[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Gerrity v. Chervenak, Slip Opinion No. 2020-Ohio-6705.] 

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 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2020-OHIO-6705

GERRITY, APPELLANT, v. CHERVENAK, TRUSTEE, APPELLEE, ET AL. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Gerrity v. Chervenak, Slip Opinion No. 2020-Ohio-6705.] 

Dormant Mineral Act—Notice to holders of mineral interests—Reasonableness of 

search for owners—After reasonable, unsuccessful search for holders, 

surface owners may provide notice by publication. 

(No. 2019-1123—Submitted June 17, 2020—Decided December 17, 2020.) 

APPEAL from the Court of Appeals for Guernsey County, No. 18 CA 26, 

2019-Ohio-2687. 

_____________________ 

FRENCH, J. 

{¶ 1} This appeal calls upon this court to once again address provisions of 

the Ohio Dormant Mineral Act, R.C. 5301.56. In particular, we now consider the 

reach of the notice requirements that R.C. 5301.56(E)(1) imposes as prerequisites 

to deeming a severed mineral interest abandoned and vested in the owner of the 

land subject to the mineral interest. 
SUPREME COURT OF OHIO

2

Facts and Procedural Background 

{¶ 2} Unlike many cases concerning mineral interests, this case’s facts are 

neither disputed nor complicated. Appellee, John E. Chervenak, trustee of the 

Chervenak Family Trust (“Chervenak”), owns approximately 108 acres of land in 

Guernsey County, Ohio. The rights to the minerals underlying that property were 

severed in a warranty deed, filed in November 1961, in which T.D. Farwell 

transferred the surface rights but reserved to himself “all minerals (coal, oil and 

gas) underlying” the property. John and Gloria Chervenak acquired the surface 

estate by warranty deed recorded in November 1999. They transferred the property 

to the Chervenak Family Trust by quitclaim deed recorded in March 2015. 

{¶ 3} In 2012, a title search for the Chervenak property identified Jane F. 

Richards, Farwell’s daughter, as the owner of the severed mineral rights, as 

evidenced by a certificate of transfer filed with the Guernsey County Recorder in 

October 1965. The certificate of transfer lists a Cleveland, Ohio address for 

Richards. The Chervenak chain of title contained no other records regarding 

ownership of the severed mineral interest. 

{¶ 4} Richards died in 1997. At the time of her death, she was a Florida 

resident. Appellant, Timothy Gerrity, is Richards’s son and sole heir. He claims 

that he is the rightful owner of the mineral rights underlying the Chervenak property 

as a result of the probate of Richards’s estate in Florida. The records filed with the 

Guernsey County Recorder, however, contain no evidence of Richards’s death or 

of Gerrity’s inheritance of the mineral interest. 

{¶ 5} In June 2012, seeking to reunite the severed mineral interest with the 

surface estate pursuant to the Dormant Mineral Act, the Chervenaks recorded with 

the Guernsey County Recorder an affidavit of abandonment of the severed mineral 

interest. As relevant here, the affidavit stated that notice of abandonment had been 

sent by certified mail to Richards at her last known address—the Cleveland address 

listed in the 1965 certificate of transfer—but had been returned, marked “Vacant-
January Term, 2020 

3

Unable to Forward.” It also stated, “Richards, her unknown heirs, devisees, 

executors, administrators, relicts, next of kind [sic] and assigns” had been served 

notice of abandonment by publication on May 4, 2012. In July 2012, the 

Chervenaks filed with the Guernsey County Recorder a notice of the mineralinterest holder’s failure to file a contrary claim and requested that the recorder note 

in the margins of the 1961 deed and the 1965 certificate of transfer that the mineral 

interest had been abandoned. 

{¶ 6} Five years later, in August 2017, Gerrity filed this action in the 

Guernsey County Court of Common Pleas to quiet title and for a declaratory 

judgment that he is the exclusive owner of the mineral rights. Gerrity claims that 

the Chervenaks’ purported use of the Dormant Mineral Act was ineffective because 

they did not comply with the act’s notice requirements. Chervenak filed a 

counterclaim to quiet title and for a declaratory judgment that by operation of the 

Dormant Mineral Act, the trust is the owner of the mineral rights. 

{¶ 7} Gerrity and Chervenak each moved for summary judgment. Without

any written analysis of the parties’ arguments or the applicable law, the trial court 

entered summary judgment for Chervenak and declared the trust the owner of the 

mineral rights. In a split decision, the Fifth District Court of Appeals affirmed the 

trial court’s judgment. 2019-Ohio-2687, 140 N.E.3d 164. This court has accepted 

Gerrity’s discretionary appeal. 157 Ohio St.3d 1440, 2019-Ohio-4211, 132 N.E.3d 

700. 

Analysis 

{¶ 8} We have previously recognized the common practice in mineralproducing regions of severing the rights to subsurface minerals from the rights to 

the surface of land. Dodd v. Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 

N.E.3d 147, ¶ 7. We have further recognized that as severed mineral interests are 

divided or transferred, often over long periods of time, it can become “difficult, or 

even impossible, to find the owners of such severed mineral rights.” Id.; see also 
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Corban v. Chesapeake Exploration, L.L.C., 149 Ohio St.3d 512, 2016-Ohio-5796, 

76 N.E.3d 1089, ¶ 16. The General Assembly enacted the Dormant Mineral Act in 

1989 as a supplement to the Ohio Marketable Title Act, R.C. 5301.47, et seq., to 

address that challenge and to provide a mechanism for reuniting abandoned, 

severed mineral interests with the surface estate. Dodd at ¶ 7-8. 

{¶ 9} As amended in 2006, the Dormant Mineral Act provides that unless a 

severed mineral interest is in coal or is coal related, the interest is held by the United 

States, the state or any other political body described in the statute, or a saving event 

enumerated in R.C. 5301.56(B)(3) has occurred within the preceding 20 years, the 

mineral interest “shall be deemed abandoned and vested in the owner of the surface 

of the lands” if the surface owner has satisfied the requirements of R.C. 5301.56(E). 

R.C. 5301.56(B). R.C. 5301.56(E) states: 

Before a mineral interest becomes vested under division (B) 

of this section in the owner of the surface of the lands subject to the 

interest, the owner of the surface of the lands subject to the interest 

shall do both of the following: 

(1) Serve notice by certified mail, return receipt requested, 

to each holder or each holder’s successors or assignees, at the last 

known address of each, of the owner’s intent to declare the mineral 

interest abandoned. If service of notice cannot be completed to any 

holder, the owner shall publish notice of the owner’s intent to

declare the mineral interest abandoned at least once in a newspaper 

of general circulation in each county in which the land that is subject 

to the interest is located. The notice shall contain all of the 

information specified in division (F) of this section. 

(2) At least thirty, but not later than sixty days after the date 

on which the notice required under division (E)(1) of this section is 
January Term, 2020 

5

served or published, as applicable, file in the office of the county 

recorder of each county in which the surface of the land that is 

subject to the interest is located an affidavit of abandonment that 

contains all of the information specified in division (G) of this 

section. 

{¶ 10} A surface owner’s failure to satisfy R.C. 5301.56(E) precludes 

application of the Dormant Mineral Act and renders unnecessary any further 

analysis. Albanese v. Batman, 148 Ohio St.3d 85, 2016-Ohio-5814, 68 N.E.3d 800, 

¶ 20. 

{¶ 11} The question here is whether the Chervenaks satisfied R.C. 

5301.56(E)(1). The Fifth District majority held that the Chervenaks complied with 

the statute by (1) sending by certified mail to Richards’s last-known address a letter 

containing the notice of abandonment, which had been returned as undeliverable, 

(2) unsuccessfully searching Cuyahoga and Guernsey County records for further 

information, and (3) then publishing notice to Richards and her unknown heirs. 

2109-Ohio-2687, 140 N.E.3d 164, at ¶ 25-26. 

{¶ 12} Gerrity asks this court to reverse the Fifth District’s judgment and to 

adopt two propositions of law regarding R.C. 5301.56(E)(1). First, he asks the 

court to hold that the Dormant Mineral Act requires strict compliance, such that a 

surface owner must identify and attempt service by certified mail on every holder 

of a mineral interest. He argues that the act does not apply unless all holders are 

identified. Second, if the court disagrees with his position that the act requires the 

identification of every holder of a severed mineral interest, Gerrity asks the court 

to hold that a surface owner must use certain specified search methods designed to 

locate all holders of the severed mineral interest to satisfy due process and the 

reasonable-diligence requirement underlying R.C. 5301.56(E). 
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Application of the Dormant Mineral Act is not limited to circumstances in 

which every holder of a severed mineral interest has been identified 

{¶ 13} Gerrity argues under his first proposition of law that the Dormant 

Mineral Act requires a surface owner to both identify all holders of the severed 

mineral interest and attempt to serve notice of abandonment to all holders by 

certified mail before resorting to notice by publication. He maintains that the 

severed mineral interest here could not be deemed abandoned and vested in the 

Chervenaks under the Dormant Mineral Act because R.C. 5301.56(E)(1) required 

the Chervenaks to identify and attempt to serve him, as a holder under the statute, 

with notice of abandonment by certified mail. But reading R.C. 5301.56 as a whole 

and in light of the General Assembly’s codified legislative intent, we reject 

Gerrity’s arguments. 

{¶ 14} To determine the meaning of a statute, we look first to the statutory 

language. Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio2550, 929 N.E.2d 448, ¶ 20. We read statutory words and phrases in the context of 

the whole statute and presume that the General Assembly intended the whole statute 

to be effective. Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 102, 

543 N.E.2d 1188 (1989); R.C. 1.47(B). When the meaning of the statutory 

language is clear and unambiguous, we apply it as written; only if the language is 

ambiguous will we look to additional means of statutory interpretation. Cheap 

Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, 900 

N.E.2d 601, ¶ 9, 13. 

{¶ 15} Gerrity first maintains that application of the Dormant Mineral Act 

is limited to those circumstances in which the owner of the surface estate identifies 

every holder of the severed mineral interest. R.C. 5301.56(A)(1) broadly defines 

“holder” to include “the record holder of a mineral interest, and any person who 

derives the person’s rights from, or has a common source with, the record holder 

and whose claim does not indicate * * * that it is adverse to the interest of the record 
January Term, 2020 

7

holder.” As Richards’s sole heir and as successor to her interest in the mineral 

rights, Gerrity qualifies as a “holder” under R.C. 5301.56(A)(1). But Gerrity’s 

status as a “holder” under R.C. 5301.56(A)(1) does not resolve his first proposition 

of law, which more broadly questions whether the Dormant Mineral Act applies 

only to circumstances in which a surface owner identifies every holder. Answering 

that question requires us to review the statute as a whole, evaluating words in their 

context in order to arrive at a fair reading of the text. See Great Lakes Bar Control, 

Inc. v. Testa, 156 Ohio St. 3d 199, 2018-Ohio-5207, 124 N.E.3d 803, ¶ 9. 

{¶ 16} Because Gerrity is a “holder” under the Dormant Mineral Act, he

argues that the Chervenaks would be in compliance with the statute’s requirements 

only if Gerrity were identified in the notices required by R.C. 5301.56(E)(1). 

Again, R.C. 5301.56(E)(1) requires that prior to filing the affidavit of abandonment, 

the Chervenaks, as the owners, should have done the following: 

 Serve notice by certified mail, return receipt requested, to 

each holder or each holder's successors or assignees, at the last 

known address of each, of the owner's intent to declare the mineral 

interest abandoned. If service of notice cannot be completed to any 

holder, the owner shall publish notice of the owner's intent to declare 

the mineral interest abandoned at least once in a newspaper of 

general circulation in each county in which the land that is subject 

to the interest is located. The notice shall contain all of the 

information specified in division (F) of this section. 

Gerrity contends that because R.C. 5301.56(F)(1) states that the notice required 

under R.C. 5301.56(E)(1) “shall contain * * * [t]he name of each holder and the 

holder's successors and assignees, as applicable,” the only way that an interest can 

be abandoned is if each holder is specifically named in the notice. 
SUPREME COURT OF OHIO

8

{¶ 17} We cannot, however, read R.C. 5301.56(F)(1) in isolation. Its 

mandate must be understood in light of the rest of the statutory scheme, including 

R.C. 5301.56(E)(1), which contains an express provision for notice by publication 

when service of notice by certified mail “cannot be completed to any holder.” 

Plainly, when a holder cannot be identified, service by mail cannot be completed 

on that holder. At that point, notice by publication is permitted under the express 

terms of R.C. 5301.56(E)(1). It would strain credulity to read R.C. 5301.56(E)(1) 

to allow notice by publication when a holder cannot be identified, but at the same 

time to require identification of the holder in the notice itself. 

{¶ 18} On the other hand, reading the provision to not require identification 

of an unidentified holder is consistent with the qualifier in R.C. 5301.56(F)(1) that 

the notice shall identify “each holder and the holder's successors and assignees, as 

applicable.” (Emphasis added.) When notice is being provided through 

publication because a holder cannot be identified, the identity of the holder is “not 

applicable.” 

{¶ 19} Considering R.C. 5301.56(F)(1) in the context of R.C. 

5301.56(E)(1)’s explicit grant of authority for notice by publication, we think the 

best reading of the statute is that a surface owner need not specifically identify by 

name every holder, as broadly defined in R.C. 5301.56(A)(1). 

{¶ 20} Such a reading is consistent with the General Assembly’s codified 

legislative intent that the Dormant Mineral Act “be liberally construed to effect the 

legislative purpose of simplifying and facilitating land title transactions by allowing 

persons to rely on a record chain of title.” R.C. 5301.55. With an eye toward the 

development of Ohio’s mineral resources, the General Assembly enacted the 

Dormant Mineral Act to address the difficulty (and sometimes impossibility) of 

identifying the owners of severed mineral interests and to encourage reliance on 

record chains of title. Dodd, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147,

at ¶ 8; Corban, 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, at ¶ 27. 
January Term, 2020 

9

{¶ 21} Construing the Dormant Mineral Act as ineffective unless the 

surface owner identifies every mineral-interest holder, including every successor or 

assignee of a record holder, would negate the express legislative purpose of the act. 

No matter the effort expended, a surface owner can never be certain that he has 

identified every successor and assignee of every holder who appears in the public 

record. Limitation of the Dormant Mineral Act in the manner Gerrity proposes 

would lead to uncertainty and would open every reunification under the act to a 

later challenge—and perhaps undoing—by a previously unknown heir or assignee 

who did not appear in the public record. That uncertainty would inhibit the General 

Assembly’s stated intention to promote the development of the state’s mineral 

resources. By authorizing notice by publication, as opposed, for example, to 

service by ordinary mail when service by certified mail cannot be completed, the 

General Assembly has at least tacitly acknowledged that not all heirs of a party who 

has reserved a mineral interest may be identifiable or locatable. And again, nothing 

in the statutory text precludes the use of publication to notify classes of unknown 

or potential holders. Consistent with the codified and undisputed purpose of the 

Dormant Mineral Act, we reject Gerrity’s argument that the act operates only when 

the surface owner specifically identifies by name every holder, as broadly defined 

in R.C. 5301.56(A)(1). 

{¶ 22} We also reject Gerrity’s related argument that a surface owner must 

attempt service of notice by certified mail on every holder before the surface owner 

may resort to notification by publication under R.C. 5301.56(E)(1). R.C. 

5301.56(E) mandates that a surface owner “shall” comply with R.C. 5301.56(E)(1) 

and (E)(2) before a severed mineral interest may vest in the surface owner. 

{¶ 23} Read together, the introductory language of R.C. 5301.56(E) and the 

first sentence of R.C. 5301.56(E)(1) provide that a surface owner “shall” serve 

notice of the owner’s intent to declare the mineral interest abandoned “by certified 

mail * * * to each holder or each holder’s successors or assignees, at the last known 
SUPREME COURT OF OHIO

10 

address of each.” A statute’s use of “shall” connotes a mandatory obligation unless 

other statutory language clearly indicates a contrary intent. Wilson v. Lawrence, 

150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 13. But the second 

sentence of R.C. 5301.56(E)(1), with its express acknowledgement that certifiedmail service to each holder may not be possible, indicates that the legislature did 

not intend service by certified mail to be mandatory. Id. 

{¶ 24} The language of R.C. 5301.56(E)(1) does not mandate an attempt at 

service by certified mail when it is apparent that such service cannot be completed. 

The statute does not identify circumstances in which service of notice by certified 

mail will be deemed incapable of completion, nor does it limit itself to those 

circumstances in which notice by certified mail has been returned as undeliverable. 

Rather, by its plain language, the statute operates anytime service of notice by 

certified mail “cannot be completed to any holder.” This includes circumstances in 

which a holder’s identity or address is unknown. “It would be absurd to absolutely 

require an attempt at notice by certified mail when a reasonable search fails to 

reveal addresses or even the names of potential heirs who must be served.” Shilts 

v. Beardmore, 7th Dist. Monroe No. 16 MO 0003, 2018-Ohio-863, ¶ 15. When it 

appears from the outset that service of notice cannot be completed by certified mail, 

as when a holder is unidentified or unlocatable, R.C. 5301.56(E)(1) permits service 

of notice by publication. 

A surface owner must use reasonable diligence to identify and locate holders 

of a severed mineral interest, but what constitutes reasonable diligence will 

vary, based on the facts of each case 

{¶ 25} Having rejected Gerrity’s arguments that the Dormant Mineral Act 

applies only when a surface owner specifically identifies every holder and 

additionally attempts to serve all such persons with notice by certified mail, we 

must consider what R.C. 5301.56(E)(1) does require of a surface owner. We 

therefore turn to Gerrity’s second proposition of law, under which he maintains that 
January Term, 2020 

11 

a surface owner must employ “reasonable search methods * * * designed to locate” 

all holders before using notice by publication under R.C. 5301.56(E)(1). 

{¶ 26} Before getting to the heart of his second proposition of law—that a 

surface owner must employ reasonable search methods to identify all holders—

Gerrity first likens the publication provision in R.C. 5301.56(E)(1) to Civ.R. 

4.4(A)(1) and R.C. 2703.24 and urges this court to import the requirements of those 

provisions into the Dormant Mineral Act. Both Civ.R. 4.4. and R.C. 2703.24 

involve service of process—a prerequisite for a trial court’s exercise of personal 

jurisdiction over a defendant. See Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 

64, 133 N.E.2d 606 (1956) (“It is axiomatic that for a court to acquire jurisdiction 

there must be a proper service of summons or an entry of appearance”). Civ.R. 4.4 

requires a party who is requesting service of process by publication to file an 

affidavit that “aver[s] that service of summons cannot be made because the 

residence of the party to be served is unknown to the affiant, all of the efforts made 

on behalf of the party to ascertain the residence of the party to be served, and that 

the residence of the party to be served cannot be ascertained with reasonable 

diligence.” And R.C. 2703.24, which governs when an action may proceed against 

a party whose name is unknown, requires the plaintiff to request a court order 

authorizing publication of notice by filing an affidavit stating that a necessary 

party’s name and address is unknown to the plaintiff. 

{¶ 27} The Dormant Mineral Act’s extrajudicial process for reuniting 

severed mineral interests does not implicate the jurisdictional concerns underlying 

Civ.R. 4.4 and R.C. 2703.24. Nevertheless, Gerrity suggests that R.C. 

5301.56(E)(1), to the extent that it may be used at all with respect to an unidentified 

holder of a severed mineral interest, be read in pari materia with R.C. 2703.24, so 

as to require the surface owner to file a judicial action and to request a court order 

authorizing publication by filing an affidavit setting out the surface owner’s efforts 

to identify and locate unknown or unlocatable holders. The General Assembly has 
SUPREME COURT OF OHIO

12 

not incorporated the requirements of Civ.R. 4.4 or R.C. 2703.24—or any similar 

requirements—into the Dormant Mineral Act as prerequisites for using notice by 

publication, and this court may not do so by judicial fiat. See Wheeling Steel Corp. 

v. Porterfield, 24 Ohio St.2d 24, 27-28, 263 N.E.2d 249 (1970) (this court may not 

“legislate to add a requirement to a statute enacted by the General Assembly”). 

{¶ 28} Gerrity goes on to argue that at a minimum, a surface owner who

wishes to utilize the Dormant Mineral Act must exercise reasonable diligence to 

identify all holders of the severed mineral interest. The Seventh District Court of 

Appeals has recently evaluated efforts to identify heirs to a mineral interest using a 

reasonableness standard. Sharp v. Miller, 2018-Ohio-4740, 114 N.E.3d 1285 (7th 

Dist.), ¶ 17; Shilts, 7th Dist. Monroe No. 16 MO 0003, 2018-Ohio-863, at ¶ 15. It 

has held that when “a reasonable search fails to reveal the names or addresses of 

potential heirs who must be served,” a surface owner need not attempt to provide 

notice by certified mail under R.C. 5301.56(E)(1). Sharp at ¶ 16, citing Shilts at 

¶ 15. The court refused, however, to create a bright-line rule as to what constitutes 

reasonable diligence: “Because the standard relies on the reasonableness of any 

party’s actions, whether that party’s efforts constitute ‘due diligence’ will depend 

on the facts and circumstances of each individual case.” Sharp at ¶ 17. 

{¶ 29} Shilts involved the ownership of mineral rights reserved by ten 

grantors in a 1914 deed. Shilts at ¶ 2. The appellant, an heir of one of the original 

grantors, challenged the surface owner’s publication in 2012 of notice of an intent 

to declare the mineral interest abandoned. The Seventh District rejected that 

challenge because it concluded that the surface owner had made reasonable, albeit 

unsuccessful, efforts—including a search through public records, coupled with an 

Internet search—to locate the original grantors’ heirs. Id. at ¶ 12. It stated, “When 

counsel’s search did not reveal information regarding these heirs, it became clear 

that service could not be completed through certified mail.” Id. at ¶ 15. The court 

held that the surface owner therefore appropriately used notice by publication, 
January Term, 2020 

13 

naming the original reserving parties “and their unknown heirs, devisees, executors, 

administrators, relicts, and next of kin.” Id. at ¶ 14. Although the surface owner in 

Shilts did conduct an Internet search as part of his search for the heirs, nothing in 

the Seventh District’s opinion suggests that an Internet search is required to 

demonstrate reasonable diligence, and Gerrity misconstrues the opinion by 

suggesting otherwise. 

{¶ 30} In Sharp, the Seventh District reiterated, “An attempt to provide 

notice by certified mail is unnecessary where a reasonable search fails to reveal the 

names or addresses of potential heirs who must be served.” Sharp at ¶ 16, citing 

Shilts at ¶ 15. The surface owner in Sharp unsuccessfully searched available public 

records, including probate records and recorded deeds, but not the Internet, for heirs 

to a 1944 mineral reservation. Id. at ¶ 21. Consistent with its refusal to create a 

bright-line rule, the Seventh District clarified that an Internet search is not a 

necessary component of reasonable diligence. Looking to the facts and 

circumstances of that case, the court found no evidence that “a simple Internet 

search” would have revealed the heirs. Id.

{¶ 31} Gerrity and Chervenak both encourage this court to do what the 

Seventh District has refused to do—adopt a bright-line rule that defines the steps a 

surface owner must take to identify and locate holders of a severed mineral interest 

to comply with R.C. 5301.56(E)(1). The bright-line rules they propose, however, 

could not be more different. Gerrity proposes a rule that would require a surface 

owner to search not only public records but also online resources, including 

subscription-based genealogy services, and to document those efforts. Chervenak, 

on the other hand, advances a rule that would require a surface owner to search only 

the surface owner’s own record chain of title for the identity of mineral-interest 

holders. We decline to adopt either proposed rule. Instead, because every case will 

be different, we agree with the Seventh District that whether a party has exercised 

reasonable diligence will depend on the facts and circumstances of each case. See 
SUPREME COURT OF OHIO

14 

Sharp, 2018-Ohio-4740, 114 N.E.3d 1285, at ¶ 17. If there is to be a bright-line 

rule delineating what a surface-owner must do to comply with the Dormant Mineral 

Act, it should come from the General Assembly, not from this court.1

 Nevertheless, 

without drawing a bright line, we can provide guidance in the context of the facts 

before us, and we turn to those facts now. 

{¶ 32} In support of his motion for summary judgment, Chervenak 

submitted an affidavit from Barbara K. McCombs, the paralegal who performed the 

title search of the Chervenak property in 2012. McCombs’s review of the 

Chervenak chain of title identified Richards as the sole holder of the severed 

mineral estate and listed a Cleveland address for Richards. McCombs conducted a 

broader search of public records from the Guernsey County Recorder’s Office and 

the Guernsey County Probate Court, but that search did not reveal a more recent 

address, an estate or any heirs for Richards. McCombs did not stop her search 

there, however. Because the certificate of transfer that memorialized Richards’s 

acquisition of the mineral interest listed a Cuyahoga County address for Richards, 

McCombs searched in the Cuyahoga County Recorder’s Office and the Cuyahoga 

County Probate Court for records that would establish an estate for Richards, name 

any heirs for Richards or provide a more recent address for Richards. As with her 

search of the Guernsey County public records, McCombs’s search of the Cuyahoga 

County public records offered no indication that Richards had died or had 

transferred the mineral interest. Neither did it uncover a more recent address for 

Richards. 

 

1. There is currently pending before the General Assembly legislation to amend the Dormant 

Mineral Act. See 2019 H.B. 100. As relevant here, the proposed legislation would allow service 

by publication when a surface owner cannot attempt or complete notice by certified mail after 

conducting a search of public records, and it would define “public record” as “any document 

pertaining to a mineral interest filed or recorded with the auditor, recorder, and all courts situated 

within each county in which the lands subject to the mineral interest are located.” Id. 
January Term, 2020 

15 

{¶ 33} Having uncovered no address for Richards more recent than that 

listed in the 1965 certificate of transfer and no information regarding successors, 

heirs or assigns of Richards’s interest in the mineral rights, the Chervenaks sent 

notice by certified mail, directed to Richards at the Cleveland address. When that 

notice was returned as undeliverable, the Chervenaks published notice of their 

intent to declare the mineral interest invalid in The Jeffersonian, a newspaper of 

general circulation in Guernsey County. Like the Fifth District majority, see 2019-

Ohio-2687, 140 N.E.3d 164, at ¶ 25, under the facts of this case, we conclude that 

the Chervenaks exercised reasonable diligence to identify holders of the severed 

mineral interest. 

{¶ 34} Gerrity criticizes the Chervenaks for not searching the Internet for a 

more recent address for Richards to determine whether Richards was still living 

and to identify any heirs. Gerrity has suggested that the Chervenaks could have 

located Richards’s obituary online and could have identified him as Richards’s heir 

by conducting a genealogy search for Farwell, who originally reserved the mineral 

interest, using the subscription databases on Ancestry.com. The record, however, 

contains no specific evidence of what an Internet search would have revealed in 

2012, when the Chervenaks followed the Dormant Mineral Act. We decline to 

impose the requirements that Gerrity has proposed as a matter of law. The everchanging quantum and quality of information available on the Internet, the 

inconsistent reliability of that information, and the variability of Internet-search 

results all weigh against a bright-line requirement for online searches, let alone a 

bright-line requirement that a surface owner consult any particular paid 

subscription services, to identify heirs to a severed mineral interest. 

{¶ 35} The surface owner’s chain of title is the necessary starting point for 

determining the applicability of the Dormant Mineral Act. Before issuing notice of 

an intent to declare a severed mineral interest abandoned, the surface owner must 

first determine whether the Dormant Mineral Act applies. A severed mineral 
SUPREME COURT OF OHIO

16 

interest may not be deemed abandoned and vested in the owner of the surface of 

the lands subject to the interest if any of the six saving events set out in R.C. 

5301.56(B)(3) has occurred within the previous 20 years. Four of those saving 

events—each one that does not involve actual use of the mineral interest—requires 

a filing, recording or notation in the property records of the county in which the 

surface property is located. See R.C. 5301.56(B)(3)(a), (d), (e), and (f). 

Accordingly, the surface owner must consult the public-property records in the 

county in which the surface property is located to determine whether a saving event 

has occurred. If no saving event is evident, the surface owner must also consult the 

chain of title to determine the record holder or record holders of the mineral 

interest—the starting point for determining who the surface owner must attempt to 

notify pursuant to R.C. 5301.56(E)(1). In addition to property records in the county 

in which the land that is subject to the mineral interest is located, a reasonable 

search for holders of a severed mineral interest will generally also include a search 

of court records, including probate records, in that county. 

{¶ 36} Review of public-property and court records in the county where the 

land subject to a severed mineral interest is located will generally establish a 

baseline of reasonable diligence in identifying the holder or holders of the severed 

mineral interest. There may, however, be circumstances in which the surface 

owner’s independent knowledge or information revealed by the surface owner’s 

review of the public-property and court records would require the surface owner, 

in the exercise of reasonable diligence, to continue looking elsewhere to identify or 

locate a holder. But whether that additional search is required will depend on the 

circumstance of each case, and it was not required in this case. McCombs’s diligent 

search of the public records in both Guernsey County and Cuyahoga County 

revealed no indication that the sole record holder was deceased and offered no clue 

as to the identity of any potential successors or assigns. 
January Term, 2020 

17 

{¶ 37} Finally, to the extent that Gerrity raises a due-process challenge to 

R.C. 5301.56(E)(1) or its application when a mineral-interest holder cannot be 

identified, we reject that challenge based on the United States Supreme Court’s 

holding in Texaco v. Short, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982). 

{¶ 38} In Texaco, the Supreme Court rejected constitutional challenges to 

Indiana’s Dormant Mineral Interests Act, which operated to automatically 

extinguish a severed mineral interest after a 20-year period of nonuse unless the 

mineral-interest holder filed a claim to preserve the interest. Id. at 518-519. The 

self-executing Indiana statute did not require a surface owner to take any action or 

to provide any notice to the mineral-interest holder before the mineral interest 

lapsed and reunited with the surface estate by operation of law. Id. at 520. 

{¶ 39} The appellants in Texaco unsuccessfully claimed, in part, that the 

lack of direct notice prior to the lapse of their mineral interests deprived them of 

property without due process of law. Id. at 522. The Supreme Court disagreed and 

held that a state may condition the permanent retention of a property right “on the 

performance of reasonable conditions that indicate a present intention to retain the 

interest.” Id. at 526. In rejecting the appellants’ due-process argument that they 

were entitled to specific notice that their interests were about to expire, the court 

stated, “Generally, a legislature need do nothing more than enact and publish the 

law, and afford the citizenry a reasonable opportunity to familiarize itself with its 

terms and to comply.” Id. at 532. It reasoned that mineral-interest holders may be 

presumed to have knowledge of the terms of the act and that pursuant to the act, 

“an unused mineral interest would lapse unless they filed a statement of claim.” Id. 

at 533. It held that the state provided all constitutionally required notice by enacting 

a statute that informed mineral-interest holders that their interests would be 

extinguished after 20 years of nonuse. Id. at 537. 

{¶ 40} The version of the Dormant Mineral Act at issue here has been in 

effect since 2006, and Gerrity may be presumed to have had notice of the act’s 
SUPREME COURT OF OHIO

18 

provisions, including the statutory actions he could have undertaken, either before 

or after the Chervenaks filed their notice of abandonment, to prevent the mineral 

interest from being deemed abandoned and vested in the Chervenaks. Given that 

the Indiana statute at issue in Texaco, which permitted the extinguishment of a 

mineral interest without any prior notice to the holder besides the existence of the 

statutory scheme itself, passes constitutional muster, Ohio’s Dormant Mineral Act, 

which affords the additional safeguards of notice by certified mail when possible 

and notice by publication when certified-mail service is not possible, cannot be said 

to violate Gerrity’s due-process rights. 

Conclusion 

{¶ 41} A surface owner attempting to comply with R.C. 5301.56(E) must 

exercise reasonable diligence to identify all holders of the severed mineral interest, 

but the inability to identify or locate all such holders does not, in itself, preclude 

application of the Dormant Mineral Act. When a surface owner’s reasonable search 

fails to reveal the names or addresses of holders of the mineral interest, the surface 

owner may provide notice by publication, pursuant to R.C. 5301.56(E)(1), and need 

not attempt to serve the unknown or unlocated holders by certified mail. Because 

we conclude that the Chervenaks satisfied R.C. 5301.56(E), we affirm the judgment 

of the Fifth District Court of Appeals. 

Judgment affirmed. 

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, and STEWART, JJ., 

concur. 

DONNELLY, J., concurs in judgment only. 

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Baker, Dublikar, Beck, Wiley & Mathews, and James F. Mathews; and 

Finnucan & Associates, L.L.C., and John C. Finnucan, for appellant. 

Kravitz, Brown & Dortch, L.L.C., Michael D. Dortch, and Richard R. 

Parsons, for appellee. 
January Term, 2020 

19 

Yukevich, Marchetti, Fischer, Zangrilli, P.C., and Mark Fischer, urging 

reversal for amici curiae Harry A. Fonzi III and Linda Grimes. 

Scullin and Cunning, L.L.C., and Sean Richard Scullin, urging reversal for 

amici curiae Jeffrey H. Sharp, Bradley W. Sharp, Gregory C. Smith, J. Kent Smith, 

Jeffrey S. Smith, Lelah Cline Smith, and Scott Johnson. 

Theisen Brock, L.P.A., and Daniel P. Corcoran, urging affirmance for amici 

curiae Allen B. Miller, Matilda J. Miller, Craig M. Miller, Tina E. Miller, Brenda 

D. Thomas, Kevin M. Thomas, Gary Brown, the Billiter Family Land Trust, Kerry 

R. Hartline, Mary E. Hartline, Doris Craig, Paul Craig, Eleanor Craig, Nina Ice, 

Terry Ice, Sheila Stollar, Roger Stollar, Lisa Meyer, Kenneth Meyer Jr., Helen 

Craig, Evelyn Craig, Carissa R. Baker, and Corey A. Stollar. 

Chad A. Endsley, Leah F. Curtis, and Amy Milam, urging affirmance for 

amici curiae Ohio Farm Bureau Federation and Guernsey County Farm Bureau. 

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., Gregory W. Watts, 

and Matthew W. Onest, urging affirmance for amici curiae Cassandra Ridenour, 

Senterra, Ltd., Natalia Toma Trust, (by Stefan Toma, Trustee), Pora Putney Ridge 

Properties, L.L.C., and Paines Run, L.L.C. 

Emens, Wolper, Jacobs & Jasin Law Firm Co., L.P.A., Sean E. Jacobs, and 

Cody R. Smith, urging affirmance for amicus curiae Ohio River Collieries 

Company. 

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