[Cite as Farnsworth v. Burkhart, 2014-Ohio-4184.]

                            STATE OF OHIO, MONROE COUNTY

                                 IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


VIRGIL FARNSWORTH, et al.,                          )
                                                    )   CASE NO.     13 MO 14
        PLAINTIFFS-APPELLEES,                       )
                                                    )
VS.                                                 )   OPINION
                                                    )
JAMES BURKHART, et al.,                             )
                                                    )
        DEFENDANTS-APPELLANTS.                      )


CHARACTER OF PROCEEDINGS:                               Civil Appeal from Common Pleas Court,
                                                        Case No. 2012-133.


JUDGMENT:                                               Reversed.


APPEARANCES:
For Plaintiffs-Appellees:                               Attorney James Huggins
                                                        Attorney Daniel Corcoran
                                                        Attorney Kristopher Justice
                                                        424 Second Street
                                                        Marietta, Ohio 45750

For Defendants-Appellants:                              Attorney Mark Stubbins
                                                        59 North Fourth Street
                                                        P.O. Box 0488
                                                        Zanesville, Ohio 43702-0488


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                        Dated: September 22, 2014
[Cite as Farnsworth v. Burkhart, 2014-Ohio-4184.]
VUKOVICH, J.


        {¶1}    The mineral holders appeal the decision of the Monroe County
Common Pleas Court which ruled that they abandoned their mineral interest in the
surface owners’ property. In their first assignment of error, the mineral holders argue
that the trial court erred in finding they abandoned their mineral interests under the
1989 Dormant Mineral Act because:                   (1) that version no longer applies, (2) the
twenty-year look-back period is fixed rather than rolling; (3) reference to the original
reservation in a later surface transfer is a savings event; and (4) the 1989 version is
an unconstitutional taking of property without notice.
        {¶2}    Following the various prior holdings of this court we conclude:             (1)
under the holding in Walker, the 1989 DMA can still be applied; (2) under the holding
in Eisenbarth, the look-back period is fixed, not rolling; (3) under the holding in Dodd,
the reference to a prior mineral severance in a surface transfer deed is not a savings
event; and (4) under the holding in Walker, arguments on the constitutionality of the
1989 DMA are waived where not raised below. The second conclusion is dispositive
here as the minerals were originally severed within the fixed look-back period. There
was thus no abandonment under the 1989 DMA.
        {¶3}    In their second assignment of error, the mineral holders argue that the
trial court erred in alternatively holding that they abandoned their mineral interests
under the 2006 DMA as well. This court’s Dodd decision ruled that the mineral
holders’ timely claim to preserve after notice of abandonment prevented
abandonment under the 2006 DMA if the 1989 DMA does not apply. Accordingly,
the judgment of the trial court is reversed, and judgment is entered that the mineral
holders retain their mineral interests in the subject property.
                                  STATEMENT OF THE CASE
        {¶4}    In 1980, a deed was signed and recorded whereby Veronica Burkhart
conveyed 104 acres in Monroe County to the Belcastros. She reserved for herself
and her heirs and assigns all minerals under the premises along with the right to
enter and explore for same (and conveyed the right to free gas to the grantees). In
1988, the Belcastros deeded the property to Virgil and Theresa Farnsworth,
                                                                                    -2-

repeating the mineral reservation to the former grantor (and referencing the volume
and page number of the prior deed).
       {¶5}    When Veronica Burkhart died, her mineral rights were inherited by
seven heirs:     James, Dale, Ellis, Mark, Francis, and Glen Burkhart and Judy
Gallagher. Although Veronica died in 1995, the heirs did not apply for a certificate of
transfer until February 6, 2012.    The Monroe County Probate Court issued the
certificate of transfer on February 24, 2012. It was recorded in the Monroe County
Recorder’s Office on February 27, 2012.
       {¶6}    In the meantime, on February 22, 2012, the Farnsworths generated a
notice of abandonment (the first step in proceeding under the 2006 DMA), sending
notice to the seven mineral holders by certified mail, return receipt requested. This
notice of abandonment was served on the named holders as follows: February 24
(James, Ellis, and Francis), February 25 (Mark and Glen {signed for by his surviving
spouse as he died in 1996}), February 27 (Dale), and March 1 (Judy).
       {¶7}    On April 19, 2012, these holders recorded a timely claim to preserve
their mineral interests under the 2006 DMA. On April 23, 2012, the Farnsworths
recorded an affidavit of abandonment.       The Farnsworths then filed a complaint
seeking quiet title to the minerals upon a declaration that the Burkhart heirs
abandoned their mineral interests under both the 1989 and the 2006 DMA. Motions
for summary judgment motions were filed, and on July 16, 2013, the trial court
granted summary judgment in favor of the Farnsworths.
       {¶8}    The trial court stated that the former Dormant Mineral Act was self-
executing and could still be utilized for abandonment claims. The court then applied
a rolling look-back period and ascertained that there were no savings events from
June 30, 1986 to June 30, 2006 (described as the last day the former DMA was in
effect).   In so holding, the trial court stated that the 1988 deed transferring the
surface was not a savings event because it merely repeated the former grantor’s
prior mineral reservation.    The court concluded that the mineral interest was
abandoned and reunited with the surface under the 1989 DMA.
                                                                                      -3-

       {¶9}    In the alternative, the trial court concluded that there was also an
abandonment under the 2006 DMA as the holders did not show a savings event in
the twenty years preceding the date of the 2012 notice of abandonment. The court
found that any transfer in the probate court was not a savings event until it was
recorded in the recorder’s officer (and that this did not occur until after the notice of
abandonment was first served). The court also held that the mineral holders’ claim to
preserve was not a savings event but merely served to halt the statutory process of
abandonment and to require a lawsuit where the holder must show a savings event.
       {¶10} The Burkharts filed a timely notice of appeal.          They set forth two
assignments of error: one addresses the trial court’s application of the 1989 DMA,
and one addresses the trial court’s application of the 2006 DMA.
                ASSIGNMENT OF ERROR NUMBER ONE: 1989 DMA
       {¶11} Pursuant to the 1989 version of the Dormant Mineral Act, a mineral
interest held by a person other than the surface owner of the land subject to the
interest “shall be deemed abandoned and vested in the owner of the surface” if no
savings event occurred “within the preceding twenty years.”                Former R.C.
5301.56(B)(1)(c) (unless the mineral interest is (a) in coal or (b) held by the
government).
       {¶12} The six savings events are as follows: (i) the mineral interest has been
the subject of a title transaction that has been filed or recorded in the recorder’s
office, (ii) there has been actual production or withdrawal by the holder, (iii) the
holder used the mineral interest for underground gas storage; (iv) a mining permit
has been issued to the holder; (v) a claim to preserve the mineral interest has been
filed; or (vi) a separately listed tax parcel number has been created. Former R.C.
5301.56(B)(1)(c)(i)-(vi). Only the first savings event is at issue here.
       {¶13} The effective date of this statute was March 22, 1989. Division (B)(2)
provides that a mineral interest shall not be deemed abandoned on the grounds that
none of the circumstances in (B)(1) apply until three years from the effective date of
the statute.   Another section provides that a mineral interest may be preserved
indefinitely from being abandoned by the occurrence of any the savings events in
                                                                                    -4-

(B)(1)(c), including, but not limited to, successive filings of claims to preserve.
Former R.C. 5301.56(D)(1).
       {¶14} The Burkharts’ first assignment of error sets forth four distinct issues
related to the trial court’s application of the 1989 DMA, which will each be addressed
separately. This assignment of error provides:
       {¶15} “The Trial Court erred in applying the 1989 version of the Dormant
Mineral Act causing automatic abandonment of Appellants’ mineral interest when:
(1) at the time of filing the lawsuit the current version of Ohio Revised Code §5301.56
was in effect preventing application of the former statute, (2) application of 1989 Act
did not create a ‘rolling’ 20 year look back period, (3) reference to the mineral
exception preserved Appellants’ interest and/or (4) the taking of Appellants’ mineral
interest via an automatic abandonment without notice constitutes an unconstitutional
taking of property.”
                         APPLICABILITY OF FORMER DMA
       {¶16} The appellant mineral holders note that the 2006 enactment provided
that the prior version was repealed and the reenactment added, among other things,
that the notice of abandonment commences the twenty-year look-back period. They
contend that the law in effect at the time the complaint was filed is controlling and
thus only the 2006 DMA can be applied, urging that the 1989 DMA no longer exists.
The mineral holders cite LaSalle, which held that the applicable version of an
expungement statute is that which is in effect at the time the application to expunge
was filed.   See State v. LaSalle, 96 Ohio St.3d 178, 772 N.E.2d 1172 (2002)
(disposing of argument that applicable version was the new one that went into effect
after the expungement application was filed but before trial court ruled).
       {¶17} The surface owners respond that LaSalle is not on point here. They
assert that the 1989 DMA was self-executing as the mineral rights vest in the surface
owner automatically by operation of law upon the non-occurrence of a savings event
in the pertinent look-back period. They cite to the United States Supreme Court case
dealing with Indiana’s DMA, wherein the Court recognized that the mineral rights
                                                                                    -5-

automatically lapsed and reverted to the surface owner. Texaco v. Short, 454 U.S.
516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982).
      {¶18} The surface owners also cite R.C. 1.58(A), which provides that
reenactment does not affect the prior operation of a statute or affect a right acquired
or accrued under the prior version.      They conclude that unless the 2006 DMA
expressly stated that the 1989 version was no longer applicable, the change in law
did not erase the former DMA (adding that if the legislature had included such
language, it would have been an unconstitutional taking of a vested right).
      {¶19} This court has ruled that the 1989 DMA can still be used after the 2006
amendments because the prior statute was self-executing and the lapsed right
automatically vested back to the surface owner. Walker v. Shondrick-Nau, 7th Dist.
No. 13NO402, 2014-Ohio-1499 (fka Walker v. Noon).               See also Swartz v.
Householder, 7th Dist. Nos. 13JE24, 13JE25, 2014-Ohio-2359. The reasoning from
those cases is reiterated here.
      {¶20} As set forth above, the 1989 DMA provides that a mineral interest “shall
be deemed abandoned and vested in the owner of the surface” if no savings event
occurred within the look-back period. Former R.C. 5301.56(B)(1)(c). And, a mineral
interest shall not be “deemed abandoned” under division (B)(1) due to the lack of
savings events until three years from the effective date of the act. Former R.C.
5301.56(B)(2).
      {¶21} By way of comparison, the 2006 DMA provides that the mineral interest
will not become vested until the surface owner serves or publishes (if applicable) the
notice of abandonment on each holder and then, at least thirty but not more than
sixty days thereafter, records an affidavit of abandonment. R.C. 5301.56(E)(1)-(2).
The 2006 DMA further provides that if the mineral holder fails to timely respond under
the statute, the surface owner shall cause memorialization of the abandonment to be
recorded by the county recorder at which time, “the mineral interest shall vest in the
owner of the surface * * *” R.C. 5301.56(H)(2).
      {¶22} The United States Supreme Court has stated that Indiana’s DMA was
self-executing as it provided that the mineral interest shall be extinguished and the
                                                                                          -6-

ownership shall revert to the surface upon the non-occurrence of savings events
within the pertinent time period. Texaco, 454 U.S. 516. The Court also stated that
no individual notice was required before abandonment and no opportunity to cure
must be provided as the statute with a two-year grace period provided notice. Id.
(the only other required notice involved an opportunity to prove a savings events, not
to avoid any prior automatic abandonment).
       {¶23} In Walker, we pointed to R.C. 1.48 and 1.58. Pursuant to R.C. 1.58, the
amendment or repeal of a statute does not affect the prior operation of the state or
affect “any validation, cure, right, privilege, obligation, or liability previously acquired,
accrued, accorded, or incurred thereunder.”       A vested interest is a property right that
can be created by statute; it so completely and definitely belongs to a person that it
cannot be impaired or taken away without the person’s consent. State ex rel. Jordan
v. Industrial Comm., 120 Ohio St.3d 412, 2008-Ohio-6137, 900 N.E.2d 150, ¶ 9.
       {¶24} In rejecting a Carroll County trial court’s statement in Dahlgren v. Brown
Farm Properties, that any right acquired under the 1989 DMA was merely “inchoate,”
this court pointed out that the terms “inchoate” and “vested” are considered
opposites. Walker, 7th Dist. No. 13NO402 at ¶ 43. An inchoate right is a right that
has not fully developed, matured, or vested. Black’s Law Dictionary (9th Ed.2009)
(online). See also Bauman v. Hogue, 160 Ohio St. 296, 301, 116 N.E.2d 439 (1953).
       {¶25} In addition, a statute is considered prospective in its application unless
expressly made retrospective.         R.C. 1.48.      Without such express language
eliminating the rights under the old act, the amendments did not affect causes
already existing. See Bartol v. Eckert, 50 Ohio St.3d, 33 N.E. 294 (1893) (and if
there is an expression of intent, the statute will be constitutional only if it affects
merely remedial, not substantive, rights). See also Cadles of Grassy Meadows, II,
LLC v. Kistner, 6th Dist. No. L-09-1267, 2010-Ohio-2251 (new statute of limitations
did not apply to judgments that became dormant prior to enactment as no clear
expression of retroactive application, i.e. new statute enacted before revival action
was filed does not apply).
                                                                                        -7-

       {¶26} We also explained that the 2006 look-back did not expressly or even
implicitly make a statute retroactive. Swartz, 7th Dist. Nos. 13JE24, 13JE25, at fn. 2.
A look-back period was also a feature of the 1989 DMA. Under the 2006 DMA, the
notice of abandonment is the new trigger for the look-back, which item can only apply
prospectively because one could not file a notice of abandonment with the 2006 DMA
statutory effects and triggers before it was even created. In other words, the new
DMA instituted a new look-back initiator (the notice of abandonment) to be employed
prospectively in the future. Id.
       {¶27} As aforementioned, the 2006 DMA specifically deals with rights that
have not yet been deemed abandoned and vested. See R.C. 5301.56(E) (“Before a
mineral interest becomes vested under division (B) of this section in the owner of the
surface of the lands subject to the interest, the owner of the surface subject to the
interest shall do both of the following * * *”). It thus eliminated automatic vesting after
June 30, 2006 (imposing new enforcement obligations on the surface owner and
redrawing the savings event timeline).
       {¶28} But, this does not mean that it erased interests that were previously
deemed vested (merely because a suit had not yet been filed to formalize the
reverter).   See Swartz, 7th Dist. Nos. 13JE24, 13JE25 at ¶ 35. The most pertinent
definition of the word “deem” here would be: “to treat [a thing] as being something
that it is not, or as possessing certain qualities that it does not possess. It is a formal
word often used in legislation to create legal fictions * * *.” Garner, The Dictionary of
Modern Legal Usage, 254 (2d Ed.1995).
       {¶29} This court explained that the 2006 DMA contains no language
eliminating property rights that were previously expressly said to be vested, i.e. it
contains no statement that the new requirements for surface owners and the new
rights for mineral holders apply retrospectively. See Swartz, 7th Dist. Nos. 13JE24,
13JE25 at ¶ 34, citing Walker, 7th Dist. No. 13NO402 at ¶ 51.         It was decided that
absent express language eliminating the prior automatic abandonment and vesting of
rights under the 1989 DMA, the amendments do not affect causes already existing
(regardless of whether a suit is filed before or after the amendments). See id. We
                                                                                    -8-

concluded that it would be contrary to the plain language of the statute to hold that
the surface owner’s right to the abandoned mineral interests are inchoate even
though the statute expressly stated that the right vested upon the lack of a savings
event within the pertinent time period. Id.
       {¶30} This court thus concluded that when the 2006 version was enacted, any
mineral interest that was abandoned under the 1989 version stayed abandoned and
stayed vested in the surface owner. See Walker, 7th Dist. No. 13NO402 at ¶ 41 (and
once the mineral interest vested in the surface owner, it reunited with the surface
estate). Here, we reiterate the Walker and Shannon holdings that the 1989 DMA can
still be utilized for mineral interests that were deemed abandoned and vested
thereunder.
       {¶31} The trial court thus properly concluded that the 1989 DMA is still
applicable to prior acts of abandonment. This leads to the question of what period is
utilized to ascertain whether mineral rights were abandoned due to the lack of a
savings event.
                     FIXED OR ROLLING LOOK-BACK PERIOD
       {¶32} The mineral holders argue that the trial court erroneously utilized a
rolling look-back period. That is, the trial court proceeded under the premise that the
1989 DMA applies for all years until the current DMA was enacted on June 30, 2006
and that any day until then can be used to commence the twenty-year look-back
period. The trial court looked back twenty years from June 30, 2006 and found no
savings events. The mineral holders urge that the look-back is fixed at twenty years
from the March 22, 1989 date of enactment (with a grace period giving three extra
years to perform a savings event if one did not exist in the pertinent time frame). As
this mineral reservation was first created by a 1980 deed, there would be no
abandonment under the 1989 DMA if a fixed look-back period is employed.
       {¶33} As the mineral holders point out, the 1989 DMA states that there must
be a savings event “within the preceding twenty years” without immediately
specifying within the preceding twenty years of what. They point out that various trial
courts and the Fifth District have looked back twenty years from the date of
                                                                                      -9-

enactment. See, e.g., Riddel v. Layman, 5th Dist. No. 94CA114 (July 10, 1995)
(“Finally, the title transaction must have occurred within the preceding twenty years
from the enactment of the statute, which occurred on March 22, 1989. Appellee
Layman recorded the deed on June 12, 1973, well within the preceding twenty years
from the date the statute was enacted.”).
       {¶34} The surface owners respond that the 1989 DMA was in effect from
March 22, 1989 until June 30, 2006 (when the new version changed future look-back
periods to twenty years immediately preceding the date on which the newly-created
notice of abandonment is served or published). The surface owners urge that there
is a rolling twenty-year look-back period under the 1989 statute, meaning that the
surface owner can pick any date that exists between March 22, 1989 and June 30,
2006 and then look back twenty years from that date (with the grace period applying
in the three years after enactment).
       {¶35} The surface owners note that the legislature did not specifically state,
“twenty years from the date of the enactment.” They also point to division (D)(1),
which states: “A mineral interest may be preserved indefinitely from being deemed
abandoned under division (B)(1) by the occurrence of any of the circumstances
described in division (B)(1)(c) of this section, including but not limited to, successive
filings of claims to preserve mineral interests under division (C) of this section.” R.C.
5301.56(D)(1). They reason that if a single savings event between March 22, 1969
and March 22, 1989 (1992 with the grace period) is sufficient, there would be no
need for the successive filing of claims to preserve.
       {¶36} The surface owners state that the Riddel case found abandonment
under the first available twenty-year look-back period and thus had no need to review
other twenty-year periods. See Riddel, 5th Dist. No. 94CA114 (original reservation
by 1965 deed was a title transaction, and it was recorded in 1973 so it was a savings
event). (The surface owners also resort to items outside of that decision to contend
that a later claim to preserve in Riddel made the evaluation of other periods
unnecessary).
                                                                                    -10-

        {¶37} The surface owners claim that the mineral holders’ argument should not
be adopted as it renders the former DMA a “dead letter law.” They urge that the
instruction in R.C. 5301.55 to liberally construe the statute to simplify and facilitate
land transactions would be complied with only by utilizing a rolling look-back period.
They also compare the DMA to the Ohio Marketable Title Act and state that such act
is not applied in a way that only the 40 years before enactment is viewed.
        {¶38} As to the latter argument, the OMTA has language which specifically
identifies the point of look-back. For instance, “A person has such an unbroken chain
of title when the official public records disclose a conveyance or other title
transaction, of record not less than forty years at the time the marketability is to be
determined, which said conveyance or other title transaction purports to create such
interest * * *.” (Emphasis added). R.C. 5301.48. See also R.C. 5301.47(E); R.C.
5301.51(A) (“during the forty-year period immediately following the effective date of
the root of title * * *”).
        {¶39} Ohio’s 1989 DMA, however, merely states that the interest is deemed
abandoned if none of the savings events occurred within the preceding twenty years.
The question is: within the preceding twenty years of what? The surface owners’
answer to this question is: the preceding twenty years of every single day after the
statute’s enactment (until the new statute was enacted). However, this court recently
ruled that the look-back period in the 1989 DMA is fixed. Eisenbarth v. Reusser, 7th
Dist. No. 13MO10, 2014-Ohio-3792. We adopt that holding here.
        {¶40} The version of the Dormant Mineral Act being utilized herein was
enacted on March 22, 1989. It provides that a mineral interest held by anyone other
than the surface owner shall be deemed abandoned and vested in the surface owner
unless certain listed circumstances exist, one of which is: “[w]ithin the preceding
twenty years * * * the mineral interest has been the subject of a title transaction” that
has been filed in the county recorder’s office. R.C. 5301.56(B)(1)(c)(i). Division
(B)(2) goes on to state that a mineral interest shall not be deemed abandoned under
(B)(1) due to the lack of applicable circumstances until three years from the effective
date of this section. R.C. 5301.56(B)(2).
                                                                                   -11-

       {¶41} The statute does not elucidate that a savings event must occur within
twenty years of the last savings event. Eisenbarth, 7th Dist. No. 13MO10 at ¶45. If
the legislature intended that a savings event occurring in the original look-back period
would last only for twenty years (i.e. a rolling look-back), they did not clearly state
this. Id.
       {¶42} As to any query of why the legislature would enact a “dead letter law,”
the point of the 1989 DMA may have been merely to give three years to eliminate or
refresh stale mineral claims in the original look-back period, and the legislature
planned to enact a new version for the next twenty-year period if public policy
reasons for abandonment still applied in the future.     See id. at ¶ 50. In fact, the
legislature did then enact the 2006 DMA within twenty years of the former DMA,
adding a new look-back period (twenty years from the service of notice). Id.
       {¶43} As to R.C. 5301.56(D)(1) and its mention of successive claims to
preserve and indefinite preservation, we stated that this did not alter our conclusion.
It was noted that this could merely be a reference to any preservations that were filed
under the OMTA as it existed prior to the 1989 DMA in order to show that a new
claim to preserve can still be filed if the old one was filed outside of the new twenty-
year look-back. Id. at ¶ 49. We stated that other statutory language connected the
twenty-year look-back period to the date of enactment as (B)(2)’s grace period
provides three years from the date of enactment before items will be deemed
abandoned. R.C. 5301.56(B)(2). Id.
       {¶44} We found that a mineral holder would read the statute at the time of
enactment and conclude that they were safe due to a savings event in the pertinent
period without having any statutory notice that they had to keep creating savings
event twenty years from the last event, which could occur a mere few years after the
statute’s enactment. Id. at ¶ 47-48. We concluded that use of the words “preceding
twenty years,” without stating the preceding twenty years of what, did not create a
rolling look-back period. Id. at 48.
       {¶45} Notably, Indiana’s DMA discusses abandonment of a mineral interest “if
unused for a period of twenty years” (and “use” is defined with the various savings
                                                                                     -12-

events). Ohio’s OVI statutory look-back period, for instance, states, “within twenty
years of the offense.”    Ohio’s 2006 DMA states within twenty years immediately
preceding the date of which notice is served or published. In those examples, the
period of look back is expressly set forth.
       {¶46} Here, it is not expressed except in terms of “preceding twenty years”
and then a grace period is provided for further chances to save. This led us to
conclude that only a fixed look-back period could be employed. Id. at ¶ 45, 49 (also
noting that forfeitures are abhorred in the law), citing State ex rel. Falke v.
Montgomery Cty. Resid. Dev., Inc., 40 Ohio St.3d 71, 73, 531 N.E.2d 688 (1988).
       {¶47} As there is a fixed look-back period, there was no abandonment under
the 1989 DMA because the mineral rights were not even severed until 1980. The
trial court’s decision finding the mineral interests were abandoned under the 1989
DMA is therefore reversed.
              SURFACE TRANSFER IS NOT A TITLE TRANSACTION
       {¶48} The mineral holders briefly argue that the 1988 recorded deed
transferring the surface from the original grantees to the Farnsworths was a savings
event because it repeated the prior mineral reservation and included the specific
volume and page number in the recorder’s records. The surface owners respond
that the mineral rights owned by Veronica Burkhart and inherited by the Burkhart
family were not the subject of the surface transfer, citing Dodd for the holding that a
reference to a prior severance of the minerals is not a savings event
       {¶49} The question is whether “[t]he mineral interest has been the subject of
title transaction that has been filed or recorded” in the local recorder’s office. R.C.
5301.56(B)(1)(c)(i).   The surface deed is clearly a title transaction.        See R.C.
5301.47(F) (a title transaction is any transaction affecting title to any interest in land
such as a deed).       It was recorded in the recorder’s offense within the period
employed by the trial court.
       {¶50} As we concluded that the look-back period was fixed and there was no
abandonment under the 1989 DMA, this alternative issue (raised in case a rolling
look back was applied) is moot. Still, we point out that this issue would be governed
                                                                                    -13-

by our decision in Dodd, released two days before appellants filed their brief in this
case.    In Dodd, we held that the mineral interest is not the “subject of” a title
transaction involving the surface merely due to the repetition of a prior reservation.
Dodd v. Croskey, 7th Dist. No. 12HA6, 2013-Ohio-4257 (disagreeing with the trial
court’s conclusion that a surface transfer referencing a prior reservation was a
savings event). We applied the common definition of the phrase “subject of” as:
“topic of interest, primary theme or basis for action.” Id. at ¶ 48. We found that the
primary purpose of the title transaction was to sell the surface rights rather than to
affect the mineral interests. Id. Thus, repetition of a prior reservation in a surface
transfer is not a savings event. Id. See also Walker, 7th Dist. No. 13NO402 at ¶ 27-
28. This argument would thus be disposed of by Dodd.
                         CONSTITUTIONALITY OF 1989 DMA
        {¶51} The mineral holders’ final argument regarding the 1989 DMA is that it
results in an unconstitutional taking without due process as it does not have the
notice provided for in the 2006 DMA. The surface owners point out that the mineral
holders fail to discuss the Texaco case, wherein the United State Supreme Court
held that Indiana’s DMA was not unconstitutional.
        {¶52} This constitutional argument need not be addressed as the mineral
holders set it forth in the alternative in case we ruled against them above. In any
event, as the surface owners point out, the mineral holders did not argue below that
the 1989 DMA was unconstitutional. It is not mentioned in their answer, in their
summary judgment motion, or in their response to the surface owners’ summary
judgment motion.
        {¶53} This court has ruled that it will not address constitutionality of the 1989
DMA where it had not been raised below. See Walker, 7th Dist. No. 13NO402 at ¶
54-58. See also Swartz, 7th Dist. Nos. 13JE24, 13JE25 at ¶ 43, citing Danis Clarkco
Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590, 598, 653 N.E.2d
646 (1995); Abraham v. National City Bank Corp., 50 Ohio St.3d 175, 176, fn. 1, 553
N.E.2d 619 (1990). In accordance, arguments concerning the constitutionality of the
1989 DMA have been waived.
                                                                                    -14-

                     ASSIGNMENT OF ERROR NUMBER TWO
       {¶54} The trial court’s decision finding abandonment under the 1989 DMA is
being reversed. However, the trial court also determined that, even if there was no
abandonment under the 1989 DMA, the mineral interests were later abandoned
under 2006 DMA as well. On this holding, the mineral holders’ second assignment of
error provides:
       {¶55} “The Trial Court also erred in applying the 2006 version of the Dormant
Mineral Act since there was a title transaction within the 20 year period prior to notice
being served as a result of the application, issuance and subsequent recording of a
certificate of transfer conveying the mineral interest and/or recording of a Claim to
Preserve Mineral Interest.”
       {¶56} The 2006 DMA changes the twenty-year look-back period by stating
that a mineral interest is deemed abandoned if none of the savings events have
occurred “[w]ithin the twenty years immediately preceding the date on which notice is
served or published under division (E) * * *.” R.C. 5301.56(B)(3). The 2006 DMA
eliminated the self-executing feature of the prior act by adding: “Before a mineral
interest becomes vested under division (B) of this section in the owner of the surface
of the lands subject to the interest, the owner of the surface shall” do two things.
R.C. 5301.56(E). See also R.C. 5301.56(B) (deemed abandoned and vested in the
surface owner if no savings events and if the requirements of (E) were established);
R.C. 5301.56(H)(2) (if no timely claim to preserve or affidavit identifying a savings
event is filed, the surface owner shall cause the recorder to record a memorialization
of the abandonment at which time “the mineral interest shall vest in the owner of the
surface”).
       {¶57} First, the surface owner must serve notice of intent to declare the
mineral interest abandoned. This notice must be served by certified mail, return
receipt requested, to each holder or each holder’s successors or assignees, at the
last known address. If service of the notice cannot be completed to any holder,
service can be completed by publication. R.C. 5301.56(E)(1). Then, at least thirty
but not later than sixty days after the date on which the required notice is served or
                                                                                     -15-

published, the surface owner must file in the recorder’s office an affidavit of
abandonment. R.C. 5301.56(E)(2).
       {¶58} If a mineral holder claims that the mineral interest has not been
abandoned, then the holder shall file one of two documents in the recorder’s office
not later than sixty days after the notice was served or published.                  R.C.
5301.56(H)(1). The mineral holder can file a claim to preserve the mineral interest in
accordance with division (C), or the mineral holder can file an affidavit that identifies
an event described in (B)(3) that has occurred within the twenty years immediately
preceding the date on which the notice was served or published.                      R.C.
5301.56(H)(1)(a)-(b).
       {¶59} If the mineral holder fails to file a timely claim to preserve or a timely
affidavit identifying a savings event within the twenty years immediately preceding the
date of service or publication of notice, then the surface owner shall have recorded
as memorialization of the abandonment, at which time the mineral interest shall vest.
R.C. 5301.56(H)(2). Appellants set forth multiple arguments as to why they did not
abandon their minerals rights under the 2006 DMA.
                                CLAIM TO PRESERVE
       {¶60} In Dodd, this court held that a timely claim to preserve under R.C.
5301.56(H)(1)(a) stops the abandonment process provided in the 2006 DMA. Dodd
v. Croskey, 7th Dist. No. 12HA6, 2013-Ohio-4257, ¶ 24-35 (explaining that the claim
to preserve under (H)(1) is not subject to a twenty-year look-back period but rather
merely must be filed within sixty days of the notice). Thus, even if no savings event
occurred in the twenty years immediately preceding the date of service or publication
of the notice, the mineral holders can still protect their mineral interest by recording a
timely claim to preserve. Id.
       {¶61} The surface owners served notice of abandonment on the various
mineral holders on various dates: February 24, 25, 27, and March 1, 2012. The
mineral holders claim to preserve was recorded on April 19, 2012. There is no
dispute that the mineral holders filed a timely post-notice claim to preserve the
                                                                                     -16-

mineral interest. See R.C. 5301.56(H)(1) (“not later than sixty days after the date on
which the notice was served * * *.”)
       {¶62} The trial court determined that a post-notice claim to preserve merely
existed in the statute to force the surface owner to litigate the matter of whether there
existed a savings event. Our Dodd case then ruled that a timely claim to preserve
filed under R.C. 5301.56(H)(1)(a) prevents abandonment itself. It was released on
September 23, 2013, two days before the mineral holders filed their appellants’ brief
in this case.
       {¶63} The surface owners recognize the applicability of our Dodd ruling to the
claim to preserve in this case. See Appellees’ Brief at 23. They ask that we refrain
from applying Dodd because the mineral holders’ initial brief did not raise the issue
as an assignment of error. See Appellees’ Brief at 22. However, we conclude that
applying Dodd here is not unfair to appellees.
       {¶64} The mineral holders’ motion for summary judgment set forth an
argument regarding the effect of their claim to preserve. For instance, they stated,
“The statute is designed to permit a mineral owner to preserve their interest by
responding in order to avoid abandonment.”          Defendants’ Motion for Summary
Judgment at 15. They also emphasized that they filed a timely claim to preserve their
mineral interest after they were served with the notice “thus further preserving their
mineral interest.” Defendants’ Motion for Summary Judgment at 4, 16. Moreover,
the trial court specifically ruled “a claim to preserve cannot be the basis for
establishing that the mineral interest cannot be abandoned.” (July 16, 2013 J.E. at
11).
       {¶65} Appellants’ brief stated that their claim to preserve preserved their
rights to the minerals. Appellants’ Brief at 18-19 (while arguing against the affidavit of
abandonment).      In addition, the conclusion section of appellants’ brief stated,
“Appellants’ subsequent recording of the Claims to Preserve Mineral Interest
maintained their ownership of the minerals.”
       {¶66} Appellees’ brief cited to this court’s brand new holding in Dodd.       The
reply brief then pointed to our Dodd holding regarding a timely claim to preserve and
                                                                                                     -17-

clearly urged that that the timely claim to preserve was sufficient to prevent
abandonment under the 2006 DMA. See Appellants’ Reply Brief at 8. Finally, our
Dodd case was released two days before appellants filed their brief.
        {¶67} For all of these reasons, we cannot conclude that an argument under
Dodd was waived by not fully asserting it until the reply brief. We conclude that the
surface owners’ timely claim to preserve under R.C. 5301.56(H)(1) prevented
abandonment under the 2006 DMA.1
        {¶68} Accordingly, the judgment of the trial court is reversed, and judgment is
entered that the mineral interest was not abandoned by the mineral holders.



Waite, J., concurs.
DeGenaro, P.J., concurs in judgment with concurring in judgment only opinion.



DeGenaro, P.J., concurring in judgment only with concurring in judgment only
opinion.

        {¶69} I agree with the majority that pursuant to this court's decision in Dodd v.
Croskey, the 1988 deed does not constitute a title transaction and thus is not a
savings event under R.C. 5301.56, Ohio's Dormant Mineral Act (ODMA). See Dodd
v. Croskey, 7th Dist. No. 12 HA 6, 2013-Ohio-4257, discretionary appeal accepted
by, 138 Ohio St.3d 1432, 2014-Ohio-889, 4 N.E.3d 1050. But I disagree with the
majority and the recent trilogy holding that the 1989 ODMA controls resolution of this
case and cases filed after the effective date of the 2006 ODMA: Walker v. Shondrick–
Nau, 7th Dist. No. 13 NO 402, 2014-Ohio-1499 (Apr. 3, 2014) (fka Walker v. Noon);


        1
          Due to this holding, we need not address alternative issues raised with the trial court’s finding
of abandonment under the 2006 DMA. For instance, the mineral holders argue that their application
for a certificate of transfer filed in the probate court and/or the probate court’s issuance of the
certificate of transfer are savings events even though they were not filed in the recorder’s office until
after the initial notice of abandonment. And, two of the mineral holders complain that they recorded
the certificate of transfer in the recorder’s office before the surface owner’s notice of abandonment
was served on them (although the notice had already been served on other mineral holders). It is also
argued that the signing of a certified mailing by the surviving spouse of one of the mineral holders did
not constitute service where the notice named the deceased mineral holder.
                                                                                    -18-

Swartz v. Householder, 7th Dist. Nos. 13 JE 24, 13 JE 25, 2014-Ohio-2359, ---
N.E.3d --- (June 2, 2014); and Eisenbarth v. Reusser, 7th Dist. No. 13MO10, 2014-
Ohio-3792 (Aug. 28, 2014).
       {¶70} Consistent with the analysis in the minority opinion in Eisenbarth
(DeGenaro, P.J. concurring in judgment only), the 2006 ODMA should control
resolution of disputes over severed mineral rights where, as in this case: a) the
mineral rights were severed and the surface owner's fee interest was acquired before
or during the time frame when the 1989 ODMA was in effect; and b) the surface
owner did not claim the mineral rights were abandoned until after the effective date of
the 2006 ODMA.       Because the Burkharts timely recorded a claim to preserve
pursuant to R.C. 5301.56(H), they continue to hold the severed mineral rights. As this
is the same resolution reached by the majority, I respectfully concur in judgment only.
       {¶71} Although first and foremost I disagree with the majority's decision that
the 1989 ODMA governs here, secondarily I believe their analysis of the 1989 ODMA
is itself flawed by concluding that the Burkharts were able to preserve their mineral
interest pursuant to the 2006 ODMA. Operating under the rationale that the 1989
ODMA controls and is an automatic, self-executing statute, the Burkharts were no
longer the holders of the severed mineral interest when they recorded the certificate
of transfer and a claim to preserve pursuant to the 2006 ODMA in 2012. The mineral
rights had automatically reverted and vested in the Farnsworths' predecessors in
interest in 2000 by operation of the 1989 ODMA. Said differently, the Burkharts were
no longer holders of mineral rights that could be transferred or preserved as of 2012,
because the severed interest had been reunited with the surface fee in 2000. Thus,
title to the mineral rights should be quieted in the Farnsworths.
                    Nature of Interest, Forfeiture, Vesting and Laches
       {¶72} Prior to the enactment of R.C. 5301.56 severed mineral rights were
governed by Ohio common law. Eisenbarth at ¶79. (DeGenaro, P.J. concurring in
judgment only).     Generally, statutes in derogation of common law are strictly
construed; specifically, statutes imposing restrictions in derogation of private property
rights must be construed to avoid forfeiture, which is not favored in the law, and
                                                                                          -19-

cannot be ordered absent clear statutory expression. Id. at ¶80. (DeGenaro, P.J.
concurring in judgment only).
       {¶73} A fee simple interest —which includes severed mineral rights— under
common law "cannot be extinguished or abandoned by nonuse, and it is not
necessary to rerecord or to maintain current property records in order to preserve an
ownership interest in minerals."2 "An individual's vested right —created by common
law or statute— has been generally defined by the Ohio Supreme Court as being in
essence a property right, which is to be recognized and protected by the state from
arbitrary deprivation; a vested right is more than a mere expectation or interest in the
continuity of current common or statutory law; because it completely and definitely
belongs to the individual it cannot be impaired or divested absent the individual's
consent. The legal weight a vested right carries is reinforced by the axiom ingrained
in Ohio common law that forfeiture is not favored in law or in equity."              (Internal
citations omitted) Eisenbarth at ¶78. (DeGenaro, P.J. concurring in judgment only).
       {¶74} Consistent with principles of vesting, forfeiture and laches, the 1989
ODMA defined the surface fee owner's interest in the severed mineral rights as an
inchoate right; by use of the term deemed, R.C. 5301.56 created the possibility of
allowable vesting to occur, not an automatically vested right. Id. at ¶81-85, 90-91
(DeGenaro, P.J. concurring in judgment only).
       {¶75} The ODMA is a remedial rather than a substantive statute because its
purpose is to set forth the judicial process to follow when ownership of a severed
mineral right is disputed; R.C. 5301.56 delineates the parameters to determine
whether or not a severed mineral interest has been abandoned and if so, how to
reunite it with the surface fee, and is to be applied prospectively to any case filed
after each version's respective effective date.           Id. at ¶86-89 (DeGenaro, P.J.
concurring in judgment only). To construe the 1989 ODMA as controlling and an
automatic self-executing statute has resulted in a retroactive, substantive deprivation


       2
         Dahlgren v. Brown Farm Props., LLC., Carroll C.P. No. 2013 CVH 274455, *8, quoting the
Prefatory Note of the Uniform Dormant Interests Act, approved by the National Conference of
Commissioners on Uniform State Laws in 1986, approved by the A.B.A. on February 16, 1987.
                                                                                     -20-

of the Burkharts' common law vested interest in the severed mineral rights. Id. at
¶87, 92-97, 110-111 (DeGenaro, P.J. concurring in judgment only). Inherent in the
automatic, self-executing character ascribed to the 1989 ODMA is that it operates as
a forfeiture, which the law abhors. Id. (DeGenaro, P.J. concurring in judgment only).
       {¶76} The look-back period provision of the ODMA should not be confused
with the analytical principle of retroactivity. Applying the look back provision of the
ODMA version in effect at the time ownership of the severed interest is being litigated
in a particular case contemplates resolving a factual question. Determining which
ODMA version controls in a particular case contemplates determining through which
lens those facts are viewed.      When R.C. 5301.56 is given the proper remedial
interpretation, there is no issue of retroactive versus prospective application and the
propriety thereof. But where, as here, a substantive interpretation is given to the
ODMA, applying it retroactively runs afoul of Ohio law in that regard.
       {¶77} Finally, and conceding the doctrine of laches was not raised,
nonetheless it bears consideration here as in Eisenbarth. The Farnsworths, who took
title to the surface fee in 1988, failed to avail themselves of the 1989 ODMA while it
was still in effect. An action to quiet title could have been filed in 2000 when the
mineral rights arguably automatically reverted to them by operation of the statute.
Instead, it wasn't until after the 2006 ODMA went into effect, that the Farnsworths
published a notice of abandonment in February, 2012 pursuant to the 2006 ODMA —
in response to which the Burkharts timely filed a claim to preserve— and then filed a
quiet title action later that year, a lapse of 12 years. The prejudice to the Burkharts is
evident. Logic dictates that if the holder can be divested of their severed mineral
rights as having been abandoned due to their inaction under the 1989 ODMA, then
the 2006 ODMA can similarly be used to preclude reuniting the interest with the
surface fee because of the surface owner's inaction, i.e., his failure to commence a
quiet title action while the 1989 ODMA was still in effect. Id. at ¶91 (DeGenaro, P.J.
concurring in judgment only).
                     Indiana Lapsed Mineral Act and Texaco v. Short
                                                                                   -21-

      {¶78} The majority reaffirms this district's trilogy of decisions that the 1989
ODMA is a self-executing statute akin to Indiana's Mineral Lapse Act as so
characterized by the U.S. Supreme Court decision in Texaco, Inc. v. Short, 454 U.S.
516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982). I disagree with the reliance on Texaco.
Ohio more vigorously protects its citizens' private property rights by statute than
Indiana does; thus, neither Texaco nor the Indiana statute have persuasive or
precedential value.
      {¶79} First turning to two elemental points, the constitutionality of Indiana's
statute was at issue in Texaco, whereas the constitutionality of the 1989 ODMA is not
at issue here or in the preceding trilogy of cases, further undermining the persuasive
value of Texaco. On this basis alone Texaco is distinguishable. Second, it appears
that Indiana's Act remains unchanged with respect to its notice provisions, and
presumably because the Texaco majority held the Act did not violate federal
constitutional principles (affirming the Indiana Supreme Court's decision in Short v.
Texaco, Inc., 273 Ind. 518, 406 N.E.2d 626 (1980) that a self-executing statutory
abandonment is constitutionally enforceable).        Conversely, the Ohio General
Assembly, recognizing the inoperability of the 1989 ODMA, seized the opportunity to
clarify its intent and correct R.C. 5301.56, which can be construed as statutorily
rejecting Texaco. Id. at ¶102 (DeGenaro, P.J., concurring in judgment only).
      {¶80} Substantively, the language of the Indiana Act is unequivocal, and
lends itself to an interpretation that vesting is automatic.     Ind.Code 32-23-10-2
provides: "An interest in coal, oil and gas, and other minerals, if unused for a period
of twenty (20) years, is extinguished and the ownership reverts to the owner of the
interest out of which the interest in coal, oil and gas, and other minerals was carved.
However, if a statement of claim is filed in accordance with this chapter, the reversion
does not occur." (Emphasis added.) Id. As discussed in Eisenbarth, this language
is consistent with other portions of the OMTA which uses terms such as 'null and
void' or 'extinguished' and arguably warrants an automatic characterization, unlike
the qualified phrase in R.C. 5301.56 'deemed abandoned and vested,' which should
                                                                                    -22-

not be construed as having similar automatic effect.          Id. at ¶85, 94 and 100
(DeGenaro, P.J. concurring in judgment only).
       {¶81} R.C. 5301.56 was amended to clarify when a mineral interest became
abandoned and delineate the exact process to reunite the severed mineral interest
with the surface fee. Central to the modifications in the 2006 ODMA is that in all
instances before any allowable vesting can occur, the surface owner must notify the
holder of the severed mineral rights of the owner's intention to declare the rights
abandoned, even in the absence of a saving event within the now clearly defined
look-back period, in order to afford the holder one final opportunity to preserve their
mineral rights from abandonment.       R.C. 5301.56(E)(2) and (G).      Thus, the Ohio
General Assembly's amendments to R.C. 5301.56 have afforded the holder 60 days
to, in essence, revive their mineral interest. This is the antithesis of a self-executing
statute. Moreover, that the 1989 ODMA was not, nor intended to be, self-executing is
evident from the testimony of the 2006 ODMA sponsor and the Legislative Services
final bill analysis, discussed in Eisenbarth at ¶108-115 (DeGenaro, P.J. concurring in
judgment only).    This vigorous statutory protection stands in stark contrast with
Indiana's Act.
       {¶82} The 2006 ODMA removed the ambiguity and potentially arbitrary
operation of the 1989 ODMA by clearly defining the triggering event to commence a
20 year look-back period, and requiring notice to the mineral rights holder before
seeking abandonment, including enabling the holder to revive a possibly abandoned
interest. R.C. 5301.56(H). As a result, the General Assembly's express purposes of:
(1) requiring recording all interests to facilitate a searchable chain of title in real
property in general, and mineral rights specifically; and (2) encouraging economic
mineral production without violating inalienable property rights were achieved.
       {¶83} Here, the majority's interpretation of the 1989 ODMA as an automatic
self-executing statute has created a forfeiture of what were heretofore private
property rights protected at common law from extinguishment by abandonment or
nonuse; under the common law, affirmative action was required by the mineral rights
holder before they could be divested of their interest. This is in direct contravention
                                                                                   -23-

of the General Assembly's express decision to give Ohio citizens more statutory
protection than the Indiana Legislature affords its citizens.     Eisenbarth at ¶1021
(DeGenaro, P.J. concurring in judgment only).
         2006 ODMA Governs Resolution of Severed Mineral Rights Disputes
      {¶84} Consistent with the analysis in the minority opinion in Eisenbarth, the
majority has misinterpreted the 1989 ODMA in addition to giving it effect despite the
General Assembly's enactment of the 2006 ODMA.             Where litigation to resolve
disputes between the surface fee owner and the severed mineral rights holder was
filed after the 2006 ODMA took effect, the 2006 version controls; the 1989 version
has no force or effect. This conclusion is consistent with reading the OMTA and the
ODMA in pari materia, and more importantly, with the General Assembly's express
intent in enacting the 2006 ODMA and the statute's clear unambiguous language.
Eisenbarth at ¶104-118 (DeGenaro, P.J. concurring in judgment only).
      {¶85} To interpret the 1989 ODMA as automatic and self-executing would
confound the purpose of the OMTA, as well as the ODMA: to engender reliance upon
publicly recorded documents rather than private ones for transactions affecting title to
real property, such as ownership of severed mineral rights. Nothing in either version
of the ODMA suggests that it should not be construed in pari materia with the OMTA.
Notice remains the watchword of the entire OMTA, an omission in the 1989 ODMA
that was corrected by the General Assembly in the 2006 ODMA. R.C. 1.51 dictates
that a special provision should be construed with a more general provision, if
possible, to give effect to both. As part of the general OMTA statutory scheme, the
ODMA can be read as defining the surface owner's interest in the severed mineral
rights as an inchoate right and still give effect to its specific provisions and purpose
within the global purposes of the OMTA as well. Eisenbarth at ¶85, 94, 104-107
(DeGenaro, P.J. concurring in judgment only).
      {¶86} The ambiguity of the 1989 version of the ODMA is readily apparent.
Courts are guided by canons of statutory construction when asked to construe
ambiguous statutory language in order to decipher legislative intent. But given the
unique procedural circumstances presented in this and the related trilogy of cases,
                                                                                  -24-

namely, construing an ambiguous statute after it has been amended to remove the
ambiguity, we need not resort to those canons in order to glean that intent. By virtue
of the 2006 ODMA, we have the rare benefit of the General Assembly's statement of
its intent with respect to the ambiguous language of the 1989 ODMA. That alone
dictates that the 1989 version is no longer controlling; to decide otherwise makes the
enactment of the 2006 ODMA meaningless.          Eisenbarth at ¶67 (DeGenaro, P.J.
concurring in judgment only).
      {¶87} Viewed from the perspective that the 2006 ODMA is in effect, along
with the General Assembly's expressed reasons for making the amendments in that
version, and that statutes in derogation of common law must be strictly construed to
preserve individual property rights, the phrase 'deemed abandoned and vested' in
R.C. 5301.56(B)(1), should be construed as defining an inchoate right. Eisenbarth at
¶69 (DeGenaro, P.J. concurring in judgment only).
      {¶88} The 2006 version of R.C. 5301.56 does what the General Assembly
intended the 1989 ODMA to do but failed to achieve: balance the complimentary
policy goals of creating a reliable record chain of title via the Ohio Marketable Title
Act (OMTA) statutory scheme —which includes the ODMA— and facilitate economic
use of mineral rights. The Ohio General Assembly recognized that the 1989 ODMA
had technical problems and was thus seldom used. Specifically, the 1989 ODMA
failed to define how to calculate the 20 year look-back period before allowable
vesting can occur —to use the General Assembly's verbiage— and define the
process to reunite the interests in the surface owner. The 2006 ODMA corrected
inoperable, not merely ambiguous, statutory language. The current version of R.C.
5301.56 not only clarifies the process, it specifies the look-back period trigger and
mandates notice to the holder before the mineral rights are deemed abandoned; only
then can allowable vesting occur with the surface owner.           Eisenbarth at ¶70
(DeGenaro, P.J. concurring in judgment only).
      {¶89} Given the Ohio General Assembly's expressed purpose of the 2006
ODMA and the clear, unambiguous language of its modifications, the majority
incorrectly continues to follow the recent trilogy of cases from this district, and
                                                                                  -25-

determine the parties' interests to the severed mineral rights pursuant to the 1989
ODMA. As the Burkharts timely recorded a claim to preserve the severed mineral
rights under the 2006 ODMA, R.C. 5301.56(H), they continue to hold that interest.
Thus, I concur in the ultimate conclusion that the Burkharts did not abandon their
mineral rights and would reverse the trial court, but do so pursuant to the 2006
ODMA. Eisenbarth at ¶118 (DeGenaro, P.J. concurring in judgment only).
                          Alternative 1989 ODMA Analysis
         {¶90} Assuming arguendo the 1989 ODMA controls, in construing the
meaning of the ambiguous phrase 'preceding 20 years,' I disagree with the parties'
and the majority's characterization of the look-back period as either rolling or fixed.
The provision in R.C. 5301.56(D)(1) delineating the process for preserving severed
mineral rights for successive terms signals the General Assembly's intention that in
order to preserve that interest, every 20 years a savings event must occur, or the
holder must file a claim to preserve, in order to retain their interest for another 20
years.     Eisenbarth at ¶122-124 (DeGenaro, P.J. concurring in judgment only).
Moreover, the majority's substantive 1989 ODMA analysis is flawed.
         {¶91} R.C. 5301.56(D)(1) provides that the holder of severed mineral rights
can preserve their mineral rights indefinitely by filing successive claims for
successive 20 year periods. R.C. 5301.56(B)(1)(c)(v), 1988 S 223, eff. 3-22-89 (a
mineral interest will not be deemed abandoned if within the preceding 20 years a
claim to preserve has been filed pursuant to division (C)(1) of the statute). Because
R.C. 5302.56(D)(1) refers to successive filings, the 1989 ODMA contemplates that
the holder of severed mineral rights was required to renew that interest of record
every 20 years.
         {¶92} Pursuant to the 1989 ODMA, the original severance of the mineral
rights by Veronica Burkhart in 1980 was the subject of a title transaction
contemplated by R.C. 5301.56(B)(1)(c)(i), and thus a savings event which preserved
the mineral rights for the initial statutory 20 year period, which ran here until 2000.
Veronica died in 1995. Thus, the Burkharts or their predecessor in interest, Veronica,
was required, at a minimum, to record a successive claim to preserve before the
                                                                                   -26-

initial statutory 20 year period expired in 2000 to preserve their mineral rights for
another 20 year period, which they failed to do.
       {¶93} Applying the rationale that the 1989 ODMA is controlling and an
automatic self-executing statute, neither the February, 2012, certificate of transfer
purporting to transfer Veronica Burkhart's mineral interest to her heirs, nor the April,
2012, claim to preserve can constitute a savings event for the Burkharts because
they were no longer the holders of mineral rights that could be transferred or
preserved as of 2012.      Those severed mineral rights automatically vested and
reverted to the Farnsworths in 2000 by operation of the 1989 ODMA 12 years earlier.
Both filings were recorded 32 years after the last savings event, well beyond the 20
year look-back period provided for in R.C. 5301.56. Only the 2006 ODMA provides a
60 day window for a mineral rights holder to preserve their interest where, as here,
the holder has been notified that there has been a gap in excess of 20 years from a
preceding savings event. Id. at ¶121 (DeGenaro, P.J. concurring in judgment only).
       {¶94} Because the severed interest had been reunited with the surface fee in
2000 by operation of the 1989 ODMA, the majority has incorrectly concluded that the
Burkharts preserved their mineral interest pursuant to the 2006 ODMA. Accordingly,
title to the mineral rights should be quieted in the Farnsworths.
                                      Conclusion
       {¶95} In sum, while feigning to engage in statutory construction in order to
decipher what the General Assembly meant by 'deemed abandoned and vested,'
'preceding 20 years' and 'successive' makes for interesting academic writing or a law
school exam question, to do so here is disingenuous. The timing of the enactment of
both versions of the ODMA has presented Ohio's judiciary with a rare opportunity;
virtually every case involving the statute has been filed after the amendments to the
ambiguous statute have been enacted. Instead of engaging in the typical exercise of
divining legislative intent by reading the proverbial tea leaves, the General Assembly
has provided us with a billboard of the meaning of these terms by virtue of sponsor
testimony and Legislative Services' analysis of the 2006 ODMA, let alone the express
statutory language of R.C. 5301.56 the General Assembly enacted.
                                                                                   -27-

       {¶96} Yet the majority has chosen to ignore the existence of the 2006 ODMA
and construe the 1989 ODMA in a vacuum. This defies logic and the canons of
statutory construction, a cornerstone judicial interpretive tool created and followed to
honor the principle of separation of power and balance the respective constitutionally
defined roles of the legislative and judicial branches.
