Tomechko v. Garrett

[Cite as Tomechko v. Garrett, 2021-Ohio-1377.]

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

GERALD J. TOMECHKO, TRUSTEE OF THE

GERALD J. TOMECHKO TRUST ET AL.,

Plaintiffs-Appellants,

v.

THOMAS GARRETT ET AL.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY
Case No. 20 NO 0473

Civil Appeal from the
Court of Common Pleas of Noble County, Ohio
Case No. 216-0065

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

JUDGMENT:
Affirmed in Part, Reversed in Part and Modified

Atty. Timothy Pettorini, Roetzel & Andress LPA, 222 South Main Street, Suite 400, Akron,
Ohio 44308 and Atty. Sara Fanning, Roetzel & Andress, LPA, Huntington Center, 41
South High Street, 21st Floor, Columbus, Ohio 43215, for Plaintiffs-Appellants, and
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Atty. C. Plummer and Atty. Haley Brown, Tribbie, Plummer, Church & Laplante, LLC.,
139 West Eighth Street, Cambridge, Ohio 43725, for Defendants-Appellees.

Dated:
April 2, 2021

Donofrio, J.

{¶1} Plaintiffs-appellants, Gerald J. Tomechko, Trustee of the Gerald J.
Tomechko Trust, and Denise M. Tomechko, Trustee of the Denise M. Tomechko Trust,
appeal from a Noble County Common Pleas Court judgment granting partial summary
judgment against them and in favor of defendants-appellees, Ruth Garrett, Dorothy
Johnson, William D. Garrett, Linda L. Garrett, Barbara A. Stover, Jack A. Stover, Robert
A. Garrett, Thomas L. Winland, Martha Jane Winland, Sharon Kay Gustina fka Sharon
Kay Miller, Rodona A. Dunfee, Charles William Dunfee, Patti L. Leasure, William Davis
Louthen, Jr., Constance S. Louthen, William H. Leininger, Cynthia K. Leininger, Charles
Winland, and Regina Winland.
{¶2} The parties agree to the following facts. Around 1957, Herbert Garrett and
John Garrett each owned an undivided one-half interest in the surface, mineral, and oil
and gas estates in a 60.24 acre tract of land in Beaver Township, Noble County, Ohio.
{¶3} Herbert Garrett died in 1965 and through his will, he left his one-half
interest to his wife, Mary Geneva Garrett, “for and during her natural life as long as she
remains my widow, and upon her death or remarriage, I give, devise, and bequeath said
real and personal property to my children, to be equally divided among them, absolutely
and in fee simple.” (Last Will and Testament of Herbert Garrett, Ex. A2 to Appellant’s
Motion for Partial Summary Judgment). Mary was also empowered to sell the interest in
the property for her support if necessary.
{¶4} On February 9, 1977, Mary conveyed her one-half interest in the property
to Coralee Garrett, the wife of John Garrett, through a Deed of Fiduciary, with the following
reservation for Mary: “RESERVING from the above-described one-half interest all the
mineral rights in and under” the property and other lands.
{¶5} On June 16, 1979, John and Coralee Garrett conveyed their property
interest to Lance Cramer, aka David Lance Cramer, “EXCEPTING a one-half interest in

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all mineral rights as reserved by Mary G. Garrett, Executrix of the estate of Herbert
Wesley Garrett.” Lance Cramer conveyed the property to James and Margaret Anderson
with the same reservation by Mary. On March 5, 1982, John and Coralee Garrett
conveyed to themselves the property for their joint lives, remainder to their survivors.
{¶6} Mary Garrett died on September 16, 1984.
{¶7} On March 8, 1989, the Andersons leased the oil and gas in the property
to Trans Atlantic Energy Corp. On the same date, they and John and Coralee Garrett
ratified the Anderson lease in a Ratification and Rental Division Order. This Order
provided that delay rentals be paid 50% to the Andersons and 50% to John and Coralee
Garrett.
{¶8} In 1991, two oil and gas wells were drilled on the property and started
producing oil and gas. They continued to produce oil and gas.
{¶9} On August 27, 1998, the Andersons conveyed the property to themselves
as Trustees of the Anderson Revocable Living Trust. On July 12, 2004, Coralee Garrett,
now a widow, conveyed all of her interest in the property to the Anderson Revocable
Living Trust via a quit-claim deed. In the quit-claim deed, it specifically stated that Coralee
Garrett released and quitclaimed to the Andersons “all the right, title, interest and claim
which the said Grantor has in and to the mineral rights, including any oil and gas” in the
property.
{¶10} On September 9, 2010, Margaret Anderson, as Successor Trustee of the
Anderson Family Living Trust, conveyed the property to Gerald J. and Denise M.
Tomechko. On July 15, 2013, the Tomechkos conveyed the property to themselves as
Gerald J. Tomechko, Trustee of the Gerald J. Tomechko Trust (1/2) and Denise M.
Tomechko, Trustee of the Denise M. Tomechko Trust (1/2).
{¶11} In 2013 and 2014, appellees, the various devisees and heirs of Herbert
and Mary Garrett, signed oil and gas leases to lease oil and gas under the property to
Gulfport Energy Corporation. The Memoranda of Lease are recorded.
{¶12} On May 1, 2014, Northwood Energy Corporation, a lessee under the
Anderson lease, notified appellants that it was reducing their royalty to 50% due to the
property reservation of minerals in the 1977 Deed of Fiduciary with Mary Garrett’s
reservation which was attached to her conveyance to Coralee Garrett.

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{¶13} The parties also agree to the following procedural history. On June 30,
2016, appellants filed a complaint which contained claims relating to the 1989 Ohio
Dormant Mineral Act and a claim for estoppel. Appellant Br. at 3. The trial court stayed
the case until the Ohio Supreme Court issued a decision in Corban v. Chesapeake
Exploration, LLC, 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, a case
concerning whether the 2006 version or the 1989 version of the Ohio Dormant Mineral
Act applied to claims asserted after 2006 alleging that rights to oil, gas, and other minerals
automatically vested in the surface land holder prior to 2006 due to abandonment. Id.
{¶14} The case was reinstated to the docket in October of 2016 and on
December 6, 2016, appellants filed a first amended complaint adding the following claims
which are the subject of the instant appeal: Count III, in which appellants sought a
declaration that they acquired interest in the oil and gas rights which appellees argue
were reserved in the Deed of Fiduciary; Count V, in which appellants sought a declaration
that the Deed of Fiduciary did not reserve any interest in the oil and gas rights; Count VIII,
in which appellants sought a declaration that the appellees’ Gulfport leases were null and
void and the Anderson lease covers all of the gas and oil rights in the property; and Count
IX, in which appellants sought an order quieting title in appellants against any claim
emanating from the Gulfport leases.
{¶15} On July 11, 2017, appellants propounded discovery requests on
appellees, including requests for admissions. One of the requests asked appellees to
“[a]dmit that the Deed of Fiduciary was intended to reserve the minerals underlying the
property, but not the oil or gas.” Appellees’ responses were due on August 8, 2017 and
they did not timely respond or request an extension of time to respond. On December
21, 2017, appellants sent appellees a letter informing them that their failure to timely
respond to the requests for admissions deemed the requests admitted under Civ. R. 36
and they requested that they respond to appellants’ other discovery requests. On
January 5, 2018, appellees responded to all of appellants’ discovery requests, including
the requests for admissions. The docket shows that the notice of service of discovery
responses was filed on January 8, 2018.
{¶16} On July 9, 2019, appellants filed a motion for partial summary judgment
on the above Counts of the first amended complaint, plus Count III, the adverse

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possession claim. Appellants asserted that Mary Garrett did not reserve an interest in oil
and gas from the property in the Deed of Fiduciary because she did not specifically
include the words “oil and gas” in the reservation and reserved only “minerals.” They also
argued that Mary Garrett and the Garrett Heirs failed to assert any interest in the oil and
gas prior to 2013 when they signed with Gulfport.
{¶17} Appellants further relied upon appellees’ failure to respond to their
requests for admissions, which included the request that they “[a]dmit the Deed of
Fiduciary was intended to reserve the minerals underlying the Property, but not the oil or
gas.” Appellants alternatively asserted that they were entitled to summary judgment
because they had acquired the interests by adverse possession.
{¶18} On February 3, 2020, the trial court issued a judgment entry after a
hearing. The court reviewed the history of transfer of the interests in the property,
including the reservation of rights in the Deed of Fiduciary. Relying on our opinion in
Sheba v. Kautz, 7th Dist. Belmont No. 15 BE 0008, 2017-Ohio-7699, the trial court found
that the Deed of Fiduciary was signed during a time when there was oil and gas activity
in the Noble County area. The court found that the best evidence of the reservation was
in the Deed itself and the reservation of “minerals” in the Deed of Fiduciary included a
reservation of oil and gas under the property. The court thus denied appellants’ motion
for partial summary judgment on this issue.
{¶19} As to adverse possession, the trial court relied upon our holding in Miller
v. Mellott, 7th Dist. Monroe No. 18 MO 0004, 2019-Ohio-504. The trial court found that
appellants failed to meet the exclusivity requirement of adverse possession because they
presented no evidence that they had affected deep rights prior to appellees’ execution of
the lease with Gulfport. The court held that the Gulfport leases “act as proof that the
‘Garrett Heirs’ have exclusive use of the deep rights.” However, the trial court did grant
appellants’ adverse possession claim relating to formations from the surface to 2,414 feet
below the surface of the property (the “Shallow Rights”) and found they were the owners
of oil and gas in the Shallow Rights.
{¶20} As to the Gulfport leases, the trial court held that they were valid leases
only as to horizons below the Shallow Rights and the Anderson Lease encumbered 100%

Case No. 20 NO 0473
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of the oil and gas in the Shallow Rights. The court further found that Counts I, II, IV, and
VI of appellants’ first amended complaint were rendered moot as a result of its holdings.
{¶21} Appellants raise three issues in their sole assignment of error. The
assignment of error states:

THE TRIAL COURT ERRED AS A MATTER OF LAW BY
GRANTING PARTIAL SUMMARY JUDGMENT TO DEFENDANTS-
APPELLEES.

{¶22} Appellants first assert that the trial court erred by ignoring appellees’ failure
to timely respond to their requests for admissions, including the one requesting that they
“[a]dmit the Deed of Fiduciary was intended to reserve the minerals underlying the
Property, but not the oil or gas.” They complain that the failure to timely respond deemed
the request admitted and was conclusive evidence that the Deed of Fiduciary did not
reserve oil and gas interests. Appellants rely on Civ.R.36 and our holding in Beacon
Sales Acquisition, Inc. dba North Coast Commercial Roofing Systems v. M&C Siding and
Roofing, LLC. Dba M&C Construction, 7th Dist. Mahoning No. 19 MA 54, 2020-Ohio-
1191, in support.
{¶23} Appellees acknowledge that they did not timely respond, but they assert
that they did ultimately respond and denied the requests for admissions. They argue that
no prejudice occurred from their delay in responding because they responded well before
the motion for summary judgment was filed and the hearing on the motion was held. They
also point out that they disputed this issue in their answer, which put appellants on notice
of their denial and dispute of appellants’ interpretation of the reservation language.
{¶24} Civ.R.36(A)(1) provides in relevant part that:

The matter is admitted unless, within a period designated in the
request, not less than twenty-eight days after service of the request
or within such shorter or longer time as the court may allow, the party
to whom the request is directed serves upon the party requesting the
admission a written answer or objection addressed to the matter,
signed by the party or by the party's attorney.

Case No. 20 NO 0473
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Civ.R.36(A)(1). Civ.R.36(B) provides in relevant part:
B) Effect of Admission. Any matter admitted under this rule is conclusively
established unless the court on motion permits withdrawal or amendment
of the admission. Subject to the provisions of Civ. R. 16 governing
modification of a pretrial order, the court may permit withdrawal or
amendment when the presentation of the merits of the action will be
subserved thereby and the party who obtained the admission fails to satisfy
the court that withdrawal or amendment will prejudice the party in
maintaining his action or defense on the merits.

Civ.R.36(B).
{¶25} In Beacon Sales, we upheld the trial court’s grant of summary judgment
for Beacon Sales after it relied upon the deemed admissions of M&C Siding’s due to M&C
Sidings’ failure to timely respond to its requests for admissions. 7th Dist. Mahoning No.
19 MA 54, 2020-Ohio-1191. We reviewed Civ.R.36 and found that M&C Siding had an
opportunity to ask the court to withdraw the admissions per Civ.R. 36(B) and failed to do
so, filed their responses after Beacon Sales filed its motion for summary judgment, and
failed to rebut Beacon Sales’ motion for summary judgment with any evidence
demonstrating a genuine issue of material fact. Id. We concluded that:

Because appellants failed to timely respond to appellee's request for
admissions, the requests for admissions were deemed admitted by
the Civil Rules. Those admissions were then proper summary
judgment evidence. And because appellants failed to offer any
proper summary judgment evidence that would create a genuine
issue of material fact, the trial court appropriately granted summary
judgment in appellee's favor.

Beacon Sales, at ¶ 30. In CitiMortgage, Inc. v. Beam, 7th Dist. Mahoning, No. 13 MA 62,
2014-Ohio-3809, at ¶ 5, we found that the trial court did not abuse its discretion by
denying Beams’ motion to allow them to respond to CitiMortgage’s requests for
admissions which was filed four months after the requests were served, three months
after the requests were deemed admitted, and two months after CitiMortgage filed its

Case No. 20 NO 0473
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motion for summary judgment. We held that while Ohio courts prefer to decide cases on
their merits and “not through the artificial operation of procedural rules,” the Beams did
not offer any evidence to support a conclusion that withdrawing their admissions was
necessary in order to resolve the case. Beam at ¶ 11 (citations omitted).
{¶26} We find the instant case distinguishable from Beacon Sales and Beam.
Here, the trial court did not address the issue of deemed admissions in its decision and
proceeded to decide the motion for partial summary judgment on the merits based on
briefs from both parties, exhibits, and oral argument. In Beacon Sales and Beam, the trial
courts addressed the issue of deemed admissions directly. In addition, appellees in the
instant case responded to the requests for admissions well before appellants filed the
motion for partial summary judgment and one year and eight months before a hearing
was held on that motion. In Beacon and Beam, the parties had not requested or moved
to withdraw the admissions until well after the motions for summary judgment were filed
and pending. Further, and unlike Beacon Sales and Beam, appellants in this case
presented evidence under Civ. R. 56(C) to raise a genuine issue to be resolved by the
trial court.
{¶27} Accordingly, this assertion lacks merit and is overruled.
{¶28} Appellants also assert that the trial court erred by denying their motion for
partial summary judgment because the reservation language in the Deed of Fiduciary did
not reserve any interest in the oil and gas in the one-half of the property.
{¶29} An appellate court reviews a trial court’s summary judgment ruling de
novo. Comer v. Risko,106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus,
we apply the same test as the trial court in determining whether summary judgment was
proper. A court may grant summary judgment only when (1) no genuine issue of material
fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) the
evidence can only produce a finding that is contrary to the non-moving party. Mercer v.
Halmbacher, 9th Dist. Summit No. 27799, 2015-Ohio-4167, ¶ 8; Civ.R. 56(C). The initial
burden is on the party moving for summary judgment to demonstrate the absence of a
genuine issue of material fact as to the essential elements of the case with evidence of
the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). A “material fact” depends on the substantive law of the claim being litigated.

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Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986).
{¶30} If the moving party meets its burden, the burden shifts to the non-moving
party to set forth specific facts to show that there is a genuine issue of material fact. Id.;
Civ.R. 56(E). “Trial courts should award summary judgment with caution, being careful to
resolve doubts and construe evidence in favor of the nonmoving party.” Welco Industries,
Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993).
{¶31} Appellants cite to our holding in Sheba v. Kautz, 7th Dist. Belmont No. 15
BE 0008, 2017-Ohio-7699 and two cases from the Ohio Fifth District Court of Appeals,
Gordon v. Carter Oil Co., 19 Ohio App. 319 (5th Dist. 1924) and Muffley v. M.B. Operating
Co., Inc., 5th Dist. Stark No. CA-6910, 1986 WL 12348 for support. They contend that
these cases establish that a reservation of “minerals” in a conveyance of property does
not necessarily include a reservation to the property’s oil and gas interests. Appellants
conclude that Mary Geneva Garrett’s reservation did not include the oil and gas interests
because she did not specifically state “oil and gas” in the reservation, but merely stated
a reservation to only the “mineral rights” in and under the property. They further assert
that both parties operated as if the reservation did not include oil and gas because
appellees took no action until the 2013 Gulfport lease and by that time, appellants had
already leased oil and gas interests.
{¶32} In the case of contracts, deeds, or other written instruments, the
construction of the writing is a matter of law, which is reviewed de novo. Long Beach
Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576, 697 N.E.2d 208 (1998). Under a de novo
review, an appellate court may interpret the language of the contract, substituting its
interpretation for that of the trial court. Witte v. Protek Ltd., 5th Dist. Stark No.
2009CA00230, 2010-Ohio-1193, ¶ 6, citing Children's Medical Center v. Ward, 87 Ohio
App.3d 504, 622 N.E.2d 692 (2d Dist.1993).
{¶33} Written instruments “are to be interpreted so as to carry out the intent of
the parties, as that intent is evidenced by the contractual language.” Skivolocki v. East
Ohio Gas Co., 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus.
“When construing a deed, a court must examine the language contained within the deed,

Case No. 20 NO 0473
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the question being not what the parties meant to say, but the meaning of what they did
say, as courts cannot put words into an instrument which the parties themselves failed to
do.” Johnson v. Consol. Coal Co., 7th Dist. Belmont No. 13 BE 3, 2015-Ohio-2246, ¶ 15
quoting, McCoy v. AFTI Properties, Inc., 10th Dist. Franklin No. 07AP-713, 2008-Ohio-
2304, ¶ 8. If the terms of the written instrument are clear and unambiguous, courts must
give the words their plain and ordinary meaning and may not create a new contract by
finding the parties intended something not set out in the contract. Alexander v. Buckeye
Pipe Line, 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978).
{¶34} But when the plain language of a written instrument is ambiguous, then a
court can look to parol evidence to resolve the ambiguity and ascertain the parties' intent.
Illinois Controls, Inc. v. Langham, 70 Ohio St.3d 512, 521, 639 N.E.2d 771 (1994); City of
Steubenville v. Jefferson Cty., 7th Dist. Jefferson No. 07JE51, 2008-Ohio-5053, ¶ 22.
Terms in a contract are ambiguous if their meanings cannot be determined from reading
the entire contract, or if they are reasonably susceptible to multiple interpretations. First
Natl. Bank of Pennsylvania v. Nader, 2017-Ohio-1482, 89 N.E.3d 274, ¶ 25 (9th Dist.).
Parol evidence is used only to interpret the terms, and not to contradict the terms. Id.,
citing Blosser v. Enderlin, 113 Ohio St. 121, 134, 148 N.E. 393 (1925). “The decision as
to whether a contract is ambiguous and thus requires extrinsic evidence to ascertain its
meaning is one of law.” Nader, quoting Ohio Historical Soc. v. Gen. Maintenance and
Eng. Co., 65 Ohio App.3d 139, 146, 583 N.E.2d 340 (10th Dist.1989).
{¶35} In Sheba, we reviewed language in an 1848 deed which conveyed
property with a reservation to “the sole and exclusive right to all the minerals and coal
lying” under a part of land transferred, giving the grantors the “right & privilege to mine
the same” and explaining that “[t]he meaning & interest of the above exception is to
reserve the coal and mineral privileges under the whole” of the tract of land. 2017-Ohio-
7699 ¶ 3. The trial court granted summary judgment and held that the references to
“mining” in the deed reservation showed the intent to reserve only coal and other minerals
that were mined, and not oil and gas, which are migratory minerals. Id. at 8.
{¶36} We began by acknowledging that “[i]n general, minerals include oil and
gas.” Sheba at ¶ 17 (citations omitted). We reviewed a number of cases and in particular,
Detlor v. Holland, 57 Ohio St. 492, 504, 49 N.E. 690 (1898). In Detlor, the Ohio Supreme

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Court held that an 1890 deed did not include oil and gas interests when it conveyed a
mining right in lands to “all the coal of every variety, and all the iron ore, fire clay, and
other valuable minerals” with the right to use the surface of the land necessary “to facilitate
the mining and removal of such coal, ore, or other minerals.” Id. at 502-504. To determine
the intent of the parties, the Ohio Supreme Court looked at the deed as a whole, applied
rules of construction to its terms, and explained that the deed terms had to be construed
in light of the oil developments near the property at the time that the deed was
constructed, which was in February of 1890. Id. The Supreme Court found that little oil
was being produced near the property at that time and the parties were not aware of it.
Id. The Court held that there was no evidence showing that the parties intended to include
oil and gas in the conveyance. Id.
{¶37} In Sheba, we reviewed Detlor and Ohio appellate cases applying the
principles in that case. We applied these principles to the 1848 deed, and affirmed the
trial court’s decision finding that the deed reservation did not reserve oil and gas interests
in the property. Id. We held:

Considering the principles in Detlor, the much earlier deed in this
case, the lack of evidence that oil and gas production were
contemplated at the time or place of conveyance, and the state's
history of oil and gas production, this court overrules this assignment
of error and upholds the trial court's decision finding the 1848 deed
did not reserve oil and gas interests.

Id. ¶ 35. We found that the Detlor holding suggested that: “the more recent the deed, the
more likely it is oil and gas were intended to be included as minerals.” Id. ¶ 31.
{¶38} Applying Sheba, the trial court in this case held that Mary Geneva Garrett’s
deed reservation included oil and gas because there was oil and gas development and
activity in Noble County in 1977 when the Deed of Fiduciary was executed. Appellants
assert that the deed reservation language must be construed against appellees because
it is ambiguous. They further contend that appellees’ inaction on the property until 2013
and their action on the oil and gas interests showed that both parties acted as if oil and
gas were not reserved in the Deed of Fiduciary.

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{¶39} We find no merit to appellants’ assertions. Appellants failed to produce
evidence which showed that the reservation had limiting language like that in Detlor.
Thus, this Court looks to the language used in the reservation and the surrounding
circumstances of oil and gas development at the time of the reservation. The language in
the Deed of Fiduciary states that Mary Geneva Garrett was “RESERVING from the
above-described one-half interest all the mineral rights in and under” the property
(emphasis added). Further, appellants failed to establish that oil and gas development
was not occurring in Noble County in 1977 when the reservation was made. In fact, the
trial court found otherwise.
{¶40} Even if we find the reservation language ambiguous and construe it
strongly against appellees, appellants fail to provide legal support to find that appellees
were required to take affirmative steps, such as leasing the oil and gas interests, in order
to show their intent to reserve those interests. And appellants failed to present parol
evidence rebutting a finding that Mary Geneva Garrett’s reservation included oil and gas.
She reserved “all mineral rights in and under” the property based upon the interests set
forth in the will of Herbert Garrett, who bequeathed to her “[a]ll the real and personal”
property “of every kind and description, wheresoever situate,” that he owned or had a
right to dispose of. He granted Mary Geneva Garrett the power to sell and dispose of
said property for her support and maintenance. (Partial Motion for Summary Judgment,
Ex. A2). He bequeathed “said real and personal property” given to Mary to the Garrett
Heirs upon Mary’s death or remarriage, “to be divided equally among them, absolutely
and in fee simple.” “(Partial Motion for Summary Judgment, Ex. A2)” The reservation
language in the Deed of Fiduciary to “all mineral rights in and under the property”
correlates to the original bequest to “all the real” property from Herbert Garrett.
{¶41} For these reasons, appellant’s assertion that the Deed of Reservation did
not reserve the oil and gas interests lacks merit and is overruled.
{¶42} Finally, appellants assert that even if the Deed of Fiduciary reserved the
one-half interest in the oil and gas, they have adversely possessed those interests and
the trial court erred by finding that they adversely possessed only the shallow rights and
not the deep rights as well. Appellants maintain that under the Anderson Lease, they
adversely possessed the oil and gas on the surface and below when they entered into a

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lease with Trans Atlantic, leased the entire oil and gas estate in the property, authorized
Trans Atlantic to drill for and produce oil and gas, oil and gas were produced, and they
were paid royalties for the production. They contend that because the lease did not
contain any depth limitation, it covered all formations below the surface to the center of
the Earth and not just the shallow rights. They conclude that they adversely possessed
all strata and the two wells on the property constituted open, obvious, notorious,
continuous and exclusive possession of all of the interests in the property, including deep
rights.
{¶43} In Grace v. Koch, 81 Ohio St.3d 577, 692 N.E.2d (1998) the Ohio
Supreme Court held that in order to establish adverse possession, “a party must prove
by clear and convincing evidence, exclusive possession and open, notorious, continuous,
and adverse use for a period of twenty-one years.” In Miller v. Mellott, we held that:

Minerals which have been severed from the title to the surface may
be acquired by adverse possession, but this can take place only
when the possession is actual, continuous, open, notorious and
hostile. It cannot be accomplished by secret trespass upon the
owner's rights. It has been held in many cases that where there has
been a severance of the minerals from the surface, neither the owner
of the surface nor the owner of the minerals can claim the other's
estate merely by force of the possession of his own estate. Neither
does the owner of the minerals lose his right by mere nonuse. His
title can only be defeated by acts which actually take the minerals
out of his possession.

“7th Dist. Monroe No. 18 MO 0004, 2019-Ohio-504, ¶35, citing Gill v. Fletcher, 74 Ohio
St. 295, 78 N.E. 433, 113 Am.St.Rep. 962 (1906); Yoss v. Markley, 68 N.E.2d 399 (CP)
(1946); Harper v. Jones, 35 O.O. 524, 74 N.E.2d 397 (CP) (1947).

{¶44} We further held in Mellott that courts look to the acts of those claiming
adverse ownership and they must establish proof that they met all of the elements of
adverse possession for 21 years. Mellott, 2019-Ohio-504, ¶ 37 (7th Dist.), citing Koch,
(1998), 81 Ohio St.3d 577, 692 N.E.2d 1009, syllabus. We held that in order to establish

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the actual possession element, a claimant has to perform activities which show
ownership. Mellott, 2019-Ohio-504, ¶ 37 (7th Dist.), citing Vanasdal v. Brinker, 27 Ohio
App.3d 298, 500 N.E.2d 876 (1985). We noted that the courts have divided possession
in such cases as those which are productive uses and those which are mere
maintenance. Only productive uses are sufficient for actual possession and this also
applies to mineral interests that are severed. Id. at ¶ ¶16, 17, 18. Citing Ohio Supreme
Court law, we held that a productive use is any that “takes the mineral out of the record
owner’s possession.” Id. citing Gill, 74 Ohio St. 295, 78 N.E. 433 (1906). This requires
the actual development of the oil and gas mineral rights. Id.
{¶45} In the instant case, the trial court found that the best evidence of whether
appellants adversely possessed the rights that were leased to Gulfport by appellees was
whether those rights were subjected to use or affected by appellants. The court held that
appellants did not use or affect the deep rights before appellees’ lease with Gulfport and
thus they failed to establish the exclusivity requirement for adverse possession. The court
found that the Gulfport leases were proof that appellees had exclusive use of the deep
rights.
{¶46} However, the court determined that appellants adversely possessed the
shallow rights or the formations from the surface to 2,414 feet below the surface of the
property based on their leases with Trans Atlantic. Counsel for appellants stated at the
hearing that appellees did not raise the issue of separation of shallow rights from deep
rights and thus it was not before the court. The court nevertheless decided this issue.
{¶47} Appellants are correct that John and Coralee Garrett, then the Andersons,
and now appellants, took actions from 1991 to August of 2013 which resulted in leasing
with and authorizing Trans Atlantic to drill and produce oil and gas. However, mere
leasing of the oil and gas interests does not suffice to establish actual or exclusive
possession of the deep rights. Mellott, 2019-Ohio-504, ¶ 35. While appellees were not
required to act to establish their ownership, appellants took action to exclude appellees
and oil and gas were actually produced from the two wells placed on the property through
Trans Atlantic, and appellants were paid 100% of the royalties from that production. This
actual development of the oil and gas rights took the minerals out of appellees’
possession. Id. Accordingly, appellants’ lease which constructed wells on the property

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and the drilling and production of oil and gas on the property is considered a productive
use constituting actual possession for adverse possession purposes. Mellott, at ¶ 38.
{¶48} However, the trial court went on to separate the shallow rights from the
deep rights, finding that appellants did not establish adverse possession of the deep
rights. Appellants concede that the wells developed under the lease with Trans Atlantic
produced oil and gas from only the shallow rights. (Appellant Brief at 26). However, they
cite Humphries v. Huffman, 33 Ohio St. 395, 403 (1878) and assert that they acquired all
shallow and deep rights from the one-half interest under color of title. They submit that
“under long-standing Ohio law, if a person claiming title to a property by adverse
possession claims under color of title, the adverse claimant’s use of a portion of the
property will extend to the entire property, even if the adverse claimant only occupied part
of the property during the 21-year period of adverse possession.” Id. They assert that
the production of oil and gas from the surface extends to include the deep rights and they
rely upon the fact that the Anderson lease described the entire property, including all
subsurface strata.
{¶49} We note that appellees did not cross-appeal on the adverse possession
decision made by the trial court. However, they contend in their appellate brief that since
appellants’ oil and gas production extended only to the shallow rights, appellants still had
to provide clear and convincing evidence of all of the elements of adverse possession in
order to adversely possess the deep rights in the property. They submit that appellants
never exerted control over the deep rights and the mere execution of the lease which
extended to all strata is insufficient to warrant adverse possession when production came
only from the shallow rights.
{¶50} Each adverse possession case rests on its peculiar facts. Oeltjen v. Akron
Associated Invest. Co., 106 Ohio App. 128, 130, 153 N.E.2d 715 (9th Dist. 1958). In Gill
v. Fletcher, 74 Ohio St. 295, 305-306, 78 N.E. 433 (1906), the Ohio Supreme Court held
that, “[a] tenant in common cannot assert title by adverse possession against his co-
tenant unless he shows a definite and continuous assertion of adverse right by overt acts
of unequivocal character clearly indicating an assertion of ownership of the premises to
the exclusion of the right of the co-tenant.” The Ohio Supreme Court held that “[a]ctual
possession of the surface and constructive possession of the mineral under color of

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deeds will not be sufficient. It must be an actual interference with the seisin of plaintiffs
with denial of their title.” Id. at 306. Proof of long-continued possession under a claim of
ownership and absence of a titleholder claim alone are insufficient to affirm summary
judgment. See Hardaway v. Nixon, 544 S.W.3d 402, 409 (Tex. App. 2017).
{¶51} In the instant case, appellants and appellees were co-tenants of the oil
and gas rights. In order to adversely possess appellees’ one-half interest, appellants
must have taken an overt act of unequivocal character that clearly showed an assertion
of ownership by appellants to the exclusion of appellees. Gill, 74 Ohio St. at 306. Mere
possession is insufficient “because that possession is presumed consistent with the other
co-tenants’ right to enter the land at any time.” Reel v. Reel, 11th Dist. Trumbull No. 2016-
T-0038, l2016-Ohio-8116, ¶ 46 (11th Dist.), quoting Pottmeyer v. Douglas, 4th Dist.
Washington No. 10CA7, 2010-Ohio-5293, ¶ 32. However, actual notice of ouster is not
required. Elder v. McClaskey, 70 F. 529 (C.C.A. 6th Cir. 1895). The trial court here found
that appellants had sufficiently established the elements of adverse possession against
appellees when it found in favor of appellants.
{¶52} We agree. Appellants entered into a lease with Trans Atlantic, and
through that lease began drilling on the property, and oil and gas were produced. They
drilled and produced oil and gas for over 21 years from 1991 to August of 2013. Appellees
did not check on the property or records of any leases or encumbrances for drilling on the
property. Had they done so, they would have noticed the two wells or the lease
encumbrance. Further, the records would show they had received no royalty payments
despite the placement of the wells on the property via appellants’ lease with Trans Atlantic
which were producing oil and gas for over 21 years. These facts sufficiently establish
overt acts of unequivocal character asserting ownership by appellants to appellees’
exclusion.
{¶53} However, the trial court further held that because appellants had drilled
from the surface to only 2,414 feet below the surface of the land, it did not use the deep
rights and therefore could not establish exclusivity for adverse possession of the deep
rights. The court found that one can only possess that which he has used and therefore
appellants had adversely possessed only the shallow rights.

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{¶54} Appellants contend that because they adversely possessed the one-half
oil and gas estate under color of title, their adverse possession extends to the entire one-
half, which includes the deep rights. Appellees agree with the trial court that appellants
can only adversely possess that which they actually possess, which in this case is the
shallow rights. They liken the entire one-half interest of shallow and deep rights to one
who claims ownership by adverse possession over another’s tract of land merely by
possessing a small corner of the tract.
{¶55} Neither party cites cases directly addressing the vertical limits of an
adverse possessor’s rights to minerals and we find no caselaw on point. In Diederick v.
Ware, 288 S.W.2d 643, 645-646 (C.A. Ky. 1956), the Kentucky trial court found that the
appellee, owner of the surface of a 56-acre tract, became the adverse possessor of the
minerals underneath the surface after he met the adverse possession elements, including
the clear repudiation to the owner of the mineral rights for the minerals that were being
claimed adversely. The trial court found that the surface owner became the adverse
possessor of the minerals based on his operation of two oil wells for the requisite statutory
period of limitations. The trial court did not discuss whether the appellee had adverse
possession of the oil under the entire tract of land.
{¶56} After agreeing with the trial court concerning adverse possession of the
minerals, the Kentucky Court of Appeals noted that caselaw was not uniform in
determining whether working part of a mineral estate is sufficient to give title to the mineral
underlying the whole of it. Diederich, 288 S.W.2d 643, 646-647 (citations omitted). The
court found that the operation of the two wells on the property modified the subterranean
structure under the large tract of land and this constituted constructive possession of all
of the minerals underlying the entire 56-acre estate. Id. at 646-647. The court discussed
the fugacious nature of oil and gas and how it alters property and the strata upon
withdrawal of oil and gas by drilling. Id. The court held that the adverse possessors
exercised constructive possession over all of the minerals in the entire tract of land due
to this alteration and permeation of oil and gas. Id.
{¶57} In the instant case, we find the same. Adverse possession of the deep
rights should follow the shallow rights due to the alteration of the surface and subsurface
from drilling and removing the oil and gas. Merely because drilling had not yet affected

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the deep rights should not yield a finding that there is no adverse possession of the deep
rights. The Court finds that appellee possesses the deep rights in this case based upon
the adverse possession of the shallow rights, the permeating nature of the drilling and
production of oil and gas, and the lease with Trans Atlantic which provided for drilling to
all strata.
{¶58} For these reasons, appellant’s assertion that adverse possession of the
shallow rights included the deep rights has merit.
{¶59} In conclusion, the trial court’s judgment is hereby affirmed in part, reversed
in part, and modified. We affirm that part of the trial court’s judgment holding that the
language of the Deed of Fiduciary included oil and gas. We also affirm the trial court’s
granting of partial summary judgment in favor of appellants as to adversely possessing
from the surface to the shallow rights of the property. However, we reverse that part of
the trial court’s judgment separating the deep rights and denying adverse possession of
the deep rights to appellants. We hereby modify the trial court’s judgment to also include
adverse possession of the deep rights by appellants.

Robb, J., concurs.

D’Apolito, J., concurs.

Case No. 20 NO 0473
[Cite as Tomechko v. Garrett, 2021-Ohio-1377.]

For the reasons stated in the Opinion rendered herein, the assignment of error is
with merit in part and overruled in part. It is the final judgment and order of this Court that
the judgment of the Court of Common Pleas of Noble County, Ohio, is affirmed in part,
reversed in part, and modified. This Court affirms that part of the trial court’s judgment
holding that the language of the Deed of Fiduciary included oil and gas. This Court also
affirms that part of the trial court’s judgment in favor of appellants as to adversely
possessing from the surface to the shallow rights of the property. This Court reverses the
trial court’s judgment separating the deep rights and denying adverse possession of the
deep rights to appellants. We hereby modify the trial court’s judgment to also include
adverse possession of the deep rights by appellants.
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.