United States: Ohio Supreme Court Decision Clarifies Mineral Rights In Utica And Marcellus Shale Plays

Last Updated: October 13 2016
Article by Jeffery D. Ubersax, Roy A. Powell, Jeffrey A. Schlegel and Kevin C. Meacham
Most Read Contributor in United States, September 2019

Many states have "dormant mineral" legislation providing for the transfer of severed mineral interests to the surface owner if the mineral owner does not develop the minerals or take other action manifesting an intent to preserve his interest over an extended period of time, typically 20 years. The basic purpose of such legislation is to promote the development of mineral resources by clearing title of unwanted mineral interests and eliminating the uncertainty about mineral ownership that can arise when many years of devise, descent, and conveyance leave oil and gas rights fragmented and disconnected from surface ownership.

Some of these statutes are expressly self-executing and provide for the automatic vesting of an unused mineral interest in the surface owner, without advance notice to the mineral owner. In 1982, the United States Supreme Court upheld Indiana's self-executing statute against a variety of constitutional challenges. Texaco, Inc. v. Short, 454 U.S. 516 (1982). Other statutes, including the Uniform Dormant Mineral Interests Act (1987), require the surface owner to take some action to reunite the mineral and surface estates.

The Background

Ohio adopted its Dormant Mineral Act ("DMA") in 1989 and amended it in 2006. Ohio Rev. Code § 5301.56.1 The 1989 Act provided that a mineral interest "shall be deemed abandoned and vested in the owner of the surface" unless a savings event occurred within the preceding 20 years. Savings events include a recorded title transaction of which the mineral interest was the subject, actual production of minerals by the holder, the issuance of a drilling or mining permit to the holder, or a filed claim to preserve the holder's interest. The 2006 amendments imposed new requirements on the surface owner: First, he must give advance notice to the mineral rights holder of his intent to claim abandonment; second, he must, within 30 to 60 days, file an "affidavit of abandonment" reciting the absence of a savings event; and third, if the mineral rights owner files neither a claim to preserve his interest nor an affidavit proving that a savings event occurred, he must record a "notice of failure to file." Only then "the mineral interest shall vest in the owner of the surface of the lands formerly subject to the interest." Ohio Rev. Code § 5301.56(H)(2).

For about a quarter century, there was virtually no litigation under the DMA and only one reported decision. With the advent of horizontal drilling and fracking in the Utica and Marcellus shale, there was an explosion in DMA-related cases. Landowners filed dozens of lawsuits alleging that: mineral interests automatically vested in them under the 1989 Act before 2006; the 2006 amendments therefore did not apply to them; and they, rather than the mineral owners of record, were entitled to lease those interests and collect any royalties from their development. Although there was some division in the trial courts, all three appellate districts (the Fifth, Seventh, and Eleventh) that addressed these issues agreed with the landowners, concluding that the 1989 Act was self-executing and provided for automatic vesting.

These lawsuits created significant uncertainty about mineral ownership in the Utica and Marcellus shale. The Ohio Supreme Court resolved that uncertainty in a decision on a certified question that it handed down on September 15, 2016. Corban v. Chesapeake Exploration, LLC, et al., No. 2014-0804, Slip Op. No. 2016-Ohio-5796.

The Case

The mineral interest in Corban was severed in 1959. The plaintiff/petitioner acquired the surface rights to the property in 1999. Oil and gas production commenced on the property in 2011. The plaintiff brought suit under the DMA in 2013. He argued that the 1989 DMA was self-executing and, in the absence of any savings event for a 20-year period, automatically gave him a "vested right" to the minerals when he acquired the property, which the Ohio Legislature could not retroactively destroy in 2006.

The mineral owner and its lessee argued that the 1989 Act was not self-executing and did not provide for "automatic" vesting because such vesting would occur outside the chain of title, violating the declared statutory purpose of "simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title." Ohio Rev. Code § 5301.55. They also argued that the 2006 Act was not unconstitutionally retroactive because it only established a procedure that must be followed for any allowable vesting can occur, without changing any of the substantive elements of a deemed abandonment.

The Ohio Supreme Court Decision

Disagreeing with every court of appeals, the Ohio Supreme Court held that the 1989 DMA was not self-executing; in providing that dormant mineral interests shall merely be "deemed abandoned and vested" (emphasis added), rather than "extinguished" or "null and void" (terms used elsewhere in the Marketable Title Act, of which the DMA is a part), the legislature established only a "conclusive presumption." "[B]ecause the conclusive presumption of abandonment was only an evidentiary device that applied to litigation seeking to quiet title to a dormant mineral interest, the Dormant Mineral Act did not automatically transfer the interest from the mineral rights owner to the surface owner by operation of law." Rather, a surface owner claiming subsurface minerals under the 1989 DMA "was required to commence a quiet title action seeking a decree that the dormant mineral interest was deemed abandoned." The court found it "apparent" from the legislative history that the General Assembly "did not intend title to dormant mineral interests to pass automatically and outside the record chain of title."

Since a dormant mineral interest did not automatically pass to the surface owner under the 1989 Act, the court also held, "as of June 30, 2006, any surface holder seeking to claim dormant mineral rights and merge them with the surface estate is required to follow the statutory notice and recording procedures enacted in 2006." This does not violate the Retroactivity Clause of the Ohio Constitution because "the General Assembly has not divested the surface holder of a right to abandon mineral interests that accrued prior to the effective date of [the 2006 amendments], but rather, it modified only the method and procedure by which the right is recognized and protected."

The Decision's Impact

This decision will likely be dispositive in most DMA cases, because few surface owner plaintiffs have even attempted to comply with the requirements of the 2006 DMA. See, e.g., Albanese v. Batman, No. 2015-0120, Slip Op. No. 2016-Ohio-5814 (Ohio Supreme Court, Sept. 15, 2016). Those who do attempt to comply, by giving notice to the mineral holder, will have no claim if the holder then within 60 days files a claim to preserve its interest—as occurred in a case decided on the same day as CorbanWalker v. Shondrick-Nau, No. 2014-0803, Slip. Op. No. 2016-Ohio-5793 (Ohio Supreme Court, Sept. 15, 2016). The Ohio Supreme Court decided 12 other DMA cases together with Corban, and in 10 of its orders, it simply cited Corban, or Corban and Walker, as the authority for reversing or affirming the decision below.

The Ohio Supreme Court's Corban decision will eliminate the uncertainty created by dozens of DMA lawsuits about the ownership of rights in the Utica and Marcellus shale, stabilize those rights, and remove a legal obstacle to the further development of this valuable resource. Mineral owners who value their rights should no longer be faced with claims that through inaction, they lost or relinquished those rights, or that those rights have been transferred to others automatically and without notice to them or any legal process. If surface owners give notice as required under the 2006 Act of their intent to claim that minerals have been abandoned, it is a fairly simple matter for mineral holders to then file a claim or affidavit within 60 days, under Ohio Rev. Code § 5301.56(H)(1)(a), that "is sufficient to preclude the mineral interests from being deemed abandoned" under the Ohio Supreme Court's decision in Dodd v. Croskey, 143 Ohio St. 3d 293 (2015).

Jones Day represents one of the parties in Corban and argued the matter in the Ohio Supreme Court.


1 Other states in the Appalachian Basin also have "dormant mineral" legislation, with substantially different provisions, to promote the development of mineral resources. For example, Pennsylvania's Dormant Oil and Gas Act (58 Pa. Stat. Ann. § 701.1 et seq.) is designed "to facilitate the development of subsurface properties by reducing the problems caused by fragmented and unknown or unlocatable ownership of oil and gas interests...." 58 Pa. Stat. Ann. § 701.2. West Virginia's legislature has in place a method whereby the courts can facilitate development of mineral estates that applies to "coal, oil, gas, and other minerals" and is designed to remove "certain barriers to ... development caused by interests in minerals owned by unknown or missing owners or by abandoning owners." W. Va. Code § 55-12A-1 et seq. For more information, see Dormant Minerals Acts and the Marcellus and Utica Shale Plays.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Reinhart Boerner Van Deuren s.c.
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Reinhart Boerner Van Deuren s.c.
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions