mineral and coal privilege
        under the said last mentioned tract [re-describing the 11.5 pole strip]
        also the land above said coal & mineral — The meaning & interest of
        the above exception is to reserve the coal and mineral privileges
                                                                                                    -2-

        under the whole of the above described tract of land, to the said Day
        his heirs & assigns excepting only [the 11.5 pole strip]; but the said Day
        his heirs & assigns are not to enter upon any part of the same to mine
        for said coal & mineral, but may enter [ ? 1] under only from his own
        land on the East and Northeast side thereof. To have and to hold the
        above tract of land with all the appurtenances thereof excepting as
        above exception * * *. (Emphasis added.)
        {¶4}    Mr. Sheba owns the property Day transferred in 1848 subject to the
above reservation. On May 14, 2013, Mr. Sheba executed an oil and gas deed
granting Ridgetop Resources, LLC an undivided interest in certain property, including
210 acres subject to the Day reservation.                   Mr. Sheba published a notice of
abandonment of the Day mineral interest on July 24, 2013 and filed an affidavit of
abandonment on September 3, 2013. An attorney for Mrs. Kautz and three other
heirs of Day filed a claim to preserve the mineral interest on September 23, 2013.
        {¶5}    In October 2013, Mr. Sheba and Ridgetop Resources (hereinafter
Appellee) filed a complaint against the four heirs (hereinafter Appellant). A second
amended complaint added more defendants in May 2014. In seeking declaratory
judgment and quiet title, the complaint set forth four claims: (1) the 1848 reservation
did not reserve title to oil and gas under the property; (2) the oil and gas interest was
abandoned under the 1989 version of the Dormant Mineral Act (DMA) due to the lack
of a savings event; (3) the oil and gas interest was abandoned under the 2006
version of the DMA due to the lack of a savings event and the failure of the holder to
file a claim to preserve within 60 days of the publication of the notice of
abandonment; and (4) adverse possession of the oil and gas interest. As to the
adverse possession claim, the complaint stated Mr. Sheba actively leased the oil and
gas interest since 1976, including leases recorded in 1979, 2005, and 2011.


1  The deed is handwritten. This mystery term may be “& leafe” (or “leaf”) representing the word
“leave” based on: it is the opposite of “enter” which was used just before the mystery word; it would
thus define the grantor’s right to “enter & leave under only from his own land”; and this corresponds to
a typical deed reference to the means of ingress and egress. Or, the mystery term may be “& pass”
(as translated in a later deed transferring the land to Mr. Sheba).
                                                                                     -3-

      {¶6}    Appellant filed an answer asserting the Days did reserve the oil and gas
under the property, the 1989 version of the DMA was inapplicable and
unconstitutional, the 2006 version of the DMA applied, the notice of abandonment
was improper, a claim to preserve was filed, and adverse possession did not occur.
A counterclaim was filed seeking quiet title and damages for trespassing and
conversion.
      {¶7}    Appellee filed a motion for summary judgment on the first three counts
arguing: the 1848 reservation did not include oil and gas; the mineral interest was
automatically abandoned under the 1989 DMA; and the mineral interest was
abandoned under the 2006 DMA. Appellant filed a memorandum in opposition, and
Appellee filed a reply.     The Ohio Attorney General intervened to support the
constitutionality of the 1989 version of the DMA. On January 20, 2015, the trial court
granted the Attorney General’s motion for partial summary judgment and ruled the
1989 DMA was not unconstitutional.
      {¶8}    On January 26, 2015, the trial court granted summary judgment in favor
of Appellee. As to the first claim, the trial court found the two references to “mining”
in the 1848 reservation demonstrated the intent to reserve only coal and other
minerals that are mined rather than migratory minerals such as oil and gas. The trial
court quoted the following passage from the Ohio Supreme Court’s 1898 Detlor case:
“There is nothing to show that it was the intention of the parties that oil should be
included in the word ‘minerals,’ and the easements granted, in connection with the
mining right, are not applicable to producing oil, and show that oil was not intended to
be included in the conveyance.” Detlor v. Holland, 57 Ohio St. 492, 504, 49 N.E.
690, 693 (1898) (if the intent was to reserve oil and gas, “apt words” to express this
intention would have been used in the reservation).
      {¶9}    As to the claim set forth under the 1989 DMA, the trial court concluded
abandonment was automatic where no savings event occurred within the twenty-year
look-back window, noting Appellant admitted there were no savings events. The
court reiterated its prior decision finding the 1989 DMA was not unconstitutional. As
to the claim set forth under the 2006 DMA, the trial court stated: “any discussion of
                                                                                        -4-

RC. 5301.56, effective June 30, 2006 is moot in that any oil and gas interests which
the Defendants may have claimed would have been abandoned as of March 22,
1992” under the 1989 DMA. Appellant filed a timely notice of appeal.
              ASSIGNMENTS OF ERROR ONE & TWO: 1989 DMA
       {¶10} Appellant’s first two assignments of error provide:
       “The trial court erred in applying the 1989 version of the Ohio Dormant Mineral
Act to the subject case.”
       “The trial court erred in determining that the 1989 Dormant Mineral Act
‘automatically’ vested the mineral interests in the surface owners.”
       {¶11} The Ohio Supreme Court ruled the 1989 DMA was not self-executing
and did not result in automatic abandonment of a mineral interest.           Albanese v.
Batman, 148 Ohio St.3d 85, 2016-Ohio-5814, 68 N.E.3d 800 ¶ 17-18, citing Corban
v. Chesapeake Exploration, L.L.C., 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d
1089. Because the complaint seeking abandonment of the mineral interest was filed
after the 2006 amendments to the Dormant Mineral Act, the Supreme Court’s holding
in Corban is dispositive of these assignments of error. See Albanese, 148 Ohio St.3d
85 at ¶ 16. In other words, at the time the 2013 complaint was filed, the 1989 DMA
could no longer be applied.       Consequently, both parties agree the trial court’s
decision finding the mineral interest was automatically abandoned under the 1989
DMA was erroneous and these assignments of error have merit.
                    ASSIGNMENT OF ERROR NUMBER THREE
       {¶12} Appellant’s third assignment of error contends:
       “The trial court erred in finding that the language ‘all the minerals and coal’ in a
reservation did not include Oil and Gas.”
       {¶13} The purpose of contract or deed construction is to discover and
effectuate the intent of the parties, which is presumed to reside in the language they
chose to use in their agreement. Graham v. Drydock Coal Co., 76 Ohio St.3d 311,
313, 667 N.E.2d 949 (1996) (coal reservation found not to include right to strip-mine
where deed used language peculiarly applicable to deep mining and surface
integrity). “Extrinsic evidence is admissible to ascertain the intent of the parties when
                                                                                    -5-

the contract is unclear or ambiguous, or when circumstances surrounding the
agreement give the plain language special meaning.” (Emphasis added.) Id., citing
Shifrin v. Forest City Ent., Inc., 64 Ohio St.3d 635, 638, 597 N.E.2d 499 (1992).
      {¶14} The parties contest the trial court’s application of the Ohio Supreme
Court’s holding in Detlor to this case. Appellant believes the trial court improperly
focused on the deed’s reference to “mining” to impute an intent to reserve only coal
and minerals that are mined as opposed to migratory minerals such as oil and gas.
Appellant relies on this court’s Coldwell case, the Fourth District’s Jividen and
Wiseman cases, and the Fifth District’s Hardesty case, which interpreted the phrase
“other minerals” as conveying oil and gas (under the circumstances presented in
those cases). Appellant focuses on the word “all” in the reservation clause “all the
mineral and coal” and urges this is equivalent to saying “every mineral” or “every part
of the mineral,” citing Black’s Law Dictionary and Merriam-Webster Dictionary.
Appellant also states the deed’s use of the word “and” in “all the mineral and coal” or
“the coal & mineral privileges” shows an intent to retain more than coal. As to this
latter argument, the trial court did not hold the deed only conveyed coal, and
Appellee did not argue such a theory; the theory was the deed conveyed only non-
migratory minerals capable of being mined.
      {¶15} Appellee responds the trial court correctly applied the holding in Detlor
to the facts of this case involving a deed executed 42 years before the deed
interpreted in Detlor.   Appellee states that, as in Detlor, there was restrictive or
limiting language in the 1848 deed (where it twice said “to mine”), which indicated the
intent to reserve only coal and solid minerals capable of being mined, not oil and gas.
Appellee argues the Hardesty and Wiseman cases are distinguishable (as those
deeds had no qualifying or limiting words) and cites two other Fifth District cases,
Muffley and Gordon (where the deed’s use of the word “minerals” was not found to
include oil and gas). Appellee distinguishes this court’s Coldwell case and the Fourth
District’s Jividen case, where deeds contained “surface only” language.
      {¶16} Appellee also notes deed construction involves the intention of the
parties at the time of execution, which in this case was 1848. Appellee emphasizes
                                                                                                    -6-

1848 pre-dated the development of oil and gas in Ohio, citing Ogline, Black Gold: An
Oil and Gas Primer for Estate Planners, 20 Ohio Prob. L.J. 31 (2009), which states:
“The first commercial exploration for oil in Ohio took place in 1860 when a well was
drilled in Washington County. Natural gas production followed in 1884.”2
        {¶17} In general, minerals include oil and gas. See, e.g., Ohio Constitution,
Art. II, Section 36 (allowing laws to be passed “to provide for the regulation of
methods of mining, weighing, measuring, and marketing coal, oil, gas, and all other
minerals”); R.C. 5301.56(A)(4) (defining “mineral” for the DMA). This was also true,
in a broad sense, during the time frame pertinent in the Supreme Court’s Detlor case.
See Detlor v. Holland, 57 Ohio St. 492, 504, 49 N.E. 690 (1898). See also Kelly v.
Ohio Oil Co., 57 Ohio St. 317, 49 N.E. 399 (1897), syllabus ¶ 1 (petroleum oil is a
mineral and is part of the realty while it is in the earth, even though it is migratory).
The Detlor Court construed the following language in an 1890 Perry County deed:
        hereby grant, bargain, sell, and convey to the said Michael L. Deaver,
        his heirs and assigns, forever, all the coal of every variety, and all the
        iron ore, fire clay, and other valuable minerals, in, on, or under the
        following described premises: * * *; together with the right in perpetuity
        to the said Michael L. Deaver, or his assigns, of mining and removing
        such coal, ore, or other minerals; and the said Michael L. Deaver, or his
        assigns, shall also have the right to the use of so much of the surface of
        the land as may be necessary for pits, shafts, platforms, drains,
        railroads, switches, side tracks, etc., to facilitate the mining and removal
        of such coal, ore, or other minerals, and no more.


2  According to this source, oil was first accidentally discovered in Ohio in 1814 in a saltwater well
drilled in Noble County. See Ogline, Black Gold. “Because the oil well was not developed, it was not
until several decades later in 1859 that the more famous oil ‘discovery’ occurred in a commercial oil
field in the Allegheny headwaters of the Ohio River at Titusville [Pennsylvania].” Frost and Mitsch,
Resource Development and Conservation History along the Ohio River, 89 Ohio J. of Science 143,
148 (1989). Colonel Drake successfully drilled the first commercial oil well (or one of the first) in
America in 1859 in western Pennsylvania. Id. (to a depth of 69 feet). An ODNR publication states
William Jeffrey erected the first Ohio oil well in 1859 in Trumbull County soon after Drake’s discovery.
Oil and Gas Fields Map of Ohio, Ohio Department of Natural Resources, Division of Geological Survey
Map PG-2 (2004).
                                                                                    -7-

Detlor, 57 Ohio St. 492 at syllabus ¶ 1. The Supreme Court explained: “The words
‘other minerals,’ or ‘other valuable minerals,’ taken in their broadest sense, would
include petroleum oil; but the question here is, did the parties intend to include such
oil in the mining right?” Id. at 504. The Court concluded the language of this deed
conveying “other minerals” did not convey title to the oil and natural gas. Id. at
syllabus ¶ 1.
       {¶18} The Court set forth “familiar” rules of construction, such as construing
the grant most strongly against the grantor and considering the whole contract to
arrive at the meaning of any of its parts. “Terms are to be understood in their plain,
ordinary, and popular sense, unless they have acquired a particular technical sense
by the known usage of the trade. They are to be construed with reference to their
commercial and scientific import.” Id. at 503-504, quoting Barringer and Adams, Law
of Mines and Mining in the United States, 131. “This rule is of especial importance
when the question arises whether a specific mineral is included in a general
designation.” Detlor, 57 Ohio St. at 504, quoting Barringer and Adams, Law of Mines
and Mining in the United States, 131.
       {¶19} The Supreme Court explained the deed must be construed in the light
of oil developments in the vicinity of the property at the time the deed was drafted in
February 1890. Detlor, 57 Ohio St. at 502-503. The Court observed how oil was
produced in small quantities 10 to 20 miles away from the subject property, but
nothing indicated the parties knew of this fact. Id. at 503 (noting the grantor resided
in Wisconsin). The Court also pointed out: “The incidents here granted are all such
as are peculiarly applicable to the mining of minerals in place, and not to such as are
in their nature of a migratory character, such as oil or gas. Nothing is said about
derricks, pipe lines, tanks, the use of water for drilling, or the removal of machinery
used in drilling or operating oil or gas wells.” Id. The Court concluded:
       Taking all the terms of the conveyance in the light of the surrounding
       circumstances, and in view of the above rule of construction, and upon
       authority of the case of Dunham v. Kirkpatrick, 101 Pa. St. 36, we
       conclude that the title to the oil did not pass under said conveyance, but
                                                                                   -8-

       remained in the owner of the soil, and upon his death passed to his
       heirs. There is nothing to show that it was the intention of the parties
       that oil should be included in the word ‘minerals,’ and the easements
       granted, in connection with the mining right, are not applicable to
       producing oil, and show that oil was not intended to be included in the
       conveyance.    If it had been, apt words would have been used to
       express such intention.
Detlor, 57 Ohio St. at 504.
       {¶20} The case cited by the Ohio Supreme Court contains what is known as
Pennsylvania’s Dunham rule for private deed conveyances.             See Dunham v.
Kirkpatrick, 101 Pa. 36 (1882). Due to the Dunham rule, Pennsylvania applies a
rebuttable presumption the word “minerals” in a deed includes only metallic
substances and thus would not include oil and gas (unless the deed says otherwise).
Highland v. Commonwealth, 400 Pa. 261, 276-277, 161 A.2d 390 (1960) (the
presumption requires clear and convincing evidence to be rebutted). Pennsylvania
rejected the scientific and the commercial definition of minerals in favor of the
layman’s definition and maintained the definition (even after oil and gas became
more well-known as minerals) in order to abide by the established property law in the
state. See Butler v. Charles Powers Estate ex rel. Warren, 620 Pa. 1, 8-12, 65 A.3d
885 (2013). In other words, this rule applies in Pennsylvania even to new deeds.
       {¶21} Although the Ohio Supreme Court cited Dunham in Detlor, the Court
also instructed reviewing courts to consider the time (of deed execution) and locality
(of the property) to define minerals. In addition, the Ohio Supreme Court focused on
easement language in the deed particular to the mining of coal and hard minerals
and the corresponding lack of language relevant to the capture of oil and/or gas. We
review the Ohio appellate cases applying the principles in Detlor.
       {¶22} In Gordon, the plaintiff-grantor executed a 1902 Licking County deed
granting: “All the coal and other minerals under the surface” with a right “to enter
upon said land, make all excavations, drains, entries, and structures of whatever
nature as may be necessary to conveniently take out said minerals, with a right of
                                                                                   -9-

way over and across said land for the purpose of transferring said minerals from said
land, doing no unnecessary damage and injury to said property.” The Fifth District
quoted from Detlor, found the circumstances similar, and concluded the language did
not show intent to transfer oil and gas. Gordon v. Carter Oil Co., 19 Ohio App. 319,
321-323 (5th Dist.1924).
      {¶23} In Hardesty, the defendant executed a 1919 Holmes County deed
conveying “all the coal, clay and mineral rights.” (At the time, she was receiving
delay rentals under an oil and gas lease covering her property.) The grantee’s right
was conveyed in 1923, and the purchaser sued the original grantor claiming the oil
and gas was conveyed under the 1919 deed. The defendant testified the intent she
shared with the original grantee was that only non-migratory minerals were
transferred. The Fifth District found this testimony was barred by the parol evidence
rule. Hardesty v. Harrison, 6 Ohio Law Abs. 445, 446 (5th Dist.1928). The court then
applied the principle: “A grant without qualifying or limiting words of the minerals
underlying certain real estate will include oil and gas.” Id. The court concluded the
title to the oil and gas necessarily passed by the conveyance as oil and gas are
minerals and there is nothing in the language of the deed showing the parties
contemplated something less general than all substances legally cognizable as
minerals. Id. The court did not cite the Ohio Supreme Court’s Detlor case.
      {¶24} In Muffley, a 1960 deed reserved to the grantor “all minerals, clay, and
coal underlying the soil, subject only to the condition that the removal of said
minerals, clay, and coal shall be without damage to the surface of said land except to
provide air shafts and escape for mine water.”      The Fifth District noted it once
decided “a much more difficult case” involving Tuscarawas County deeds executed in
1882 and 1884 “containing non-specific mineral reservation” where the court
reviewed the date of the reservations and concluded they did not include oil and gas
due to the Ohio Supreme Court’s Detlor holding. Muffley v. M.B. Operating Co., Inc.,
5th Dist. No. CA-6910 (Oct. 27, 1986), citing Belden v. Thomas, 5th Dist. No. 1148
(Aug. 5, 1975). The Muffley court then concluded the 1960 grant did not include oil
                                                                                                    -10-

and gas and stated the grantor should have referred to oil and gas since these
substances were common in 1960.3 Id.
        {¶25} In Jividen, a 1910 deed said the purpose was to “convey the surface
only” and to “reserve all coal and other mineral, with the right to mine and haul same
through this and adjacent land” and “the right to sink air shaft on said land” and to
“extend their switch up the hollow.” Jividen v. New Pittsburg Coal Co., 45 Ohio App.
294, 295, 187 N.E. 124 (4th Dist.1933). The plaintiff argued there was no oil and gas
development in the immediate vicinity at the time the deed was signed, coal mining
was occurring, and the easements were consistent with coal mining. Id. at 295, 297
(the court noted there was some small oil and gas development in the vicinity). The
Fourth District mentioned: “The express rights to mine, haul through, sink air shaft,
and extend a switch, contained in the conveyance, are reservations not inconsistent
with the right to the use of the surface for the development of oil and gas.” Id. at 296.
In any event, the Fourth District concluded Detlor was inapplicable, focusing on the
deed’s “surface only” language to conclude oil and gas were reserved by the grantor.
Id. at 296-297 (finding the reservation of coal was not even necessary due to the
“surface only” language). See also Minnich v. Guernsey Sav. & Loan Co., 36 Ohio
App.3d 54, 57, 521 N.E.2d 489 (5th Dist.1987) (the 1883 deed did not only grant coal
as it limited the retained property to the “surface of all said lands”).                      Appellee
distinguishes such cases as they contain language regarding the surface.
        {¶26} In Wiseman, an 1894 Lawrence County deed excepted and reserved
“all the coal, iron-ore and other minerals” and “rights of ingress, egress, regress and
of way, and other necessary or convenient rights and privileges, in, upon, under and
over the same for the purpose of mining, removing, and taking away as well the coal,

3 This particular statement appears contradictory. Applying Detlor’s instruction to consider the timing
of the deed and the Court’s use of the lack of knowledge of oil in the area as a reason for not including
oil and gas in the reservation, one would think a 1960 deed would be construed as including oil and
gas because these minerals had become pervasive by that time. The rationale in Muffley construes
the time of execution against oil and gas when it was not known at the time (citing Detlor and Belden)
but then also construes the time of execution against oil and gas when it was known at the time.
Although the Muffley court did not expressly rely on it, we note the deed’s additional language, “shall
be without damage to the surface of said land except to provide air shafts and escape for mine water,”
which could be construed as limiting language.
                                                                                   -11-

iron-ore and on and underlying the said land as other coal, iron-ore and minerals.”
Wiseman v. Cambria Products Co., 61 Ohio App.3d 294, 296, 572 N.E.2d 759 (4th
Dist.1989). The Fourth District concluded the broad range of additional rights was
not limiting as in Detlor and would be applicable to oil and gas production as well as
coal. Id. at 299 (upholding summary judgment).
      {¶27} In Coldwell, this court set forth the language of two Columbiana County
deeds. One deed referred to “all the coal and other minerals” with “the right and
privilege to mine all of said coal without reservation or liability for damages that may
arise by reason of mining said coal or the operation of said mine or mines to the
surface” and “the right and privilege to the use of the necessary surface over said
coal for the purpose of erecting, constructing and maintaining the necessary air
shafts and air courses to ventilate mines for the removal of said coal and other
minerals.” Coldwell v. Moore, 7th Dist. No. 13 CO 0027, 2014-Ohio-5323, 22 N.E.3d
1097, ¶ 35. Another deed referred to “all the coal and other minerals”; “the right to
enter upon the surface of said premises with workmen to erect all necessary
buildings * * * for the carrying on of the business of mining and shipping coal and
other minerals”; and “the right to sink all necessary air shafts on said premises and of
building all railroad tracts and car switches necessary for said mining business, and
necessary roads to and from any mine or mines that may be opened and operated on
said premises.” Id. at ¶ 36.
      {¶28} After reviewing Detlor and holdings from the Fourth and Fifth Districts, it
was stated:    “Nothing in the language of these deeds shows that the parties
contemplated something less general than ‘other minerals.’ * * * Also, nothing in the
deeds is inconsistent with the development of oil and gas.” Id. at ¶ 43. This court
observed: “The term “minerals” has long been held to include oil and gas.” Id.
Appellant focuses on this portion of the decision.
      {¶29} Appellee, however, points out the Coldwell case then stated the most
important factor was deed language stating the plaintiffs were granted surface rights
only. Id., citing Jividen, 45 Ohio App. 294. This is distinguishable from the case at
bar. We also note the date of the deeds was not mentioned in the Coldwell case.
                                                                                      -12-

The age of the deed in this case, predating even the Supreme Court’s Detlor by 42
years, makes this case distinguishable from cases reviewing deeds executed in the
years after oil and/or gas was discovered in Ohio.
       {¶30} In the case at bar, Appellant states the use of “all” in the clause “all the
mineral & coal” is plain language requiring this court to include every possible
mineral. However, this is not the law under Detlor. The deed in Detlor also used “all”
which would have modified “other valuable minerals,” i.e., the deed conveyed “all the
coal of every variety, and all the iron ore, fire clay, and other valuable minerals.”
Appellant’s emphasis on the word (or symbol for) “and” between mineral and coal is
even less compelling.      There was no argument only coal was reserved.                As
aforementioned, the argument was this phrase conveyed coal and other non-
migratory minerals.
       {¶31} The Detlor holding suggests the more recent the deed, the more likely it
is oil and gas were intended to be included as minerals. The year the deed was
signed in the case at bar is much earlier than the deeds in any of the cited cases.
Detlor addressed an 1890 deed; this case involves an 1848 deed. The Supreme
Court focused on the lack of evidence supporting the position that oil and gas were
known in the area or anticipated in the transfer. As in Detlor, there is no indication oil
and gas were being produced in the immediate vicinity in 1848. Nor is there any
indication such substances were being produced in the general area or elsewhere.
Appellant’s response to summary judgment did not set forth evidence to distinguish
the case from Detlor, and Appellant did not show gas or oil was produced in Belmont
County or the general vicinity of this property in 1848.
       {¶32} In construing the deed in terms of the date of execution and vicinity, the
Detlor court also found it relevant that the easements granted in the deed were
“peculiarly applicable to the mining of minerals in place” rather than to minerals of a
migratory character, noting “nothing is said about derricks, pipe lines, tanks, the use
of water for drilling, or the removal of machinery used in drilling or operating oil or gas
wells.” Detlor, 57 Ohio St. at 503. Here, nothing is said about items relevant to oil
and gas. Still, the deed does not contain the particular easement language in Detlor,
                                                                                  -13-

where the deed referred to use of the surface “as may be necessary for pits, shafts,
platforms, drains, railroads, switches, side tracks, etc., to facilitate the mining and
removal of such coal, ore, or other minerals, and no more.”
       {¶33} Appellee states the reference to “mining” was part of the limiting
language in Detlor which was used to conclude the deed did not refer to migratory
minerals. The deed here has two references to the right to “mine,” which Appellee
construes as language limiting or restricting the word mineral. We note the holding:
“Unless the language of the conveyance by which the minerals are acquired repels
such construction, a severed mineral estate is considered to include those rights to
use of the surface as are reasonably necessary for the proper working of the mine
and the obtaining of the minerals.” Chesapeake Exploration, L.L.C. v. Buell, 144
Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, ¶ 23, quoting Quarto Mining Co. v.
Litman, 42 Ohio St.2d 73, 83, 326 N.E.2d 676 (1975). On the one hand, the word
“mine” was used by the recent Buell case in connection with an oil and gas case. On
the other hand, this would not affect the intent of the parties to the deed at the time
the deed was drafted.
       {¶34} Even if the word “mine” itself is not dispositive, the clauses containing
the word support Appellee’s position.       This case involves a conveyance with
language that “repels” a construction of the right to use the surface in any manner
reasonably necessary for obtaining all minerals. Specifically, the first reference to
mining is in the clause: “the right and privilege to mine the same from his land on the
East side thereof * * *.” This limits the right to mine from a separate parcel owned by
the grantor. One may ask how one could mine for oil or gas from a separate parcel
in the year 1848 (thus horizontal fracturing is not considered). The second reference
to mining states the grantor and his heirs and assigns “are not to enter upon any part
of the same to mine for said coal & mineral, but may enter & ___ under only from his
own land * * *.”
       {¶35} Considering the principles in Detlor, the much earlier deed in this case,
the lack of evidence that oil and gas production were contemplated at the time or
place of conveyance, and the state’s history of oil and gas production, this court
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overrules this assignment of error and upholds the trial court’s decision finding the
1848 deed did not reserve oil and gas interests.
                                  CONCLUSION
      {¶36} Due to recent Ohio Supreme Court rulings, the decision finding
automatic abandonment under the 1989 DMA was erroneous and the first two
assignments of error have merit.     However, the trial court’s alternative decision
(finding the 1848 deed did not reserve an oil and gas interest) was proper.
Appellant’s third assignment of error is therefore overruled. In accordance, the trial
court’s entry of summary judgment is affirmed.



Donofrio, J., concurs.

DeGenaro, J., concurs.
