dissenting.
Because there remains a disputed issue of material fact concerning whether the mineral interests of the Johnsons and The New England Improvement Company have lapsed due to their failure to pay taxes on their property interest, they are not entitled to summary judgment. Therefore, this Court should reverse the trial court’s grant of summary judgment to them.
OCGA § 44-5-168 provides for the lapse of mineral interests to the surface owner of the property when the mineral owner fails to use its rights or pay taxes on its interest for seven years. Subsection (a) provides that when mineral rights are conveyed the fee owner “may gain title to such mineral rights by adverse possession if the owner of the mineral rights or his heirs or assigns have neither worked nor attempted to work the mineral rights nor paid any taxes due on them for a period of seven years since the date of the conveyance.” To preserve its property interest by making tax payments, the mineral owner must show that (1) it paid ad valorem taxes on the *304mineral rights,9 (2) it paid the taxes as the holder of the mineral rights rather than as the landowner,10 and (3) the taxes were paid for its mineral interest in a specific, identifiable parcel of land.* 11 The mineral owner may establish the identity of the underlying property by filing a return on its mineral interest or having local tax officials value the property and assess taxes on it.12
On motion for summary judgment, the owner of the mineral rights has the burden of proving that there is no genuine issue of material fact concerning the payment of taxes.13 Neither of the mineral owners’ two references in the record to their payment of taxes establishes that they are entitled to judgment as a matter of law. They first rely on an exhibit labeled “Property Tax Information” that is attached to their summary judgment brief, but none of the documents, which concern payment of a 1999 tax bill, is certified or authenticated in some other way. Without a proper foundation, neither the trial court nor this Court can rely on the exhibit as admissible evidence that conclusively establishes the payment of taxes.14 In addition, the mineral owners point to the affidavit of Dennis Johnson, a stockholder in The New England Improvement Company, and ask this Court to infer that taxes were paid on the land based on his affidavit. In it, Johnson states that he and Marie Smith “paid all back taxes from 1975 to 1981” and “The New England Improvement Company has paid the property taxes since 1981.” The affidavit does not state that they paid property taxes on their mineral interests, identify a specific piece of property for which they paid taxes, or indicate how Johnson knew that the company had paid the taxes since 1981. Moreover, there is no evidence that the mineral owners filed a return on their property or that Chattooga County tax *305officials valued their property and assessed taxes on it. Based on this record, an issue of fact remains concerning whether the Johnsons and The New England Improvement Company paid ad valorem taxes on their mineral interest in the land that Allgood Farm owns in Chattooga County. Because the majority relies on inadmissible and ambiguous evidence that lacks the specificity required under our case law, I dissent.15
Decided June 25, 2002. Cook & Connelly, Bobby Lee Cook, McKenna, Long & Aldridge, Phillip A. Bradley, Sheryl L. McCalla, for appellant. Albert C. Palmour, Jr., Johnny R. Dennis, for appellees.I am authorized to state that Justice Hunstein and Justice Carley join in this dissent.
Bee Dubbers-Albrecht v. Nathan, 257 Ga. 111, 112-113 (356 SE2d 205) (1987) (mineral owner’s payment of state or federal estate taxes does not defeat fee owner’s claim under OCGA § 44-5-168).
See Hayes v. Howell, 251 Ga. 580, 586 (308 SE2d 170) (1983) (owner of one-half interest in minerals is not entitled to claim the benefit of tax payments by landowner who owns the remaining mineral interest in land).
See J.F. Nelson, Jr. Family Limited Partnership v. Miller, 267 Ga. 466, 467-468 (479 SE2d 737) (1997) (mineral owner lost his title to mineral rights in 269.5 acre tract owned by Nelson when county tax records showed Miller paid taxes on mineral interest assessed on his homeplace rather than the Nelson tract); Georgia Marble Co. v. Whitlock, 260 Ga. 350, 353-354 (392 SE2d 881) (1990) (mineral owner’s lump-sum payment for mineral interests on unspecified property in county did not constitute payment of taxes on the specific parcel of land involved in the lawsuit).
See Georgia Marble, 260 Ga. at 354.
Dubbers-Albrecht, 257 Ga. at 112.
See Durben v. American Materials, 232 Ga. App. 750, 751-752 (503 SE2d 618) (1998) (trial court did not have authority to consider uncertified pleadings from smother case attached as an exhibit to a summary judgment brief without any attempt to authenticate them or offer them into evidence).
Considering the limited record developed in the trial court, I cannot determine whether ejectment is an appropriate remedy. If the remedy is available, it can only eject All-good Farm from possession of the minerals and does not otherwise affect Allgood’s right to possess the surface. I note further that no determination of the extent of appellees’ mining rights and privileges has been made in this ejectment action.