765 ILCS 515/5 — Illinois Code / Chapter 765 / Act 515 / Section 5
Section 5
Status: in_force

(765 ILCS 515/5) (from Ch. 96 1/2, par. 9205) Sec. 5. (a) The person seeking to impress a trust upon a severed mineral interest for the purpose of leasing and developing the same shall join as defendants to the action all persons having a legal interest therein who are unknown or missing and the unknown heirs, successors and assigns of all unknown or missing owners. Said defendants shall stand for and represent the full title and the whole interest of the unknown or missing owners in the severed mineral interest or estate or interest therein. All parties not in being who might have some contingent or future interest therein, and all persons whether in being or not in being, having any interest, present, future or contingent, in the severed mineral interests sought to be leased, shall be fully bound by the proceedings hereunder. (b) There shall be filed a verified petition specifically setting forth the following: (1) The legal description of the lands. (2) The interest of the plaintiff in the lands. (3) The apparent interest of the defendant or defendants in the lands. (4) The last known address, residence or whereabouts which plaintiff may have been able to ascertain for each unknown or missing owner and the sources of information which plaintiff has checked in an attempt to locate the present address, residence or whereabouts of each unknown or missing owner. (5) That plaintiff, upon diligent inquiry, cannot determine such defendant's current address, residence or whereabouts and that upon due inquiry, such defendant cannot be found. (6) That there are persons, firms or corporations who are willing to purchase a mineral lease covering the interest of such defendant, and that the existence of these unleased mineral interests is detrimental to and impairs the enjoyment of the interest of plaintiff. (7) That the plaintiff has acquired or has good reason to believe that he can acquire the right to mine and remove all other mineral interests in the lands, if any, other than the interest of such defendant. (c) The defendant or defendants shall be given notice of the pendency of the action by the clerk of the court by publication to be made in some newspaper published in the county where the action is pending. If there is no newspaper published in that county, then the publication shall be in a newspaper published in an adjoining county in this State, having circulation in the county in which the action is pending. The publication shall contain notice of the pendency of the action, the title of the court, the title of the case, showing the names of the plaintiff and the first named defendant, the number of the case, the names of the parties to be served by publication, the legal description of the lands involved and the date on or after which default may be entered against such party. The clerk shall also, within 10 days of the first publication of the notice, send a copy thereof by mail, addressed to each defendant's last known address stated in the petition. The certificate of the clerk that he has sent the copy of the notice pursuant to this Section is evidence that he has done so. The notice may be given at any time after the commencement of the action, and shall be published at least once in each week for 3 successive weeks. No default or proceeding shall be taken against any defendant unless the first publication is at least 30 days prior to the time when the default or other proceeding is sought to be taken. (d) (1) If in any action there are persons who would be unknown parties as defined in Section 2-413 of the Code of Civil Procedure, those persons may be made defendants to this action in the same manner and with the same effect as provided in the Code of Civil Procedure. Said defendants shall be given notice of the pendency of the action by publication as provided herein. (2) The court shall appoint a guardian ad litem for any party to the proceeding who is a ward and who is not represented by a guardian. (3) If it appears that any person not in being upon coming into being is or may become or may claim to be entitled to any interest in the property sought to be leased, the court shall appoint a guardian ad litem to appear for and represent such interest in the proceeding and to defend the proceeding on behalf of the person not in being, and any judgment or order rendered in the proceeding is as effectual for all purposes as though the person were in being and were a party to the proceeding. (e) If any defendant answers or otherwise appears personally and the court finds that he is an unknown or missing owner of a severed mineral interest, the court shall enter an order determining the interest of such defendant and he shall be dismissed from the action. The appearance by a guardian ad litem appointed pursuant to subsection 5(d) (2) or 5(d) (3) of this Section shall not be deemed a personal appearance within the meaning of this subsection (e). As to all other defendants and after compliance with the notice requirements provided herein, the court shall take evidence and hear testimony as to the matters set forth in the complaint. The court shall determine the prevailing terms of similar mineral leases obtained in the vicinity of the lands described in the complaint, including, but not limited to, length of primary term, bonus monies, delay rentals, royalty rate, and other forms of lease payments. If upon taking evidence and hearing testimony it appears that material allegations of the complaint are true and that there has been compliance with the notice provisions herein provided, then the court shall appoint a trustee for the purpose of selling a mineral lease covering the interest of said defendant. The judgment appointing the trustee and authorizing the sale of such a lease shall specify the minimum terms which may be accepted by the trustee, such terms to be substantially consistent with the terms of other similar mineral leases obtained in the vicinity as determined by the court. From the date of such judgment the owner of the surface estate overlying the severed mineral interest shall be held to be exercising presumptive adverse possession of that severed mineral interest. The terms of the mineral lease shall be substantially consistent with the terms of other existing leases covering the remaining mineral interests in the lands described in the complaint. The lands to be covered by the mineral lease shall be contiguous. To the extent that any of the lands described in the complaint are not contiguous to other lands described therein, said lands shall be the subject of separate mineral leases. The court may designate the place and manner of holding the sale and may determine whether said sale shall be private or public. The court, in its discretion, may require the trustee to give a bond which shall be approved by the court. The court shall determine a reasonable fee to be paid to the trustee and said fee, together with the reasonable attorneys' fees and costs of the proceeding incurred by such trustee, shall be paid by the purchaser of the mineral lease. (f) The plaintiff shall forthwith furnish the court with a report of proceedings of the evidence received and testimony taken at the hearing on the complaint, and the report of proceedings shall be filed and made a part of the case record. (Source: P.A. 83-571.)