Blackstone v. Moore (Slip Opinion) , 155 Ohio St. 3d 448 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Blackstone v. Moore, Slip Opinion No. 2018-Ohio-4959.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2018-OHIO-4959BLACKSTONE ET AL., APPELLANTS, v. MOORE ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Blackstone v. Moore, Slip Opinion No. 2018-Ohio-4959.]
Marketable Title Act—R.C. 5301.47 et seq.—A reference in a deed to an oil-and-
gas royalty that includes the type of interest created and to whom the
interest was granted is sufficiently specific to preserve the interest in the
record title.
(No. 2017-1639—Submitted July 17, 2018—Decided December 13, 2018.)
APPEAL from the Court of Appeals for Monroe County,
No. 14 MO 0001, 2017-Ohio-5704.
_________________
DEWINE, J.
{¶ 1} Ohio’s Marketable Title Act generally allows a landowner who has
an unbroken chain of title to land for a 40-year period to transfer title free of any
interests that existed prior to the beginning of the chain of title. Under the act,
however, an earlier-created interest is preserved if sufficient reference is made to
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the interest within that chain of title. The question we must answer is what type of
reference is sufficient to preserve that interest.
{¶ 2} The landowners here seek to extinguish an oil-and-gas royalty interest
created in 1915. A deed in their chain of title references the royalty interest as well
as the original holder of the interest. The landowners argue that this reference is
not sufficient to preserve the interest because it does not include either the volume
and page number of the record in which the interest is recorded or the date on which
the interest was recorded. We conclude that the plain language of the act does not
require such specificity. We therefore affirm the court of appeals’ decision that the
landowners’ title remains subject to the royalty interest.
I. BACKGROUND
{¶ 3} In 1915, Nick and Flora Kuhn conveyed a 60-acre tract of property to
W.D. Brown and his wife. The Kuhns reserved a royalty interest in the property by
including the following language in the deed (the “Kuhn deed”): “Except Nick
Kuhn and Flora Kuhn, their heirs and assigns reserve one half interest in oil and gas
royalty in the above described Sixty (60) acres.” Each succeeding conveyance of
the property included language excepting the Kuhn royalty interest. Alfred
Carpenter conveyed the property to David Blackstone in 1969, and as with the past
conveyances, the deed included language about the royalty-interest reservation:
“Excepting 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.” Nine or ten
years later, Blackstone attempted to purchase the royalty interest from the Kuhn
heirs, but negotiations failed. In 2001, Blackstone conveyed the property to himself
and his wife Nicolyn Blackstone, again including the language excepting the
royalty interest.
{¶ 4} In 2012, the Blackstones filed a complaint against the Kuhn heirs,
seeking to quiet title and a declaration that the oil-and-gas royalty interest reserved
in the Kuhn deed had been abandoned under the former and current versions of the
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Dormant Mineral Act, R.C. 5301.56. Later, the Blackstones amended the
complaint to seek a declaration that the rights also had been extinguished under the
Marketable Title Act, R.C. 5301.47 et seq.
{¶ 5} The trial court granted summary judgment in favor of the Blackstones
with regards to both the former version of the Dormant Mineral Act and Marketable
Title Act claims, concluding that the Kuhns’ royalty interest was extinguished
under both acts. The Kuhn heirs appealed to the Seventh District Court of Appeals,
which reversed the judgment of the trial court as to both claims.1 2017-Ohio-5704,
94 N.E.3d 108. Regarding the Marketable Title Act, the court concluded that the
royalty interest had been preserved by the reservation language in the 1969 deed.
Id. at ¶ 39.
{¶ 6} The Blackstones appealed, and we accepted jurisdiction over two
propositions of law:
I. The specific identification contemplated in R.C.
5301.49(A) requires sufficient reference that a title examiner may
locate the prior conveyance by going directly to the identified
conveyance record in the recorder’s office without checking
conveyance indexes.
II. The exception to a person’s marketable record title under
R.C. 5301.49(A) does not include interests and defects, created by a
recorded title transaction prior to the root of title, of which the
person has actual knowledge, if the reference to such recorded title
transaction is general rather than specific.
1. With respect to the Dormant Mineral Act, the court of appeals concluded that the current version
of the act applied, that the Kuhn heirs had acted to preserve their interests, and that therefore the
Kuhn interest could not be deemed abandoned under the act. The Blackstones do not challenge this
conclusion.
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(Underlining sic.) See 152 Ohio St.3d 1406, 2018-Ohio-723, 92 N.E.3d 878.
II. ANALYSIS
A. The Marketable Title Act
{¶ 7} The Marketable Title Act was enacted to “simplify[] and facilitat[e]
land title transactions by allowing persons to rely on a record chain of title.” R.C.
5301.55. Thus, the act provides that a person “who has an unbroken chain of title
of record to any interest in land for forty years or more, has a marketable record
title to such interest.” R.C. 5301.48. The marketable record title “operates to
extinguish such interests and claims, existing prior to the effective date of the root
of title.” R.C. 5301.47(A). (A “root of title” is “that conveyance or other title
transaction in the chain of title of a person * * * 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).) The act facilitates title transactions, as the record
marketable title “shall be taken by any person dealing with the land free and clear
of all interests, claims, or charges whatsoever, the existence of which depends upon
any act, transaction, event, or omission that occurred prior to the effective date of
the root of title.” R.C. 5301.50.
{¶ 8} Balanced against the desire to facilitate title transactions is the need
to protect interests that predate the root of title. To this end, the act provides that
the marketable record title is subject to interests inherent in the record chain of title,
“provided that a general reference * * * to * * * 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 * * * interest.” R.C.
5301.49(A). It is the operation of this section that is at issue in this case.
B. The 1969 Deed Sufficiently Identifies the Royalty Interest
{¶ 9} The Blackstones’ root of title is the 1969 deed conveying the property
from Carpenter to Blackstone. They argue that the reference in the 1969 deed to
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the Kuhn royalty interest—“[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”—is not sufficiently specific to preserve the interest. Thus,
the Blackstones maintain that their title is not subject to the interest. The question
is what makes a reference to an interest sufficient to preserve that interest under the
Marketable Title Act.
{¶ 10} The Blackstones urge us to create a bright-line rule prescribing what
must be included in such a reference. They suggest that we require that a reference
include the volume and page number of the record of the instrument that created
the interest. Alternatively, they say that we should require, at the very least, a
reference that includes the names of the grantor and the grantee and the date on
which the instrument was recorded. The Blackstones contend that such a rule
would be consistent with the act’s purpose of simplifying title transactions, as it
would shorten the length of time required to track down interests.
{¶ 11} To answer the question before us, we look to the plain language of
R.C. 5301.49:
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 * * * to * * * 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 * * * interest.
The statute thus starts with a limitation making title subject to all “interests and
defects” in the muniments of the chain of title. (A deed constitutes “a muniment
within the record marketable title.” Toth v. Berks Title Ins. Co., 6 Ohio St.3d 338,
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341, 453 N.E.2d 639 (1983).) The initial limitation is then qualified by the
provision that a “general reference” to an interest is not sufficient unless that
“general reference” includes “specific identification” of the “recorded title
transaction” that created the interest.
{¶ 12} The statute presents 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?
Here, the answer to the first question is yes: the 1969 deed that constitutes the root
of title recites that it is subject to the royalty interest. Thus, we turn to the second
question: is the reference a “general reference”?
{¶ 13} 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).
{¶ 14} Our caselaw distinguishes between a general reference and a specific
reference: if a reference is specific, it is not a general reference. See Toth, 6 Ohio
St.3d at 341, 453 N.E.2d 639. “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.
{¶ 15} The reference to the Kuhn royalty interest includes details and
particulars about the interest in question. And the interest is accurately referenced.
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—
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“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. Because the reference to 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.
{¶ 16} Much of the Blackstones’ argument that the reference is insufficient
is premised upon policy justifications for reading into R.C. 5301.49(A) a
requirement that a reference include either the volume and page number where the
interest was created or the date that the interest was recorded. They cite the burden
of lengthy title searches, pointing out that to locate the Kuhn royalty interest, an
examiner would have to review 11 or 12 volumes of conveyance indexes. But
notably, the Blackstones do not suggest that the language used in the 1969 deed
made it impossible to find the original exception. They would be hard pressed to
do so, as they in fact located the 1915 deed with the original language. Indeed, we
have declined to view the act’s purpose as solely to limit the length of time required
for title searches. Heifner v. Bradford, 4 Ohio St.3d 49, 53, 446 N.E.2d 440 (1983),
fn. 4. As one commentator put it shortly after the act was passed, “The Act is
designed to assure a reasonable title search, not to serve as a cure-all for title
matters.” Smith, The New Marketable Title Act, 22 Ohio St. L.J. 712, 717 (1961).
{¶ 17} The Blackstones’ policy arguments regarding specificity are best
directed to the legislature. That body, if it desired, could ordain that an interest
created prior to the root of title is preserved only if a reference is made to the volume
and page number where the interest was created. The legislature did just that in the
Dormant Mineral Act when it provided that notice to holders of mineral interests
must include the “volume and page number of the recorded deed or other recorded
instrument under which the owner of the surface of the lands claims title or
otherwise satisfies the requirements established in [R.C. 5301.52(A)(3)].” R.C.
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5301.56(F)(2). Our role is to apply statutes as they are written, and nowhere does
the Marketable Title Act require reference to the volume and page number or the
date that the interest was recorded.
III. CONCLUSION
{¶ 18} We reject the Blackstones’ first proposition of law and hold that a
reference that includes the type of interest created and to whom the interest was
granted is sufficiently specific to preserve the interest in the record title. The court
of appeals therefore correctly held that the Kuhn royalty interest was preserved.
Because our rejection of the Blackstones’ first proposition of law is dispositive, we
need not consider their second proposition.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, and FISCHER, JJ.,
concur.
DEGENARO, J., concurs, with an opinion.
_________________
DEGENARO, J., concurring.
{¶ 19} I concur in the judgment and opinion of the court. However, I write
separately to emphasize the narrow scope of our holding, which is simply that under
the Marketable Title Act, R.C. 5301.47 et seq., “a reference that includes the type
of interest created and to whom the interest was granted is sufficiently specific to
preserve the interest in the record title,” majority opinion at ¶ 18. Although this
case happens to involve a mineral interest—more specifically, an oil-and-gas
royalty interest—the result we have reached did not hinge on the nature of the
interest. Therefore, our opinion should not be read to implicitly hold that the more
general Marketable Title Act continues to apply to mineral interests following the
enactment of the Dormant Mineral Act, R.C. 5301.56—a more specific statute
providing for the termination of those interests.
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{¶ 20} I question the Marketable Title Act’s continued applicability in the
context of this specialized real-property interest. On this point, the review of the
evolution of the Marketable Title and Dormant Mineral Acts set forth in Corban v.
Chesapeake Exploration, L.L.C., 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d
1089, is instructive:
When initially enacted, the Marketable Title Act did not “bar
or extinguish any right, title, estate, or interest in and to minerals,
and any mining or other rights appurtenant thereto or exercisable in
connection therewith.” Former R.C. 5301.53(E), 129 Ohio Laws
[1040] 1046. However, the General Assembly amended former
R.C. 5301.53 and former R.C. 5301.56 in 1973 “to enable property
owners to clear their titles of disused mineral interests.” Am.S.B.
No. 267, 135 Ohio Laws, Part I, 942-943. Thus, the Marketable
Title Act extinguished 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 appeared 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.” R.C. 5301.48 and 5301.49.
***
The General Assembly again amended the Marketable Title
Act in 1989 when it enacted the Dormant Mineral Act, Sub.S.B. No.
223, 142 Ohio Laws, Part I, 981, 985-988 * * *, “to provide a
method for the termination of dormant mineral interests and the
vesting of their title in surface owners, in the absence of certain
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occurrences within the preceding 20 years.” 142 Ohio Laws, Part I,
at 981.
(Second brackets sic.) Corban at ¶ 18-19.
{¶ 21} However, “[d]ormant mineral interests did not automatically pass by
operation of law to the surface owner pursuant to the 1989 law.” Id. at ¶ 31.
Accordingly, the General Assembly further amended the Dormant Mineral Act in
2006 to “provide[] a method for the surface holder to obtain marketable record title
to an abandoned mineral interest without having to resort to litigation to have that
interest declared abandoned.” Id. at ¶ 35. “The 2006 amendment to R.C.
5301.56(B) provides that a dormant mineral interest ‘shall be deemed abandoned
and vested in the owner of the surface of the lands subject to the interest if the
requirements established in division (E) of this section are satisfied.’ ” Id. at ¶ 29,
quoting 2006 Sub.H.B. No. 288.
{¶ 22} The fact that the legislature amended the more general Marketable
Title Act to include the Dormant Mineral Act, which provides a distinct process
specifically for the termination of mineral interests, strongly suggests that the
Dormant Mineral Act should be the controlling law and the exclusive remedy for
this discrete class of real-property interests. See MacDonald v. Cleveland Income
Tax Bd. of Rev., 151 Ohio St.3d 114, 2017-Ohio-7798, 86 N.E.3d 314, ¶ 27 (“when
there is a conflict between a general provision and a more specific provision in a
statute, the specific provision controls”), citing Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 183 (2012) and R.C. 1.51.
{¶ 23} However, the continued applicability of the Marketable Title Act in
light of the more specific Dormant Mineral Act was not raised as a proposition of
law in this appeal, and our review is generally constrained by the arguments raised
by the parties. See State ex rel. Twitchell v. Saferin, __ Ohio St.3d __, 2018-Ohio-
3829, __ N.E.3d __, ¶ 11 (O’Connor, C.J., concurring), citing Sizemore v. Smith, 6
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Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2; see also State ex rel. Maxcy v.
Lucas Cty. Bd. of Elections, 154 Ohio St.3d 1401, 2018-Ohio-4419, __ N.E.3d __
(DeGenaro, J., dissenting). Given that this question is not squarely before us, we
cannot reach its merits. For now, it remains an open issue that is ripe for this court’s
future review.
{¶ 24} Quieting title to severed mineral interests, especially oil-and-gas
interests, is a significant matter that impacts the overall economy of this state—
especially southeast Ohio. Thus, I write separately to highlight this issue and to
stress the narrow scope of our holding today.
_________________
Theisen Brock, Daniel P. Corcoran, and Kristopher O. Justice, for
appellants.
Stubbins, Watson, Bryan, & Witucky, L.P.A., Mark Stubbins, Kyle S.
Witucky, and Grant J. Stubbins, for appellees Carolyn Kohler, Rebecca Englehart,
Susan Moore, and Charles Franklin Yontz.
Plunkett Cooney, P.C., and Amelia A. Bower, urging reversal for amicus
curiae, Ohio Land Title Association.
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