[Cite as Stalder v. Bucher, 2019-Ohio-936.]




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

                                     DAVID STALDER, ANO.,

                                         Plaintiffs-Appellees,

                                                  v.

                                   JOHN R. BUCHER ET AL.,

                                      Defendants-Appellants.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 17 MO 0017


                                    Civil Appeal from the
                        Court of Common Pleas of Monroe County, Ohio
                                     Case No. 2013-234

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                            JUDGMENT:
                                             Reversed
                                        Judgment for Appellants



 Atty. Richard A. Yoss, Atty. Ryan M. Regel, Yoss Law Office, 122 North Main Street,
 Woodsfield, Ohio 43793, for Plaintiffs-Appellees, and
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 Atty. Scott D. Eickelberger, Atty. William J. Taylor, Atty. David J. Tarbert, Atty. Ryan
 H. Linn, Kincaid, Taylor & Geyer, 50 North Fourth Street, Zanesville, Ohio 43702, for
 Defendants-Appellants.

                                           Dated:
                                       March 13, 2019

 Donofrio, J.

          {¶1}   Defendants-appellants, John R. Bucher, Jan Bucher Carmichael, Brian
Castilow, Henry Carter Castilow, Ann Sharon Castilow, Fred L. May, Dale L. Binkley,
Elizabeth Miller, Michael Vreeland, and Susan Leach Swisher, appeal the judgment of
the Monroe County Common Pleas Court granting summary judgment in favor of
plaintiffs-appellees, David and Sherrie Stalder, on their quiet title action concerning
mineral rights.
          {¶2}   In 1946, Godfrey Winkler conveyed 110.25 acres of real property (the
property) to his daughter Anna Winkler. The deed from Godfrey to Anna contained the
reservation “[e]xcepting and reserving therefrom all oil and gas in the underlying said
premises.” (First Amended Complaint, Exhibit B). Godfrey passed away intestate in
1947. Anna and her six siblings each inherited an equal 1/7 share of the oil and gas
rights.
          {¶3}   In 1955, Anna passed away intestate and without children. As such, Anna’s
rights in the surface property and her share of the oil and gas rights went to her siblings.
This meant that Anna’s siblings now each owned an equal 1/6 share of the property’s
surface and oil and gas interests. Appellants are Anna’s siblings’ heirs.
          {¶4}   In 1956, Anna’s siblings conveyed the property by quit claim deed to Glen
and Juanita Stalder. The 1956 deed contained the following reservation:

          But excepting and reserving, however, unto the grantors, their heirs and
          assigns, all of the oil, gas, coal and all other minerals of a similar or
          dissimilar nature on, within and underlying the above three tracts of land,
          together with all of the leasing and mining rights and privileges belonging
          thereto.

(First Amended Complaint, Exhibit C).


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       {¶5}   In 2001, Glen and Juanita deeded the property to appellees. On May 15,
2013, appellees filed an affidavit pursuant to R.C. 5301.252. This affidavit declared that
appellants had abandoned their interest in the mineral rights of the property and that, due
to the self-executing nature of the 1989 Ohio Dormant Mineral Act (DMA), the mineral
rights vested in appellees. In response to the affidavit, appellants filed a claim to preserve
the mineral rights to the property pursuant to the 2006 DMA.
       {¶6}   On May 28, 2013, appellees filed this quiet title action seeking a declaratory
judgment that appellants’ mineral rights in the property were abandoned. Appellees
subsequently filed a motion for summary judgment arguing that because the mineral
rights vested before the 2006 DMA became effective, the 1989 DMA applied and
appellants’ claims to the mineral rights under the property were abandoned. In the
alternative, appellees argued that appellants’ mineral rights were extinguished pursuant
to the Marketable Title Act (MTA). The trial court granted appellees’ motion holding that
the mineral rights vested in appellees pursuant to the 1989 DMA. The trial court did not
address the 2006 DMA or the MTA.
       {¶7}   Appellants appealed to this court. In Stalder v. Bucher, 7th Dist. No. 14 MO
0010, 2017-Ohio-725, we reversed the trial court’s judgment and held that, pursuant to
Corban v. Chesapeake Exploration, L.L.C., 149 Ohio St.3d 512, 2016-Ohio-5796, 76
N.E.3d 1089, the 2006 DMA applied to any action filed after June 30, 2006. Stalder at ¶
10-12. Because the trial court made no ruling concerning the 2006 DMA or the MTA, we
remanded the action for further proceedings.
       {¶8}   On remand, both parties filed reciprocal motions for summary judgment.
Appellees argued that the MTA applied and extinguished any interest appellants had in
the property, including mineral interests. Appellants argued that the 2006 DMA applied
and that appellees did not follow the proper procedure to declare the mineral interest
abandoned.
       {¶9}   In a judgment entry dated August 29, 2017, the trial court granted appellees’
motion for summary judgment holding that appellants’ interest in the property’s minerals
was extinguished pursuant to the MTA. Appellants timely filed this appeal on September
28, 2017. Appellants now raise two assignments of error.
       {¶10} Appellants’ first assignment of error states:



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              THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
       PLAINTIFF-APPELLEES’          MOTION       FOR    SUMMARY        JUDGMENT
       PURSUANT TO THE MARKETABLE TITLE ACT AS THE 2006 DMA IS
       THE    SPECIFIC      STATUTE        THAT     PROPERLY        CONTROLS        A
       LANDOWNER’S         ABILITY    TO    EXTINGUISH       SEVERED       MINERAL
       INTERESTS.

       {¶11} Appellants argue that the trial court erred when it applied the MTA in its
ruling on appellees’ motion for summary judgment. Appellants argue that, pursuant to
Corban, the 2006 DMA applies to all cases concerning mineral rights, not the MTA.
       {¶12} An appellate court reviews a trial court’s summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v.
Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for
summary judgment is properly granted if the court, upon viewing the evidence in a light
most favorable to the nonmoving party, determines that: (1) there are no genuine issues
as to any material facts; (2) the movant is entitled to judgment as a matter of law, and (3)
the evidence is such that reasonable minds can come to but one conclusion and that
conclusion is adverse to the opposing party. Civ. R. 56(C); Byrd v. Smith, 110 Ohio St.
3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.
       {¶13} Summary judgment is appropriate when there is no genuine issue as to any
material fact. A “material fact” depends on the substantive law of the claim being litigated.
Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d, 598, 603, 662 N.E.2d 1088 (8th
Dist. 1995), citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986).
       {¶14} Pursuant to the MTA, a person who has an unbroken chain of title of record
to any interest in land for 40 years or more has a marketable record title to such interest.
R.C. 5301.48. A “marketable record title” is defined as “a title of record, as indicated in
section 5301.48 of the Revised Code, which operates to extinguish such interests and
claims, existing prior to the effective date of the root of title, as are stated in section
530.1.50 of the Revised Code.” R.C. 5301.47(A). “Root of title” is defined as “that
conveyance or other title transaction in the chain of title of a person, purporting to create
the interest claimed by such person, upon which he relies as a basis for the marketability


Case No. 17 MO 0017
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of his title, and which was the most recent to be recorded as of a date of forty years prior
to the time when marketability is being determined.” R.C. 5301.47(E). The effective date
of the root of title is the date it was recorded. R.C. 5301.47(E).
       {¶15} On December 13, 2018, the Ohio Supreme Court released its opinion in
Blackstone v. Moore, Slip Opinion No. 2018-Ohio-4959.                In Blackstone, the Ohio
Supreme Court applied the MTA and concluded that an oil and gas royalty right in real
property was preserved.
       {¶16} The MTA does not differentiate between different types of interests; it
applies to all interests. Pollock v. Mooney, 7th Dist. No. 13 MO 9, 2014-Ohio-4435, ¶ 21.
Therefore, the MTA can be used to extinguish or preserve oil, gas, and mineral interests.
       {¶17} Likewise, the 2006 DMA can be used to preserve oil, gas, and mineral
interests or to have those interests declared abandoned. See generally Greer v. Frye,
7th Dist. No. 14 BE 0032, 2017-Ohio-4035.
       {¶18} Recently, this court, citing Blackstone, found that an oil and gas royalty
interest is subject to both the MTA and the DMA. Hickman v. Consolidation Coal Co., 7th
Dist. No. 17 CO 0012, 2019-Ohio-492, ¶ 24. In that case, we noted that the oil and gas
interest at issue was recorded before the enactment of the 2006 DMA and before the
appellants became the surface owners of the property at issue. Id. at ¶ 25. The same is
the case here. The oil and gas interest at issue was recorded in 1946, long before the
2006 DMA was enacted and long before appellants became the surface owners of the
property in 2001.
       {¶19} Because an oil and gas interest is subject to both the MTA and the DMA,
the trial court did not err in finding the MTA applicable in this case.
       {¶20} Accordingly, appellants’ first assignment of error lacks merit and is
overruled.
       {¶21} Appellants’ second assignment of error states:

              NOTWITHSTANDING ASSIGNMENT OF ERROR NO. 1, THE
       TRIAL COURT ERRED AS A MATTER OF LAW IN HOW IT APPLIED THE
       MARKETABLE TITLE ACT.




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       {¶22} Appellants alternatively argue that the trial court incorrectly applied the MTA
when it declared their mineral interests extinguished.
       {¶23} Appellants raise two arguments within this assignment of error. Because
their second argument is dispositive, we will only address the second argument.
       {¶24} Appellants argue that an exception to the MTA found in R.C. 5301.49(A)
preserves their mineral interests.
       {¶25} R.C. 5301.49(A) provides that record marketable titles are subject to:

       All interests and defects which are inherent in the muniments of which such
       chain of record title is formed; provided that a general reference in such
       muniments * * * to * * * interests created prior to the root of title shall not be
       sufficient to preserve them, unless specific identification be made therein of
       a recorded title transaction which creates such * * * interest; and provided
       that possibilities of reverter, and rights of entry or powers of termination for
       breach of condition subsequent, which interests are inherent in the
       muniments of which such chain of record title is formed and which have
       existed for forty years or more, shall be preserved and kept effective only in
       the manner provided in section 5301.51 of the Revised Code.

       {¶26} The Ohio Supreme Court set out a three-step inquiry as specified in R.C.
5301.59(A):

       (1) Is there an interest described within the chain of title? (2) If so, is the
       reference to that interest a “general reference”? (3) If the answers to the
       first two questions are yes, does the general reference contain a specific
       identification of a recorded title transaction?

Blackstone, 2018-Ohio-4959, at ¶ 12. If, however, the answer to the second question is
no and the reference is instead a specific reference, then there is no need to proceed to
the third prong. Id. at ¶ 15. In the case of a specific reference, the exception in R.C.
5301.59(A) applies and the interest is preserved.
       {¶27} Because R.C. 5301.59 does not define the terms “general” and “specific,”
the Blackstone Court applied the ordinary meanings of the terms. The Court described


Case No. 17 MO 0017
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“general” as being “‘marked by broad overall character without being limited, modified, or
checked by narrow precise considerations: concerned with main elements, major matters
rather than limited details, or universals rather than particulars: approximate rather than
strictly accurate.’” Id. at ¶ 13, quoting Webster's Third New International Dictionary 944
(2002). The Court described “specific” as being “‘characterized by precise formulation or
accurate restriction (as in stating, describing, defining, reserving): free from such
ambiguity as results from careless lack of precision or from omission of pertinent matter.’”
Id. at ¶ 14, quoting Webster's Third New International Dictionary at 2187. The Court
pointed out that if a reference is specific, it is not a general reference. Id.
       {¶28} The 1956 deed, contains the following mineral right reservation:

               But excepting and reserving, however, unto the grantors, their heirs
       and assigns, all of the oil, gas, coal and all other minerals of a similar or
       dissimilar nature on, within and underlying the above three tracts of land,
       together with all of the leasing and mining rights and privileges belonging
       thereto.

(First Amended Complaint, Exhibit C).
       {¶29} Immediately preceding the above reservation, the 1956 deed also contains
the following reference to the prior deed and prior owners of the property at issue:

       And being the same premises that were conveyed to Anna S. Winkler by
       Godfrey Winkler, widower, by deed dated January 18, 1946, and recorded
       in the recorder’s office of Monroe County, Ohio, in deed book no. 118, at
       page 201, as instrument number 78263. The said Anna S. Winkler having
       heretofore died intestate, left as her heirs at law, with the respective
       spouses of such of them as are married, the grantors herein.

(First Amended Complaint, Exhibit C).
       {¶30} These provisions satisfy R.C. 5301.49(A). The answer to the first question
is yes: the 1956 deed that constitutes the root of title states that it is subject to the oil,
gas, and mineral reservation. Thus, we must consider whether the reference is general
or specific.


Case No. 17 MO 0017
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       {¶31} The reference here is not a “general reference.” Instead, it meets the
definition of a specific reference as set out by Blackstone. The reference to the interest
includes details and particulars about the interest in question. It describes what type of
interest is created, that being “all of the oil, gas, coal and all other minerals of a similar
nature on, within and underlying” the three specifically described tracts of land. It also
specifies that these are the same premises conveyed by Godfrey Winkler to Anna Winkler
by deed dated January 18, 1946. It also lists the specific deed book and page numbers
where the original reservation can be found. Considering all of the above details that
describe and define the reference, we can conclude that the reference “‘is free from such
ambiguity as results from careless lack of precision or from omission of pertinent matter.’”
Blackstone, at ¶ 14, quoting Webster's Third New International Dictionary at 2187. In
other words, the reference is specific.
       {¶32} Because the reference to appellants’ interest is a specific reference, our
inquiry ends here. The exception in R.C. 5301.59(A) applies and the interest is preserved.
       {¶33} Appellants’ interest was sufficiently preserved per the terms of the MTA.
Thus, the trial court erred when it extinguished appellants’ interest because reference to
the reserving deed was sufficiently specific.
       {¶34} Accordingly, appellants’ second assignment of error has merit and is
sustained.
       {¶35} For the reasons stated above, the trial court’s judgment is hereby reversed.
Judgment is entered for appellants preserving the mineral interest in their favor.




Waite, P. J., concurs.

Robb, J., concurs.




Case No. 17 MO 0017
[Cite as Stalder v. Bucher, 2019-Ohio-936.]




         For the reasons stated in the Opinion rendered herein, appellants’ first
 assignment of error is overruled. Appellants’ second assignment of error is sustained.
 It is the final judgment and order of this Court that the judgment of the Court of Common
 Pleas of Monroe County, Ohio, is reversed and judgment is entered for appellants
 preserving the mineral interest in their favor. Costs to be taxed against Appellees.


         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.
