dissenting. Because I feel the majority opinion gravely misconstrues R.C. 5301.49 (A), I am forced to dissent.
The majority interprets the first clause of R.C. 5301.49 (A) to apply to situations where there is a “specific” reference to an interest created prior to the effective date of the root of title. As a consequence, the majority reasons that the latter portion of R.C. 5301.49 (A) is limited to situations where there is a general reference to an interest created prior to the root of title. The majority concludes that, since the use restrictions involved in the case at bar were specifically referred to in the 1966 conveyance,8 the use restrictions were not extinguished by operation of the Marketable Title Act. I am unable to find any support in R.C. 5301.49 (A) for creation of the majority’s specific versus general distinction.
R.C. 5301.49 provides in 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 * *
In general, the Marketable Title Act operates to extinguish interests and claims in existence prior to the effective date of the root of title. See R.C. 5301.47 (A) and 5301.50. However, R.C. 5301.49 and 5301.51 provide that certain interests in existence prior to the root of title may be preserved if properly noted subsequent to the root of title. As such, the Marketable Title Act does not bear upon interests affecting the realty which are created subsequent to the date of the root of title.
In consonance with the foregoing principles, the first clause of R.C. 5301.49 (A) means simply that the Marketable Title Act does not extinguish interests and defects which appear in muniments within the chain of record title. The reasoning is clear — the Marketable Title Act was not intended to extinguish those interests created prior to the root of title where there is adequate notice of the existence of the interest. In Heifner v. Bradford (1983), 4 Ohio St. 3d 49, this court stated at page 52, fn. 4, that one of the purposes of the Marketable Title Act was as follows:
“ ‘The Marketable * * * Title Act is also a recording act in that it provides for a simple and easy method by which the owner of an existing old interest may preserve it. If he fails to take the step of filing the notice as provided, he has only himself to blame if his interest is extinguished. The legislature did not intend to arbitrarily wipe out old claims and interests without affording a means of preserving them and giving a reasonable period of time within which to take the necessary steps to accomplish that purpose.’ * *
Nevertheless, the General Assembly has provided in the latter portion of *343R.C. 5301.49 (A) that, in order for an interest appearing in a muniment within the chain of record title to be preserved, “specific identification be made therein of a recorded title transaction which creates such * * * interest * * (Emphasis added.) In the case at bar, the reference in the 1966 conveyance makes no mention whatsoever of the fact that the use restriction was created in a 1924 recorded deed. As a result, R.C. 5301.49 (A) does not operate to preserve the use restriction, contrary to the majority’s decision. Appellant’s marketable record title is therefore not subject to the use restrictions created by the 1924 deed, set forth in the 1926 plat book, and referred to in the 1966 conveyance.
I do not attach significance to the term “general” as that word is used to purportedly modify the term “reference” in R.C. 5301.49 (A). Under the majority’s view, a preliminary question in every title examination will be whether reference to an interest in a muniment within the chain of record title is specific or general. That being the case, virtually every title examination in which a reference is made to an interest created prior to the root of title will be subject to litigation on the specific-general issue. The majority’s interpretation of R.C. 5301.49 (A) potentially ties up countless title examinations for years in the courts. While I do not believe that the purpose of the Marketable Title Act was to facilitate simplistic title examinations, I cannot believe the General Assembly intended the result reached by the majority when enacting the Marketable Title Act, and R.C. 5301.49(A) in particular.
Moreover, 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. In my view, the majority disregards the dangers of its position. For instance, the majority determines that appellant’s property is subject to the use restrictions set forth in the 1966 conveyance despite the fact that it is not necessary to analyze the document creating those restrictions. In the case sub judice, the parties are aware that the restrictions were created in a 1924 recorded deed. However, in the future, a court must impose use restrictions, easements, and other interests on property when such restrictions are described in a muniment recorded after the root of title without consideration of the document creating the restrictions. Thus, without reference to the creating document, the accuracy of the description of the interest is dependent solely on the muniment in which reference is made to the interest. The majority has evidently ignored or has not foreseen the possibility that such interest may be inaccurately transcribed, through fraud or inadvertence, from the creating document. Nonetheless, the only criterion that the majority requires prior to imposition of the restriction is that the interest be completely described in the muniment. Query: unless examination is made of the creating document, is it not literally impossible to determine whether the use restriction, easement, or other interest has been accurately or fully described in the subsequent muniment? I am convinced the General Assembly intended a result contrary to that posited by today’s majority.
*344Accordingly, for the foregoing reasons, I would affirm the decision of the court of appeals below.
Locher and J. P. Celebrezze, JJ., concur in the foregoing dissenting opinion.The 1966 conveyance provides, in part:
“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.”