Columbus, OH - Oil and Gas Litigation lawyer represented appellee with a oil and gas interests dispute.

In 2012, Senterra acquired a 77.5-acre parcel of land in Belmont

County through a general warranty deed.

2 The conveyance was subject to oil and

gas interests that were severed from the surface property prior to Senterra's

acquisition of the land. For the purposes of this case, the genesis of transfers of the

land occurred in 1925 when Lulu E. and James H. Winland and Alta H. and William

H. Dermot (collectively, "Winland-Dermot”) conveyed their interest in an 86-acre

1. Appellants and cross-appellees are Alan T. Winland, Laura J. Winland, Linda Godek, Clarence

Winland, Frances Faulkner, Norman Winland, Teresa Winland, John D. McBrayer, Brenda S.

Langkopf, Amy Kay Fahner, Jeff Fahner, Lori Jo Podsobinski, Charles Patterson, Cathy Patterson,

Debra Saunders, Bill Saunders, Diane McBrayer Andersen, Brian Andersen, Linda Dollison, and

Larry Podsobinski. On August 21, 2020, counsel for appellants and cross-appellees filed

suggestions of death notifying this court that Alant T. Winland died on May 19, 2020, and that

Clarence Winland died on December 22, 2018.

2. Senterra acquired through the same transfer a second parcel of land that is not at issue in this

appeal.

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tract of land to Joseph E. Russell and George W. Russell through a quit-claim deed.

In the deed, Winland-Dermot "except[ed] and reserve[d]” a one-quarter interest in

the oil and gas underlying the land.

{¶ 4} In 1941, Joseph Russell and George Russell transferred their interest

in the 86-acre tract to George Russell through a warranty deed but excepted from

the transfer "all oil and gas rights.” The deed did not mention the one-quarter

exception and reservation made by Winland-Dermot in 1925. In 1954, George

Russell transferred the 86-acre tract to Stanley Juzwiak and Margaret Juzwiak

through a warranty deed but excepted and reserved a one-quarter interest in the oil

and gas for himself and his heirs and assigns. The 1954 deed did not mention the

prior exceptions or reservations contained in the 1925 and 1941 deeds.

{¶ 5} In 1971, Stanley Juzwiak and Margaret Juzwiak transferred their

interest in the remainder of the land, then 77.5 acres, to Seaway Coal Company

through a warranty deed that restated George Russell's exception and reservation

of a one-quarter interest in the oil and gas. In 1987, Seaway Coal Company

transferred its interest to Shell Mining Company through a general warranty deed

that again restated George Russell's 1954 exception and reservation of the onequarter interest. In 1992, Shell Mining Company transferred its interest to R & F

Coal Company through a limited warranty deed. The deed stated that the transfer

was "subject to * * * conditions and restrictions of record,” and attached to the deed

was the 1987 deed for the transfer of the land from Seaway Coal Company to Shell

Mining Company.

{¶ 6} In 2000, Capstone Holding Company, a successor by merger to R &

F Coal Company, transferred its interest to Lora Lynn Kelly, David Joseph Sensius,

and Steven George Sensius through a limited warranty deed. Although the deed

did not refer to any specific prior exceptions or reservations, it contained the

following language: "UNDER and SUBJECT to any and all exceptions,

reservations, restrictions, * * * [and] covenants and conditions * * * shown by

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instruments of record.” (Capitalization sic.) In 2012, Lora Kelly, David Sensius,

and Steven Sensius conveyed their interest to Senterra through a warranty deed.

The deed referred to the 1992 deed for the transfer of the land from Shell Mining

Company to R & F Coal Company, and it contained language regarding prior

exceptions and reservations identical to that used in the 2000 deed.

{¶ 7} In 2018, Senterra filed a complaint in the Belmont County Court of

Common pleas against the heirs and other defendants,

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seeking to quiet title to the

interests in the oil and gas underlying the land. Senterra filed a motion for summary

judgment, arguing among other things that the oil and gas interests retained under

the 1925 and 1941 conveyances were extinguished by the MTA and that George

Russell's purported reservation of a one-quarter interest in the oil and gas in the

1954 deed was legally ineffective under the Duhig rule. Alternatively, Senterra

argued that the oil and gas interests were abandoned under Ohio's Dormant Mineral

Act, R.C. 5301.56.

{¶ 8} The trial court granted summary judgment to Senterra regarding title

to the interest that had been retained by George Russell, determining that the

reservation made in the 1954 deed was void ab initio under the ordinary rules of

contract construction and the Duhig rule. The court also determined that the

reservations of the oil and gas interests made in 1925 and 1941 were extinguished

by the MTA and that Senterra possessed marketable record title to the oil and gas

interests. The court then determined that Senterra's claims based on the DMA were

moot.

{¶ 9} The heirs appealed to the Seventh District, arguing that the trial court

erred when it applied the MTA to extinguish their oil and gas interests, that it

incorrectly determined that the interests were extinguished by the MTA even if the

MTA applied, and that it erred when it determined that George Russell's reservation

3. Senterra's complaint also named as defendants Rice Drilling D, L.L.C., and Gulfport Energy

Corporation, neither of which are involved in this appeal.

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of the one-quarter interest in the oil and gas was void ab initio pursuant to the Duhig

rule. 2019-Ohio-4387, 148 N.E.3d 34, ¶ 34, 48-49, 84-85. The court of appeals

affirmed the trial court's determinations that the MTA applied and extinguished the

oil and gas interests that had been retained in the 1925 and 1941 deeds, id. at ¶ 43-

44, 68-74, but it reversed the trial court's determination that George Russell's

reservation of the one-quarter interest was void ab initio, id. at ¶ 94, 96. The court

of appeals held that the Duhig rule was inapplicable to that reservation and that the

MTA applied and preserved the one-quarter interest in the oil and gas. Id.

{¶ 10} Senterra filed an application for reconsideration with the court of

appeals, requesting that it grant a limited remand to the trial court based on the court

of appeals' determination that the trial court had erroneously applied the Duhig rule

when it should have determined that the interest was preserved under the MTA.

2019-Ohio-5458, ¶ 4. Senterra asserted that the court of appeals' holding revived

its claim that the interest had been abandoned under the DMA. Id. The court of

appeals granted the application and remanded the matter to the trial court for it to

determine whether the interest had been abandoned under the DMA. Id. at ¶ 6-8.

{¶ 11} The heirs appealed to this court, and Senterra filed a cross-appeal.

We accepted jurisdiction to consider the heirs' first proposition of law: "The

Dormant Mineral Act, R.C. 5301.56, is the specific provision of the Marketable

Title Act, R.C. 5301.47 et seq., with respect to the transfer of severed, fee oil and

gas ownership interests to a surface owner and its provisions prevail over the

general provisions which are inapplicable.” See 158 Ohio St.3d 1522, 2020-Ohio3018, 145 N.E.3d 311. We also accepted jurisdiction to consider Senterra's sole

proposition of law: "When a reservation fails under the Duhig Rule, it is declared

void ab initio at the time of the deed and cannot be revived pursuant to later

determinations that prior reservations were made or deemed ineffective pursuant to

statutory mechanisms.” See id.

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{¶ 12} We held the appeal and cross-appeal for our decision in West v.

Bode, 162 Ohio St.3d 293, 2020-Ohio-5473, 165 N.E.3d 298. See 158 Ohio St.3d

1522, 2020-Ohio-3018, 145 N.E.3d 311. After West was decided, we lifted the stay

and ordered briefing on the proposition of law presented in Senterra's cross-appeal

only, 160 Ohio St.3d 1514, 2020-Ohio-6834, 159 N.E.3d 1178, because we

addressed the arguments relating to the heirs' proposition of law in West, holding

that there is no irreconcilable conflict between the MTA and the DMA, see West at

¶ 2.

Law and Analysis

{¶ 13} As an initial matter, we decide the issue presented in the heirs'

proposition of law in accordance with our decision in West and affirm the judgment

of the court of appeals on that issue.

{¶ 14} Turning to the proposition of law presented in Senterra's crossappeal, we note that when the MTA was originally enacted in 1961, it did not apply

to mineral interests. West at ¶ 17, citing former R.C. 5301.53(E), 129 Ohio Laws

1040, 1046. The General Assembly amended the MTA in 1976, however, to allow

property owners to clear their properties' titles of unused mineral interests. Id.; see

also Am.S.B. No. 267, 135 Ohio Laws, Part I, 942-943. "The [MTA now]

extinguishe[s] oil and gas rights by operation of law after 40 years from the

effective date of the root of title unless a saving event preserving the interest

appear[s] in the record chain of title.” Corban v. Chesapeake Exploration, L.L.C.,

149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, ¶ 18 (lead opinion); see also

Collins v. Moran, 7th Dist. Mahoning No. 02 CA 218, 2004-Ohio-1381, ¶ 20

(explaining that the MTA operates "as a 40-year statute of limitations for bringing

claims against a title of record”).

{¶ 15} "Ohio's [MTA] is taken primarily from the Model Marketable Title

Act.” Heifner v. Bradford, 4 Ohio St.3d 49, 51, 446 N.E.2d 440 (1983). The MTA

provides that a person who has an unbroken chain of title of record to any interest

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in land for at least 40 years has a "marketable record title” to that interest. R.C.

5301.48; see also West, 162 Ohio St.3d 293, 2020-Ohio-5473, 165 N.E.3d 298, at

¶ 15. Marketable record title is a title of record that extinguishes interests and

claims existing prior to the date of the root of title. R.C. 5301.47(A). " 'Root of

title' means 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 of his title, and which was the most recent to

be recorded as of a date forty years prior to the time when marketability is being

determined.” R.C. 5301.47(E). Thus, the root of title must precede the date when

marketability is being determined by 40 years and it must account for the interest

claimed by the person seeking marketable record title. Id.; see also Blackstone v.

Moore, 155 Ohio St.3d 448, 2018-Ohio-4959, 122 N.E.3d 132, ¶ 9. The court of

appeals explained the process for determining the root of title under the MTA:

"Assuming the Model Act were enacted as written, an

examiner inspecting title would use it as follows: beginning with the

date forty years before the date on which he is determining title and

moving chronologically backwards therefrom, he would find the

most recently recorded conveyance of the subject parcel. This

document is his potential root of title. After giving a cursory

examination of the previoustitle documentsto determine easements,

interest owned by the federal government, and reversionary,

possessory interests in leases, he would closely scrutinize the

documents in the chain of title for the forty years immediately

following the root. Finding no competing recorded interests, he

could safely assume that all interests previous to the root of title not

otherwise excepted were extinguished and that the title was defect

free up to the date of the root. If, however, he found competing

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claims in the chain, he would go back to the next closest preceding

conveyance and repeat the process. He would continue moving

back until he found a conveyance followed by forty years of clean

title. That document would be hisroot, and he could safely conclude

that the act extinguished all competing interests recorded prior to

that date.”

2019-Ohio-4387, 148 N.E.3d 34, at ¶ 57, quoting Hubbert, Rocked by Rocket:

Applying Oklahoma's MRTA to Severed Mineral Interests after Rocket v. Donabar,

68 Okla.L.Rev. 381, 386 (2016).

{¶ 16} Further, "[a]n interest that has been extinguished by operation of the

[MTA] cannot be revived.” West at ¶ 15, citing R.C. 5301.49(D). The only

exception to that rule is if there was a saving event that appears in the record chain

of title— "i.e., the interest was specifically identified in the muniments of title in a

subsequent title transaction, the holder recorded a notice claiming the interest, or

the interest '[arose] out of a title transaction which has been recorded subsequent

to the effective date of the root of title.' ” (Brackets added in Corban.) Corban,

149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, at ¶ 18, quoting R.C.

5301.49(D).

{¶ 17} Relying on the Seventh District's application of the Duhig rule in

Talbot v. Ward, 2017-Ohio-9213, 102 N.E.3d 544 (7th Dist.), the trial court

determined that George Russell's reservation of the one-quarter oil and gas interest

was void ab initio. In Talbot, the Seventh District analyzed successive recorded

transfers of a property's oil and gas interests that occurred within a 40-year period.

Id. at ¶ 2-13. The court of appeals neither mentioned nor applied the MTA in

Talbot. Rather, in determining the ownership of the interests at issue, the court

applied the Duhig rule. Talbot at ¶ 45-74.

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{¶ 18} The origin of the transfers of the disputed oil and gas interests at

issue in Talbot occurred in 1943, when a grantor conveyed his surface property to

a grantee but excepted and reserved a one-half interest in the oil and gas underlying

the property while failing to adequately mention any prior exceptions or

reservations regarding that interest in the deed. Id. at ¶ 45-51. The other one-half

interest in the oil and gas was owned by a third party who subsequently sold that

interest. Id. at ¶ 64-65. The grantee later sold his one-half interest to the third

party's successor in title who by then owned the other one-half interest. Id. at ¶ 7,

61. And in 1977, the third-party successor recorded a preservation affidavit

claiming ownership of the entire oil and gas interest. Id. at ¶ 40, 61.

{¶ 19} The appellees in Talbot argued that the original grantor had retained

the one-half interest that he excepted and reserved to himself. Id. at ¶ 53. But the

court of appeals held that under the Duhig rule and the ordinary rules of deed

construction, even if the original grantor had excepted or reserved the one-half

interest, that exception or reservation failed because the original grantor violated

the warranty of title and his successors in interest were estopped from claiming title

to the reserved fractional interest. Talbot at ¶ 68.

{¶ 20} The Seventh District distinguished Talbot from this case because

Talbot did not involve an unbroken chain of title of record for 40 years, which is

necessary for the MTA to apply. 2019-Ohio-4387, 148 N.E.3d 34, at ¶ 91-92. The

court of appeals noted, "In Talbot we were not asked to apply the MTA. Given the

facts [in Talbot], the MTA could not have been used to extinguish an interest; the

MTA could not remove the clouds on the title to the minerals because there were

competing interests that were preserved within the 40 year period.” Id. at ¶ 91. We

agree with the court of appeals that the Duhig rule does not apply to the facts of this

case. See Trial v. Dragon, 593 S.W.3d 313, 319 (Tex.2019) (determining that the

Duhig rule applies only "if the grantor owns the exact interest to remedy the breach

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at the time of execution and equity otherwise demands it” [emphasis sic]). Rather,

this matter is resolved solely by the MTA.

{¶ 21} In 1925, Winland-Dermot excepted and reserved a one-quarter

interest in the oil and gas. Accordingly, Joseph Russell and George Russell could

each retain at most a three-eighth interest in the oil and gas under the 1941 deed

(one-half each of the remaining three-quarter interest). However, in 1954, George

Russell excepted and reserved for himself and his heirs and assigns a one-quarter

interest in the oil and gas and, because he did not account for the prior exceptions

or reservations contained in the 1925 and 1941 deeds, the plain language of the

1954 deed indicated that he conveyed the surface property and a three-quarter oil

and gas interest to Stanley Juzwiak and Margaret Juzwiak. Because of the

exception and reservation made by Winland-Dermot in the 1925 deed and the

exception made by Joseph Russell in the 1941 deed, George Russell owned only a

three-eighth interest in the oil and gas; but he purported to convey a three-quarter

interest.

{¶ 22} Senterra argues that under the Duhig rule, since George Russell

conveyed to Stanley Juzwiak and Margaret Juzwiak an interest in the property that

was greater than what he had owned, his attempt to retain the oil and gas interest

failed and should be declared void at the time of the 1954 deed. The flaw in that

argument, however, is that George Russell did not own the exact interest necessary

to remedy the breach at the time of the conveyance: he excepted and reserved a

one-quarter interest when he held only a three-eighth interest. Therefore, forfeiting

his one-quarter interest in favor of Stanley Juzwiak and Margaret Juzwiak would

not remedy the alleged breach, as it would not provide the Juzwiaks with their threequarter interest.

{¶ 23} Similarly, the dissenting opinion incorrectly frames the Duhig rule

as standing for the proposition that a grantor's overconveyance at the time of

executing the deed renders the grantor's exception or reservation under the deed

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void ab initio. However, the Duhig rule embodies a narrow, equitable principle

that, as noted above, does not apply here. See Dragon, 593 S.W.3d at 318

(emphasizing that "Duhig applies the doctrine of estoppel by deed to a very distinct

fact pattern, and its holding is narrow and confined to those specific facts”).

Further, Senterra does not direct this court's attention to any Ohio authority that

stands for the proposition that a grantor's exception or reservation is void at the

time of the deed's execution when the grantor also purports to convey more than

he owns.

{¶ 24} Moreover, Senterra's position ignores the applicability of the MTA

here and its purpose, which is to " ' "simplify[] and facilitat[e] land title

transactions by allowing persons to rely on a record chain of title.” ' ” West, 162

Ohio St.3d 293, 2020-Ohio-5473, 165 N.E.3d 298, at ¶ 15, quoting Corban, 149

Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, at ¶ 17, quoting R.C. 5301.55.

Senterra wants us to disregard the more than 40-year unbroken chain of record title

that preserved George Russell's one-quarter oil and gas interest under the MTA and

yet scrutinize the 1954 deed as if the interests retained in the 1925 and 1941 deeds

were not extinguished by the MTA.

{¶ 25} Although the extinguishment of the exceptions or reservations

contained in the 1925 and 1941 deeds is not at issue here due to our decision in

West, the lower courts' determinations regarding the extinguishment of those

interests are important to our analysis. The trial court determined that the WinlandDermot reservation was extinguished because the root-of-title deed was the 1954

deed, there was no reference to the interest in the chain of record title following the

1925 deed that created the interest, and there was no saving event under R.C.

5301.49 that preserved the interest. The court of appeals affirmed the trial court's

determination that Senterra and its predecessors in title had an unbroken chain of

record title to the interest for more than 40 years. 2019-Ohio-4387, 148 N.E.3d 34,

at ¶ 68.

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{¶ 26} Similarly, the trial court determined that the exception made by

Joseph Russell and George Russell in 1941 was extinguished because the root-oftitle deed was the 1971 deed (a determination to which the parties had stipulated),

there was no reference to the interest in the chain of record title following the 1941

deed that created the interest, and there was no saving event under R.C. 5301.49

that preserved the interest. The court of appeals affirmed the trial court's

determination that Senterra and its predecessors in title had an unbroken chain of

record title to the interest for more than 40 years. 2019-Ohio-4387 at ¶ 73. The

court explained that even though Joseph Russell and George Russell had each

retained a three-eighth interest in the oil and gas under the 1941 deed, the language

of the 1971 root-of-title deed accounted for only George Russell's one-quarter

interest. Id. Accordingly, the court determined that the remaining one-half

interest—Joseph Russell's three-eighth interest plus George Russell's remaining

one-eighth interest—was extinguished. Id.

{¶ 27} The significance of the extinguishment of those interests is that there

were no recorded, competing interests to George Russell's exception and

reservation of the one-quarter oil and gas interest created in the 1954 deed. The

1971 root-of-title deed specifically referred to George Russell's exception and

reservation of the one-quarter interest. The exception-and-reservation language

was repeated in the 1987 deed, and the 1992 deed referred to the 1987 deed by the

county recorder's volume and page number. Although the MTA extinguished the

exceptions or reservations made in the 1925 and 1941 deeds, it did not extinguish

the exception and reservation of the interest made by George Russell.

{¶ 28} Senterra urges us to apply the Duhig rule and to consider the state of

title to a property at the time that the conveyance of the property occurred, even

when the conveyance preceded the root-of-title deed, and to recognize interests that

were not preserved in the chain of record title or subject to any saving event under

the MTA. But an interest that has been extinguished by the MTA may not be

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revived. West, 162 Ohio St.3d 293, 2020-Ohio-5473, 165 N.E.3d 298, at ¶ 15,

citing R.C. 5301.49(D). Had Winland-Dermot or Joseph Russell properly retained

their interests or challenged the 1954 conveyance before their interests were

extinguished, the outcome of this case might be different. But the exception and

reservation of that interest was not challenged until 2018 when Senterra filed its

quiet-title complaint, which was more than 40 years after the root-of-title event—

the 1971 deed that restated George Russell's exception and reservation regarding

the one-quarter oil and gas interest.

{¶ 29} The dissenting opinion ignores the fact that both the trial court and

the court of appeals determined that the MTA extinguished the interest sought to

be retained by Winland-Dermot in 1925 and the interest sought to be retained by

Joseph Russell and George Russell in 1941, 2019-Ohio-4387, 148 N.E.3d 34, at

¶ 43-44, 68-74. The dissenting opinion unilaterally determines that the 1925

conveyance is a better root of title for George Russell's one-quarter-interest

exception and reservation, finding that "[a] title search conducted using the 1925

conveyance as the root of title—and going forward 40 years—would demonstrate

that George Russell's purported 1954 exception was void.” Dissenting opinion,

¶ 70. However, there is no basis on which to conclude that the 1925 conveyance is

the root of title because, as the court of appeals correctly acknowledged, Senterra

is the party seeking to quiet title, the 1971 deed accounts for the interest for which

Senterra seeks marketable record title, see Blackstone, 155 Ohio St.3d 448, 2018-

Ohio-4959, 122 N.E.3d 132, at ¶ 9, and the 1971 deed is the most recently recorded

deed during the 40-year period prior to the time when marketability was being

determined, which was 2018, that accounts for the interest. See R.C. 5301.47(E).

Moreover, the dissenting opinion's cherry-picking a new root of title to support its

pseudo-MTA analysis does not resuscitate the interest sought to be retained by

Wilmot-Dermot or the interest sought to be retained by Joseph Russell and George

Russell, and it is nonsensical to acknowledge that those interests were extinguished

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by the MTA while also concluding that George Russell conveyed in the 1954 deed

more than he owned, thus voiding his interest. This court is not, as the dissenting

opinion suggests, validating George Russell's "defunct” one-quarter-interest

exception and reservation through application of the MTA. Dissenting opinion at

¶ 64. Rather, we merely disagree with the dissenting opinion and Senterra that

George Russell's one-quarter-interest exception and reservation was void at the

outset. As such, we hold that George Russell and his heirs and assigns have

marketable record title under the MTA to the one-quarter oil and gas interest at

issue.

We affirm the judgment of the Seventh District Court of Appeals and

hold that the one-quarter oil and gas interest retained by George Russell and his

heirs and assigns was not subject to the Duhig rule and that the heirs’ interest was preserved under the MTA. In accordance with the judgment of the court of appeals, the cause is remanded to the trial court for it to determine whether the interest was abandoned under the DMA.