O'Kelley v. Rothenbuhler

[Cite as O'Kelley v. Rothenbuhler, 2021-Ohio-1167.]

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

DR. ROBERT LEON O’KELLEY, JR.,

Plaintiff-Appellant,

v.

RONALD ROTHENBUHLER ET AL.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY
Case No. 20 MO 0009

Civil Appeal from the
Court of Common Pleas of Monroe County, Ohio
Case No. CVH2019-263

BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.

JUDGMENT:
Affirmed.

Atty. David Wigham, and Atty. Emily Anglewicz, Roetzel & Andress, LPA, 222 South
Main Street, Suite 400, Akron, Ohio 44308, and Atty. Sara Fanning, Roetzel & Anress,
41 South High Street, Huntington Center, 21st Floor, Columbus, Ohio 43215, for
Plaintiff-Appellant and
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Atty. Donald Tennant, Jr., Tennant Law Offices, 38 Fifteenth Street, Suite 100,
Wheeling, West Virginia 26003, for Defendants-Appellees Ronald and Jennifer
Rothenbuhler. Atty. Todd Kidlow, and Atty. Heidi Kemp, Emens Wolper Jacobs & Jasin
Law Firm, 250 West Main Street, Suite A, St. Clairsville, Ohio 43950, for Defendants-
Appellees Sharon Rothenbuhler et al. Atty Steven Silverman, Babst, Calland,
Clements & Zomnir, PC, Two Gateway Center, 6th Floor, Pittsburgh, PA 15222, for
Defendant-Appellee Eclipse Resources I, LP. Atty. Ryan Regel, Yoss Law Office, 122
North Main Street, Woodsfield, Ohio 43793, for Defendants-Appellees Constance and
Randy Smith.

Dated: March 31, 2021

D’APOLITO, J.

{¶1} Plaintiff-Appellant, Dr. Robert Leon O’Kelley, Jr. (purported mineral interest
owner) appeals the entry of summary judgment by the Monroe County Court of Common
Pleas in favor of Defendants-Appellees, Ronald Rothenbuhler, Jennifer Rothenbuhler,
Sharon Rothenbuhler, Kevin Rothenbuhler, Kenneth Rothenbuhler, Kristy Rothenbuhler
Lumbatis, Jason Lumbatis, Rothenbuhler Oil and Gas, LLC, Constance Smith, Randy
Smith (collectively “Rothenbuhler Appellees”) (surface owners/oil and gas lessors), and
Eclipse Resources I, LP (“Eclipse”)(oil and gas lessee) and the corresponding denial of
Appellant’s cross motion for summary judgment on Appellees’ counterclaim based on the
Marketable Title Act, R.C. 5301.47 et seq., (“MTA”).
{¶2} Appellant’s complaint is predicated upon a preservation notice filed
pursuant to the Dormant Mineral Act, R.C. 5301.56(C)(1) (“DMA”). Appellees’
counterclaims assert that the mineral interest was extinguished by operation of the MTA
prior to the filing of the preservation notice. The parties agreed to stay the resolution of
Appellant’s DMA claim, and file cross motions for summary judgment exclusively on
Appellees’ counterclaim, in recognition that the preservation notice would be ineffectual
if the MTA had extinguished Appellant’s purported mineral interest prior to the filing of the
notice.
{¶3} Because the root of title deed and the only title transaction occurring in the
forty years following the root, in both the surface and mineral interest chains of title,
contain only a general reference to the severed mineral interest, the judgment entry of

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the trial court finding that Appellant’s interest in the minerals was extinguished by
operation of the MTA is affirmed.
{¶4} Appellant argues in the alternative, and for the first time on appeal, that the
Rothenbuhler deed is not a proper root of title because it does not convey a fee simple
absolute, seeking to resurrect our decisions in Christman v. Wells, 7th Dist. Monroe No.
539, 1981 WL 4773 (Aug. 28, 1981) and Holdren v. Mann, 7th Dist. Monroe No. 592,
1985 WL 10385 (Feb. 13, 1985). In Senterra Ltd. v. Winland, 7th Dist. Belmont No. 18
BE 0051, 2019-Ohio-4387, 148 N.E.3d 34, modified on reconsideration, 7th Dist. Belmont
No. 18 BE 00512019-Ohio-5458, appeal allowed, 158 Ohio St.3d 1522, 2020-Ohio-3018,
145 N.E.3d 311, we opined that Christman and Holdren were no longer good law based
on the root of title in Blackstone v. Moore, 155 Ohio St.3d 448, 2018-Ohio-4959, 122
N.E.3d 132, which contained a specific reference to a prior reservation. However, issues
that are not raised before the trial court cannot be raised for the first time on appeal and
are waived. Vari v. Coppola, 7th Dist. Mahoning No. 18 MA 0114, 2019-Ohio-3475, ¶ 12,
appeal not allowed, 157 Ohio St.3d 1523, 2019-Ohio-5327, 137 N.E.3d 106, ¶ 12 (2019).
Accordingly, we decline to address this argument.

FACTS AND PROCEDURAL HISTORY

{¶5} Appellant filed his complaint to quiet title and for trespass, conversion, and
disgorgement of royalties on August 9, 2019 relating to the mineral interests underlying
two parcels situated in Adams Township, Monroe County: a portion of a roughly 182-
acre parcel owned by the Rothenbuhler Appellees, and a roughly 15-acre parcel owned
by Defendants, Gene and Darlene Rothenbuhler. Ownership of the mineral interest
underlying the second parcel was resolved by a stipulated judgment entry and, as a
consequence, only the mineral interest underlying the first parcel is at issue in this appeal.
(See 12/10/2019 J.E.)
{¶6} Eclipse filed its answer and counterclaim based on the MTA on September
25, 2019. On September 27, 2019, the Smiths filed their answer and counterclaim based
on the MTA. Ronald and Jennifer Rothenbuhler filed their answer and counterclaim
based on the MTA on September 30, 2019. That same day, Sharon Rothenbuhler, Kevin
Rothenbuhler, Kenneth Rothenbuhler, Kristy Rothenbuhler Lumbatis, Jason Lumbatis,

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and Rothenbuhler Oil and Gas, LLC, filed their answer and counterclaim based on the
MTA, as well as a motion to dismiss, or, in the alternative, motion for summary judgment.
Appellant filed timely answers to the respective counterclaims. On October 11, 2019,
Appellant filed an opposition brief to the motion to dismiss/for summary judgment. A reply
brief was filed on October 18, 2019.
{¶7} On February 5, 2020, the parties filed a joint motion to stay discovery on the
claims asserted in the complaint and to file cross-motions for summary judgment solely
on the MTA counterclaims. On April 13, 2020, after the matter was fully briefed by all
parties, the trial court entered summary judgment in favor of Appellees, finding that the
MTA applied to mineral interests, and that the mineral interest in this case was
extinguished by operation of the MTA in June of 2009.

THE SEVERANCE DEED

{¶8} The following facts are taken from the Kristy Rothenbuhler affidavits and the
documents attached to the summary judgment briefs. In 1893, William L. Morris and
Lorena M. Morris conveyed a 160-acre parcel of property in Monroe County by warranty
deed to Mary A. Zonker, but excepted and reserved the following mineral interest in 155
acres of the property:

All oil, gas and minerals (including coal) of whatsoever kinds with full right
to develop same and to operate on said premises therefore with the
incidental rights and privileges necessary to such development and
operation including among other things the right to locate and drill thereon
and therein oil wells and gas wells to lay pipes to and from said wells * * *

{¶9} On April 21, 1906, Mary A. Zonker conveyed a 14.219-acre tract from the
160-acre property to Joseph C. Rothenbuhler, predecessor-in-interest to Defendants,
Gene and Darlene Rothenbuhler. The 14.219-acre tract is the second parcel at issue in
the complaint.
{¶10} In a stipulated judgment entry, filed on December 10, 2019, final judgment
was entered regarding the ownership of the mineral interest in the 14.219-acre tract in

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favor of Appellant. Therefore, only the mineral interest in the remaining approximately
140-acre portion of the property is at issue in this appeal.

THE MINERAL INTEREST CHAIN

{¶11} William L. Morris died testate in March of 1939. In 1943, Harold W. Morris,
William Glenn Morris, Robert L. Morris, Ann McLean, and Adelaide Humphries, as heirs
of William L Morris, conveyed the mineral interest to Lorena A. Morris. That same year,
Lorena A. Morris conveyed the mineral interest by quit claim deed to William Lee
Humphries. No estate has been filed or administered in the Monroe County Probate Court
for Humphries through the date of the filing of the complaint. (2/28/20 Kristy Rothenbuhler
Aff., ¶ 8.)
{¶12} Humphries was married to Appellant’s sister, Sara O'Kelley Humphries.
(Appellant Aff., ¶ 3.) Appellant is Sara's only sibling. (Id., ¶ 4.) Sara and Humphries did
not have any children, and, when Humphries died in 1981, he was survived by Sara. (Id.,
¶ 5-6.) After Humphries’ death, Sara never remarried and never had any children. Sara
died (presumably intestate) on January 8, 2015, survived by Appellant. (Id., ¶ 7-9.) Thus,
upon Sara's death, Appellant inherited the mineral interest. According to the February
2020 Kristy Rothenbuhler affidavit, she conducted a title search on or about May 1, 2013,
and “there was no document on record in Monroe County conveying the Morris Interest
or anything else to [Sara or Appellant]”. (Rothenbuhler Aff., ¶ 6, 15.)

THE SURFACE CHAIN

{¶13} Appellees claim their interest in the minerals as successors of Mary A.
Zonker. The entire post-severance pre-root history of the surface title is attached to
Appellees’ cross motion for summary judgment.
{¶14} Through a series of conveyances, Mary A. Zonker's interest in the surface
became vested in Raymond E. and Helen L. Dennis. By deed dated June 9, 1969,
Raymond E. and Helen L. Dennis conveyed the surface to Lloyd Rothenbuhler
("Rothenbuhler Deed"). The Rothenbuhler Deed was filed of record in Monroe County on
June 16, 1969.

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{¶15} The Rothenbuhler Deed contains the following reference to a prior oil and
gas reservation:

Being the south east quarter of Section Nineteen (19), Township four (4)
and of Range four (4) containing 160 acres more or less. Except 20 acres
thereof conveyed by Mary B. [sic] Zonker to Joseph C. Rothenbuhler and
also excepting the oil and gas minerals including coal underlying the same
heretofore conveyed.

{¶16} Based on the filing date of the complaint (August 9, 2019), the most recent
transfer of the mineral interest or surface on or before August 9, 1979 (forty years prior to
the filing of the complaint) is the starting point for this Court’s analysis. Therefore, the
trial court correctly concluded that the Rothenbuhler Deed is the root of title, as that term
is defined by the MTA.
{¶17} During the forty years following the Rothenbuhler Deed, one transfer of the
parcel appears in the county records. A certificate of transfer was recorded on January
13, 1993, transferring the property from the Estate of Lloyd Rothenbuhler to Ronald and
Donald Rothenbuhler and Constance Smith.
{¶18} The property is described as “Parcel Six: Entire interest in 181.88-acre
parcel of real property situated in Adams Township, Monroe County, Ohio, (Auditor’s
description is R 4, T 4, S 19 pt se ne), the legal description is set forth in as Parcel Six in
the attached Schedule of Real Estate.” The description reads, in its entirety:

Parcel Six

Situated in Adams Township, Monroe County, Ohio, and bounded and
described as follows: Being the south east quarter of Section Nineteen (19),
Township four (4), and of Range four (4) containing 160 acres more or less,
except 20 acres thereof conveyed by Mary B. Zonker to Joseph C.
Rothenbuhler, and also excepting the oil and gas minerals including coal
underlying the same heretofore conveyed. Also excepting all easements
and right-of-ways of record.

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Prior deed reference: Deed from Raymond E. and Helen L. Dennis dated
June 9, 1969, which was filed for record on June 16, 1969, and recorded in
Deed Vol. 155, page 45.

STANDARD OF REVIEW

{¶19} This appeal is from a trial court judgment resolving a motion for summary
judgment. An appellate court conducts a de novo review of a trial court's decision to grant
summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C).
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before
summary judgment can be granted, the trial court must determine that: (1) no genuine
issue as to any material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, (3) it appears from the evidence that reasonable minds can
come to but one conclusion, and viewing the evidence most favorably in favor of the party
against whom the motion for summary judgment is made, the conclusion is adverse to
that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶20} "[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party's
claim." (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264
(1996). If the moving party carries its burden, the nonmoving party has a reciprocal
burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at
293. In other words, when presented with a properly supported motion for summary
judgment, the nonmoving party must produce some evidence to suggest that a
reasonable factfinder could rule in that party's favor. Doe v. Skaggs, 7th Dist. Belmont
No. 18 BE 0005, 2018-Ohio-5402, ¶ 11.
{¶21} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a
light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.

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ANALYSIS

ASSIGNMENT OF ERROR NO. 1

THE DMA, BEING THE SPECIFIC STATUTE GOVERNING THE
ABANDONMENT OF OIL AND GAS RIGHTS, SUPERSEDES AND
CONTROLS OVER THE MTA, THE GENERAL STATUTE GOVERNING
THE EXTINGUISHMENT OF ALL INTERESTS IN LAND, BECAUSE THE
TWO STATUTES IRRECONCILABLY CONFLICT.

{¶22} On December 2, 2020, the Ohio Supreme Court issued its opinion in West
v. Bode, -- Ohio St.3d --, 2020-Ohio-5473. In a 4-3 decision, the majority held that no
irreconcilable conflict exists between the DMA and the MTA, and, as a consequence, the
MTA applies to mineral interests. Appellant conceded at oral argument that the Ohio
Supreme Court’s decision in West governs this matter, and, therefore, Appellant’s first
assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

THE MINERAL INTEREST WAS NOT EXTINGUISHED UNDER THE
MTA.

{¶23} The General Assembly enacted the MTA in 1961 “to extinguish interests
and claims in land that existed prior to the root of title, with ‘the legislative purpose of
simplifying and facilitating land title transactions by allowing persons to rely on a record
chain of title.’” Corban v. Chesapeake Exploration, L.L.C., 149 Ohio St.3d 512, 2016-
Ohio-5796, 76 N.E.3d 1089, ¶ 17, quoting R.C. 5301.55. The MTA provides that a person
who has an unbroken chain of title of record to any interest in land for at least 40 years
has a “marketable record title” to the interest. R.C. 5301.48. Except as stated in R.C.
5301.49, a marketable record title “operates to extinguish” all interests and claims that
existed prior to the effective date of the root of title, R.C. 5301.47(A), and those preexisting
interests are “declared to be null and void,” R.C. 5301.50. The MTA extinguishes property
interests by operation of law after 40 years from the effective date of the root of title unless

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a saving event has occurred. Corban at ¶ 18. An interest that has been extinguished by
operation of the MTA cannot be revived. See R.C. 5301.49(D).
{¶24} R.C. 5301.49 sets out circumstances in which a marketable record title will
remain subject to interests that existed prior to the root of title. Those exceptions “‘serve
as a shield to protect’” the excepted interests from extinguishment. Spring Lakes, Ltd. v.
O.F.M. Co., 12 Ohio St.3d 333, 335, 467 N.E.2d 537 (1984), quoting Heath v. Turner,
309 N.C. 483, 493, 308 S.E.2d 244 (1983). As previously stated, the Ohio Supreme Court
has referred to the exceptions as “saving event[s].” Corban at ¶ 18.
{¶25} In part, R.C. 5301.49 provides that a marketable record title remains subject
to an interest that predates the effective date of the root of title when: (1) the preexisting
interest is specifically identified in the muniments that form the record chain of title, (2)
the holder of the preexisting interest has recorded a notice claiming the interest, in
accordance with R.C. 5301.51, or (3) the preexisting interest arises out of a title
transaction that was recorded subsequent to the effective date of the root of title. R.C.
5301.49(A), (B), and (D). West, supra, ¶ 16.
{¶26} Where an interest is inherent in the muniments of the chain of title, the MTA
operates to extinguish the interest if it is not specifically identified. In this appeal, Appellant
contends that the reference “and also excepting the oil and gas minerals including coal
underlying the same heretofore conveyed” in both the root of title and certificate of transfer
constitutes a specific reference. R.C. 5301.49 reads in pertinent part:

Such record marketable title shall be subject to:

(A) All interests and defects which are inherent in the muniments of which
such chain of record title is formed; provided that a general reference in
such muniments, or any of them, to easements, use restrictions, or other
interests created prior to the root of title shall not be sufficient to preserve
them, unless specific identification be made therein of a recorded title
transaction which creates such easement, use restriction, or other interest
***

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{¶27} The three-step inquiry announced by the Ohio Supreme Court in
Blackstone, supra, is derived from R.C. 5301.49(A). In Blackstone, the root of title was a
1969 deed conveying the real property from Carpenter to Blackstone. The Blackstone
deed read, in pertinent part: [e]xcepting the one-half interest in oil and gas royalty
previously excepted by Nick Kuhn, their [sic] heirs and assigns in the above described
sixty acres. Id. at ¶ 3.
{¶28} In order to determine whether the MTA extinguished the prior interest, the
Blackstone Court fashioned a three-step inquiry: (1) Is there an interest described within
the chain of title? (2) If so, is the reference to that interest a “general reference”? (3) If the
answers to the first two questions are “yes,” does the general reference contain a specific
identification of a recorded title transaction? Id. at ¶ 12.
{¶29} The Ohio Supreme Court found that the Kuhn reference was not a general
reference, but, instead, a specific reference, and determined at step two of the inquiry
that the mineral interest was not extinguished by the MTA. The Ohio Supreme Court
opined, “[b]ecause the reference to the Kuhn heirs was not a general reference, there is
no need to proceed to the third question—that is, whether a general reference contains a
specific identification of a recorded title transaction.” Id. at ¶ 15.
{¶30} The root of title and the subsequent certificate of transfer of the property at
issue in this appeal contain the following reference, “excepting the oil and gas minerals
including coal underlying the same heretofore conveyed.” In his summary judgment
briefs, Appellant argued that the clause “heretofore conveyed” modified the phrase “the
oil and gas minerals including coal.” However, on appeal, Appellant argues that the
clause “heretofore conveyed” modifies “the same,” that is, the clause refers to the surface
rights that are being conveyed in the deed. In other words, on appeal, Appellant argues
that the exception is a mere repetition, which contains no reference back to a prior deed.
{¶31} The parties do not dispute that the mineral interest at issue in this case is
described within the chain of title. The dispute arises with respect to the second
Blackstone inquiry, that is, whether the reference is a “general reference.” Id. at ¶ 12.
Appellant concedes that there is no specific identification of a recorded transaction in the
root of title or subsequent certificate of transfer, and, as a result, this appeal turns on the
general vs. specific step-two determination from Blackstone.

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{¶32} The Blackstone Court provided the following distinction between general
and specific references:

Because the term “general reference” is not defined in the act, we look to
the ordinary meaning of the term. Stewart v. Vivian, 151 Ohio St.3d 574,
2017-Ohio-7526, 91 N.E.3d 716, ¶ 26. “General” is defined as “marked by
broad overall character without being limited, modified, or checked by
narrow precise considerations: concerned with main elements, major
matters rather than limited details, or universals rather than particulars:
approximate rather than strictly accurate.” Webster's Third New
International Dictionary 944 (2002).

Our caselaw distinguishes between a general reference and a specific
reference: if a reference is specific, it is not a general reference. See Toth
[v. Berks Title Ins. Co.,] 6 Ohio St.3d at 341, 453 N.E.2d 639 [1983].
“Specific” is defined as “characterized by precise formulation or accurate
restriction (as in stating, describing, defining, reserving): free from such
ambiguity as results from careless lack of precision or from omission of
pertinent matter.” Webster's Third New International Dictionary at 2187.

Id. at ¶ 13-14.

{¶33} The Blackstones argued that a reference is general unless it includes the
volume and page number of the conveyance index, or, in the alternative, the names of
the grantor, grantee, and the date of the severance deed. They reasoned that the very
purpose of the MTA was to permit surface owners to establish record marketable title
based on a limited 40-year title search.
{¶34} However, the Ohio Supreme Court found no textual support in the MTA for
a volume and page number requirement, and, further, “declined to view the [MTA’s]
purpose as solely to limit the length of time required for title searches.” Id. citing Heifner
v. Bradford, 4 Ohio St.3d 49, 53, 446 N.E.2d 440 (1983). The Ohio Supreme Court
observed:

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The reference to the Kuhn royalty interest includes details and particulars
about the interest in question. And the interest is accurately described.
Moreover, the reference is “free from * * * ambiguity.” Id. The exception that
is noted in the 1969 deed includes information about the type of interest
created – “one-half interest in oil and gas royalty” and specifies by whom
the interest was originally reserved – “Nick Kuhn, their [sic] heirs and
assigns.” There is no question which interest is referenced in the 1969 deed.
Thus, it is a specific reference.

Id. at ¶ 15. Accordingly, the Blackstone Court held that “a reference that includes the
type of interest created and to whom the interest was granted is sufficiently specific [at
step two of the inquiry] to preserve the interest in the record title.” Blackstone, supra, ¶
18.

{¶35} Appellant argues that the Blackstone Court did not specifically require that
the name of the reserving party be included in the reference in order to find that the
reference is specific. Appellant cites Toth v. Berks Title Ins. Co., 6 Ohio St.3d 338, 452
N.E.2d 639 (1983) for the proposition that a Blackstone step-two reference need not
contain the reserving party’s name, but instead, need only repeat the reservation verbatim
in order to be specific.
{¶36} Toth sought damages pursuant to a title guaranty issued by the Berks
defendants in 1974, because the title guaranty did not disclose a setback use restriction
originating in a 1924 deed. The Berks defendants argued that disclosure of the setback
use restriction was unnecessary because it had been extinguished by the MTA.
{¶37} The Toth majority provided the following analysis:

In the present case the root of title of plaintiff, Edward Toth, is a 1928 deed
transferring title in the property herein involved from Henry H. Camp to Anna
M. Camp. The setback use restrictions were set forth in a 1924 deed which
had transferred the interest in the property to Henry H. Camp. Following
Henry H. Camp's transfer of the property in 1928 to Anna M. Camp, the
“root of title” transaction, no recorded act transpired which affected the

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Akron property until June 17, 1966, when the estate of Anna M. Camp
transferred title in the property to Meyer Myers, Louis S. Myers and Isidore
C. Myers. It was the Myerses who transferred the title in the Akron property
to plaintiff on October 18, 1974.

***

The 1928 deed had no mention of the setback use restrictions. The 1966
deed did contain a specific note which specifically referred to the setback
use restrictions which are the center of this controversy. The defendants-
appellees, Berks Title Insurance Company and Berks Akron Title Agency,
Inc., assert that the reference in the 1966 deed is not sufficient because it
is general and it points to a 1926 land plat as the source of the restriction.
It is defendants-appellees' contention that the 1926 plat cannot be part of
the muniments of plaintiff's record title because it is not a title transaction as
defined in R.C. 5301.47(F).

The 1966 deed is a muniment within the record marketable title of the
property now owned by the plaintiff. The 1966 deed specifically refers to the
very use restrictions which are the subject matter of the controversy
involved herein. R.C. 5301.49(A) states: “Such record marketable title shall
be subject to: * * * [a]ll interests and defects which are inherent in the
muniments of which such chain of record title is formed * * *.” The court
need not look further than this first clause of R.C. 5301.49(A) for the
settlement of the within controversy. * * * The reference in the 1966 deed to
the setback use restrictions was specific, not general, and as such, it is an
interest or defect which is “inherent in the muniments.” Any interest or defect
which is referred to specifically in a muniment within the marketable record
title of a parcel of property, as defined by R.C. 5301.48, is not extinguished
by the Ohio Marketable Title Act.

Id. at 340.

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{¶38} The 1966 deed reads, in relevant part:

[S]ubject to all legal highways, and are subject to restrictions on the Plat of
Fairlawn Heights Allotment, Part ‘B’ Section ‘D’ and recorded in Plat Book
34, pages 75-77of Summit County Records.

NOTE: The above plat shows a building line of 100 feet parallel and with
the westerly line of Beck Road a building line of 60 feet parallel and with the
northerly line of West Market Street for caption.

Toth v. Berks Title Ins. Co, 9th Dist. Summit No. 10488, 1982 WL 2693, *1-2; Toth, supra,
fn. 8.

{¶39} The dissent in Toth asserts that “the majority approach would subject
marketable record titles to interests predating the root of title upon a mere recitation of
the interest in a muniment of record after the root of title.” (Emphasis added) Id. at 343.
The dissent cautioned that the majority opinion subjected the property to the use
restrictions set forth in the 1966 conveyance despite the fact that it was not necessary to
analyze the 1924 deed creating the restrictions. The dissent further observed that,
without examination to the creating document, the accuracy of the description of the
interest is dependent solely on the muniment in which the reference is made. Id.
{¶40} On March 16, 2021, the Ohio Supreme Court further explained the
Blackstone step-two “general vs. specific” distinction in Erickson v. Morrison, -- Ohio St.3d
--, -- N.E.2d --, 2021-Ohio-746. In that case, the root of title deed and all of the recorded
transfers thereafter contained a verbatim restatement (with the exception of the word
“said”) of the original severance language, which read, “Excepting and reserving
therefrom all coal, gas, and oil with the right of said first parties, their heirs and assigns,
at any time to drive and operate for oil and gas and to mine for coal.” Id. at ¶ 5. The
surface owners argued that the reference was general because it did not identify the
reserving party, based on the Ohio Supreme Court’s holding in Blackstone.
{¶41} However, the Erickson Court opined that Blackstone “did not hold that a
reference is required to identify both the type of interest and by whom it is reserved to
preserve the interest.” (Emphasis in original) Id. at ¶ 24. The Erickson Court cited the

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1988 amendment of the MTA, which required greater specificity in order for recorded
notices to preserve preexisting interests, to demonstrate that the identity of the reserving
party was not required in order for the reference in the muniments of title to be specific:

[W]hen the General Assembly amended the requirements for recording a
notice of preservation to include the name of the interest’s owner, a
description of the property affected, and the recording information creating
a property interest affected by the notice, it did not also amend R.C.
5301.49(A) to require that a reference in the muniments of title contain that
same information in order to preserve a preexisting interest from being
extinguished after 40 years from the root of title.

Id. at ¶ 29.

{¶42} In defining the characteristics of a “general” reference, the Ohio Supreme
Court further observed that “R.C. 5301.49(A) is directed at “ ‘the common conveyance
practice for draftsmen to include in the deed description some such language as “subject
to easements and use restrictions of record.” ’ ” Id. at ¶ 30, quoting Smith, The New
Marketable Title Act, 22 Ohio St.L.J. 712, 717 (1961). The Erickson Court continued:

Dean Allan F. Smith explained that “[t]his is a device which is probably
adequate to protect the grantor from liability on his covenants for title in a
warranty deed should there be burdens of that type on record. This throws
the risk of title search on the purchaser.” Id. But such a general reference
leaves it unclear whether a prior interest in fact exists. And as Dean Smith
stated, “The Ohio Act * * * wisely adopted the provision in the Model Act
which makes such a general reference inadequate to preserve the ancient
interests even though the general reference appears in the muniments of
title which make up the forty-year chain.” Id.

Erickson, supra, ¶ 30.

{¶43} Because the surface owners' root of title and subsequent conveyances
“[were] made subject to a specific, identifiable reservation of mineral rights recited

Case No. 20 MO 009
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throughout their chain of title using the same language as the recorded title transaction
that created it,” the Erickson Court held that the reference was specific not general. In so
holding, the Ohio Supreme Court observed that the reference in Erickson did not contain
“vague, boilerplate language excepting any reservations that may – or may not – exist,”
but, instead, “a reference to a specific, identifiable reservation of mineral rights that can
be determined through a reasonable title search.” Id. at ¶ 3, 32.
{¶44} Although the Ohio Supreme Court’s recent decision in Erickson serves to
further clarify the Blackstone step-two “general vs. specific” distinction, we find
nonetheless that the reference at issue in the above-captioned case – “excepting the oil
and gas minerals including coal underlying the same heretofore conveyed” – is general
not specific. Simply stated, the reference lacks any “narrow precise considerations,”
“limited details,” or “particulars” as described in Blackstone.
{¶45} First, the reference is not a verbatim restatement of the original severance
language. The original severance deed excepts and reserves “[a]ll oil, gas and minerals
(including coal) of whatsoever kinds.” (Emphasis added.) The phrase in the reference at
issue in this appeal – “the oil and gas minerals including coal” – could refer to a prior deed
that severed all of the oil, gas, and coal, or a prior deed that severed less than all of the
oil, gas, and coal. Therefore, we find that the description of the interest lacks specificity.
{¶46} Next, the original severance language excepts and reserves to the grantor
the “full right to develop same and to operate on said premises therefore with the
incidental rights and privileges necessary to such development and operation including
among other things the right to locate and drill thereon and therein oil wells and gas wells
to lay pipes to and from said wells.” The reference at issue here omits the foregoing
language from the severance deed, which serves to describe in detail the rights of the
reserving party with respect to the mineral interest.
{¶47} Further, the parties dispute on appeal whether the clause "heretofore
conveyed" modifies the phrase "the oil and gas minerals including coal" or "the same."
We need not resolve the dispute over the language in the deed, because the mere fact
that the reference is susceptible to more than one interpretation is further evidence that
the reference is general not specific.
{¶48} Even assuming the “heretofore conveyed” modifies “oil and gas minerals

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including coal,” we find that the reference sounds to the reader like vague, boilerplate
language excepting reservations that may or may not exist, rather than a specific,
identifiable reservation of mineral rights using the same language that created it. Based
on the ambiguity of the reference, we find that it is general not specific. As a
consequence, we answer the second Blackstone inquiry in the affirmative, and find that
Appellant’s second assignment of error is meritless.

CONCLUSION

{¶49} In summary, we find that the MTA applies to mineral interests, and the root
of title deed and the only title transaction occurring in the forty years following the root, in
both the surface and mineral interest chains of title, contain only a general reference to
the severed mineral interest. Therefore, the judgment entry of the trial court finding that
Appellant’s interest in the minerals was extinguished by operation of the MTA is affirmed.

Donofrio, P.J., concurs.

Robb, J., concurs.

Case No. 20 MO 009
[Cite as O'Kelley v. Rothenbuhler, 2021-Ohio-1167.]

For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Monroe County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.