[Cite as Kocher v. Ascent Resources-Utica, L.L.C., 2023-Ohio-3592.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

JEFFERSON COUNTY

SUSAN KOCHER et al.,

Plaintiffs-Appellants,

v.

ASCENT RESOURCES-UTICA, LLC et al.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY

Case Nos. 22 JE 0012, 22 JE 0014

Civil Appeals from the

Court of Common Pleas of Jefferson County, Ohio

Case No. 20 CV 82

BEFORE:

Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.

JUDGMENT:

Reversed in part, Affirmed in part, Remanded.

Atty. Sean Richard Scullin, Scullin & Cunning, LLC, 940 Windham Ct., Ste. 4, Boardman, 

Ohio 44512, for Appellants Susan Kocher et al., Atty. Joshua E. O’Farrell, Atty. Jude B. 

Streb, Atty. Justin S. Greenfelder, Buckingham, Doolittle & Burroughs LLC, 4277 Munson 

Street, NW, Canton, Ohio 44718 for Appellant Bedway Land and Minerals Co. and

Atty. Kevin L. Colosimo, Atty. Christopher W. Rogers, Frost Brown Todd LLC, Union Trust 

Building, 501 Grant Street, Suite 800, Pittsburgh, PA 15219 for Appellee Ascent 

Resources-Utica, LLC and

Atty. Jeffrey J. Bruzzese, Bruzzese, Hanlin & Bruzzese, LLC, 100 N. 4th Street, 10 Floor,
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Case Nos. 22 JE 0012, 22 JE 0014

P.O. Box 1506, Steubenville, Ohio 43952 for Appellees James T. Banal Jr. et al. and

Atty. J. Zachary Zatezalo, Bordas & Bordas, PLLC, 526 Seventh Street, Moundsville, 

West Virginia 26041 for Appellees James and Rebecca Mills.

Dated: September 28, 2023

Robb, J.

{¶1} These consolidated appeals concern the ownership of oil and gas rights 

underlying 1021 acres of real property in Jefferson County. Appellants filed suit seeking 

quiet title to the oil and gas rights and named the surface owners of the real property as 

defendants. 

{¶2} The trial court ultimately granted Appellees, the surface owners, summary 

judgment as a matter of law and found Appellants’ interests in the underlying oil and gas 

rights, if any, were extinguished via the Marketable Title Act (MTA). It quieted title in 

Appellees’ favor and determined Appellees own 100% of the oil and gas mineral interest 

underlying the property. The trial court did not address the parties’ claims and arguments 

arising from the Dormant Mineral Act (DMA). (July 26, 2022 Order.) 

{¶3} For the following reasons, the trial court’s decision is reversed in part, 

affirmed in part, and the case remanded for further proceedings.

Statement of the Case

{¶4} Appellants, Susan Kocher et al., consist of 81 individuals and one company, 

Bedway Land and Minerals Co. (Bedway), who are alleged heirs, successors, assigns, 

and holders of the mineral interests underlying six parcels of real property. Appellants 

filed suit in February of 2020. They filed their first amended complaint in November of 

2020 and their second amended complaint on February 1, 2021. 

{¶5} Appellants’ second amended complaint named as defendants, Ascent 

Resources-Utica, LLC (Ascent), James M. and Rebecca L. Mills (the Mills defendants), 

Heather C. Mazey, Trustee of the Fashing Family Irrevocable Trust, James T. and Maria 

S. Banal, L.D. Jenkins, Mary L. Gorman, and Norman T. Fashing and Joyce K. Fashing, 

1 The exact acreage of the real property is referred to in title transactions and throughout the trial court 

proceedings as 102.167 in some pleadings and judgments and in others as 102.46. The discrepancy is 

evidently a result of modernized survey technology. Regardless, it is not an issue on appeal. 
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Case Nos. 22 JE 0012, 22 JE 0014

as Co-Trustees of the Norman T. Fashing and Joyce K. Fashing Family Trust (collectively 

the Fashing defendants). Appellants claim Ascent, L.D. Jenkins, and Mary L. Gorman 

may claim to have an interest in this lawsuit. Appellants contend the other named 

defendants are surface owners of the six parcels at issue and they wrongfully leased the 

attendant mineral rights underlying their respective real properties. (February 1, 2021 

Second Amended Complaint.) 

{¶6} Appellees moved to dismiss certain claims, contending each was a remedy 

and not a cause of action. The trial court agreed and dismissed four counts of Appellants’ 

complaint. Appellants do not challenge this decision on appeal. The remaining counts 

after the motion to dismiss include the following. 

{¶7} The first count in Appellants’ second amended complaint sought declaratory 

judgment and a determination that Appellants are the owners of the mineral interests 

underlying the property. Appellants’ second count seeks to quiet title the ownership of 

the property’s mineral interests in their favor as owners or holders. Appellants’ third count 

asserts an unjust enrichment claim. (February 1, 2021 Second Amended Complaint.) 

{¶8} In their prayer for relief, Appellants sought declaratory judgment finding 

defendants failed to comply with the Dormant Mineral Act; an order quieting title in their 

favor to the mineral rights; and an order for an accounting of and imposition of a 

constructive trust for all funds received from the minerals, including royalties, and any 

other relief deemed necessary. (February 1, 2021 Second Amended Complaint.) 

{¶9} The Mills defendants, surface owners of one of the parcels, counterclaimed 

to quiet title in their favor regarding the respective mineral rights. In January of 2013, the 

Mills filed an affidavit of abandonment, contending as surface owners that the prior 

reservations of mineral rights regarding their real property had been abandoned. 

(February 1, 2021 Second Amended Complaint, Exhibit E.) 

{¶10} The Fashing defendants likewise counterclaimed and sought declaratory 

judgment and to quiet title in their favor. (July 2, 2020 Second Amended Answer & 

Counterclaim.) In December of 2013, the Fashings filed two affidavits of abandonment 

and averred the mineral exceptions and reservations regarding their surface estates had 

been abandoned. (Second Amended Complaint, Exhibit F & G.) 
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Case Nos. 22 JE 0012, 22 JE 0014

{¶11} After the exchange of discovery, the parties filed competing motions for 

summary judgment. The Fashing defendants moved for summary judgment in their favor, 

contending in part the 1957 Rembish deed is their root of title and that it does not contain 

an oil or gas reservation or exception. They also alleged the Rembish deed did not repeat 

a prior reservation or exception. They alleged their predecessor in interest, Bedway, 

acquired title to the 102 acres from ten co-owners of the property or co-tenants. The 

Fashing defendants alleged that Appellants’ claims to the mineral rights were 

extinguished via the MTA in light of their unbroken chain of title in the land for more than 

40 years, and because Appellants’ claims stem from transactions before the 40-year 

period, these interests were extinguished as a matter of law. As for any alleged savings 

events, the Fashing defendants claimed the title transactions were general, not specific, 

and thus do not constitute savings events. Alternatively, they argued Appellants’ 

interests, if any, were abandoned under the DMA. (June 4, 2021 Summary Judgment 

Motion.)

{¶12} The Mills defendants’ response to summary judgment also claimed the 

February 4, 1957 Rembish deed was their root of title and showed they were the record 

title owners to the mineral rights. They alleged the Rembish deed met the substantive 

aspect of the root of title definition. The Mills defendants argued, because the real 

property was jointly owned by nine owners, Wilmetta Belon’s conveyance to Bedway of 

a 1/10 interest had the effect of conveying an “undivided share and had the right of 

possession of the whole of the surface and mineral rights.” And since the real property 

was not physically divided, she, as one co-tenant, had the right to lease oil and gas 

mineral production for the entirety of the tract. (July 16, 2021 Response to Summary 

Judgment.)

{¶13} Appellants urged the trial court to find that neither the MTA nor the DMA 

applied and their mineral interests were still viable. Regarding the Appellees’ MTA 

arguments, Appellants contended the Rembish deed was not a proper root of title for 

several reasons. And regarding the DMA, Appellants claimed the surface owners failed 

to conduct a diligent search before resorting to notice by publication and that, regardless, 

there were timely notices to preserve recorded. (June 4, 2021 Summary Judgment 

Motion.)
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Case Nos. 22 JE 0012, 22 JE 0014

{¶14} The trial court held a hearing on the cross motions for summary judgment 

and issued its decision on July 26, 2022. The trial court dismissed Appellants’ unjust 

enrichment claim at the hearing. (August 9, 2021 Tr. p. 43.) Appellants do not challenge 

the dismissal of this claim on appeal. 

{¶15} The trial court granted summary judgment in favor of Appellees, the surface 

owners, and found pursuant to the MTA, Appellees had unbroken chains of title from the 

recording of the Rembish deed to the present and Appellants’ interests were extinguished 

by operation of law. (July 26, 2022 Order.) 

{¶16} Appellants, Susan Kocher et al., the individuals and alleged heirs, 

successors, and assigns of the properties’ mineral interests, appealed the July 26, 2022 

summary judgment decision, and Appellant Bedway separately appealed. We 

consolidated the appeals in response to their joint request. Appellants raise five 

assignments of error. 

Standard of Review

{¶17} The interpretation of deeds is generally a question of law for a court to

decide. Courts are to employ rules of contract construction to interpret deeds and focus 

on a plain reading of the words in the four corners of the document. McGiffin v. Skurich, 

2021-Ohio-2741, 176 N.E.3d 833, ¶ 20 (7th Dist.), citing Long Beach Assn., Inc. v. Jones, 

82 Ohio St.3d 574, 576, 697 N.E.2d 208 (1998), and LRC Realty, Inc. v. B.E.B. Properties, 

160 Ohio St.3d 218, 2020-Ohio-3196, 155 N.E.3d 852, ¶ 17. 

{¶18} We review questions of law and summary judgment decisions de novo and 

apply the same test as the trial court in determining whether summary judgment was 

proper. Cole v. Am. Industries & Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 

1179 (7th Dist.1998). 

{¶19} Pursuant to Civ.R. 56(C), summary judgment should be granted when 

reasonable minds could reach but one conclusion and that conclusion is adverse to the 

nonmoving party. The moving party has the burden of showing no issue exists as to any 

material fact. State v. Licsak, 41 Ohio App.2d 165, 324 N.E.2d 589 (1974); Mitseff v.

Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798, syllabus (1988). 

{¶20} Once the moving party meets his burden, the opposing party may not rely 

on the allegations in his pleadings, but must set forth facts showing there is a genuine 
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Case Nos. 22 JE 0012, 22 JE 0014

issue and produce evidence on issues that the party has the burden of proving at 

trial. Civ.R. 56(E); Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 

1095 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). In 

determining a motion for summary judgment, the trial court will construe the evidence 

most strongly in favor of the nonmoving party and grant summary judgment where that 

party fails to make a showing sufficient to establish the existence of an essential element 

upon which the party bears the burden of production. Celotex, at 322, 106 S.Ct. 2548. 

Chain of Title

{¶21} The parties filed copies of the following documents. 

{¶22} The deed recorded January 14, 1921 reflects the grantors, Mary Kithcart, 

Clyde Kithcart, Francis Kithcart, James Kithcart, Georgia Black, and John Black conveyed 

to Wm. H. Iler and Irving S. Iler a portion of the real property described in part as “Part 

S.W. Quarter Section #15, Twp. 8, Range 3” and “containing 41-4/10 acres, more or less.” 

(Report of Rod Swearingen, Exhibit 4.) This left the approximate 102 acres now in 

dispute. (Report of Daryl J. Kirtley). A transfer was recorded on June 16, 1924. It shows 

the same transaction recorded in the deed, which was recorded in January of 1921 and 

conveying “Part S.W. Quarter Sec. #15, Twp. 8, Range 3” and “containing 41-4/10 acres, 

more or less.” (Report of Daryl J. Kirtley, Exhibit 10.) 

{¶23} The affidavit for transfer recorded June 12, 1933, shows real estate 

inherited by James T. Kithcart’s heirs. His heirs include Georgia Black, Clyde Kithcart, 

and James T. Kithcart, and the transaction shows each obtained a 1/3 share of the real 

estate described in part as “containing 102 46/100 acres, more or less.” (Exhibit C to 

Exhibit 1 to Plaintiffs’ Summary Judgment Response.) 

{¶24} The deed recorded June 16, 1933, conveys the property from Georgia and 

John Black, James and Mary Kithcart, Clyde and Frances Kithcart to ten grantees, i.e., 

Ethel Murphy, Esta Stinard, Wilmetta Bellan, John Hartzell, Gladys Hennebert, Raymond 

Hartzell, Lawrence Hartzell, Rowland Hartzell, Mattie Hartzell and Virginia Hartzell, as 

heirs of James V. Hartzell, deceased. It conveyed real property in Smith Township, 

Jefferson County consisting of “102 46/100 acres, more or less” but excepting the coal 

rights previously sold. This 1933 deed does not contain a mineral rights exception. (June 

4, 2021 Mills Motion for Summary Judgment, Exhibit E.) Thus, each of the ten grantees 
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Case Nos. 22 JE 0012, 22 JE 0014

obtained a 1/10 joint ownership interest in the surface and in the mineral rights underlying 

the property. 

{¶25} The warranty deed recorded October 11, 1955 shows Minnie Iler, a 

widower, granting to Bedway Coal Company four different parcels in Smithfield Township, 

Jefferson County. One of the four listed parcels is described in part as “containing 41.4 

acres more or less.” The conveyance excepted 1.91 acres conveyed by William and 

Irving Iler to the Jefferson Coal Company in 1924. (Report of Daryl J. Kirtley, Exhibit 16.) 

This transaction shows Bedway acquiring the previously severed 41.4 acres. 

{¶26} Four deeds or title transactions were recorded on February 9, 1957. 

{¶27} The warranty deed dated July 30, 1956 and recorded February 9, 1957 

shows Virginia Brake, a widow, granting her interest in the surface and mineral rights to 

Raymond V. Hartzell, which gave him a 2/10 ownership interest. (Exhibit G to Exhibit 1 

to Plaintiff’s Response to Summary Judgment Motions.)

{¶28} Bedway acquired its surface interest in the 102 acres via three separate 

deeds recorded on February 9, 1957. Two of these three February 1957 deeds contained 

a clause reserving the grantors’ respective mineral rights. 

{¶29} One warranty deed recorded February 9, 1957 conveyed “102 46/100 

acres, more or less” from grantors, Ethel M. Murphy, unmarried, Esta and Loman Stinard, 

John and Martha Hartzell, and Gladys and Frank Hennebert, to the Bedway Coal Co. It 

states in part it is: “Also excepting and reserving all minerals except Vein Number Eight 

* * * of coal.” (Complaint, Exhibit A.) 

{¶30} By another warranty deed recorded February 9, 1957, Raymond and Louise 

Hartzell, Lawrence and Lillian Hartzell, Rowland and Bessie Hartzell, and Mattie Hartzell, 

unmarried, conveyed real estate consisting of “102 46/100 acres, more or less” to the 

Bedway Coal Co. It states in part it is: “Also excepting and reserving all minerals except 

Vein Number Eight * * *.” (Complaint, Exhibit B.) 

{¶31} By an administrator’s or executor’s deed, also recorded February 9, 1957, 

Mary Rembish, as executrix for the estate of Wilmetta Belon, aka Bellan, conveyed to the 

Bedway Coal Company real estate consisting of “an undivided one-tenth (1/10th) interest 

in the following described real estate: * * * containing 102 46/100 acres, more or less.” 

This deed does not contain a reservation of mineral rights. (Complaint, Exhibit C.) 
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Case Nos. 22 JE 0012, 22 JE 0014

{¶32} In the year 2000, Bedway sold its surface rights to the property via three 

title transactions. 

{¶33} On April 7, 2000, Bedway conveyed 34.72 surface acres to David A. Bailey, 

a portion of a 102.46 acre tract. This limited warranty deed states in part: “EXCEPTING 

AND RESERVING all coal, oil, gas, mineral rights and mining rights previously conveyed. 

Applicable to both tracts.” (Exhibit L to Exhibit 1 to Plaintiffs’ Summary Judgment 

Response.) 

{¶34} Bailey subsequently conveyed his real property to James T. Banal, Jr. by 

limited warranty deed recorded August 29, 2003. This property is described as consisting 

of two tracts “[b]eing a portion of a 102.46 acre tract conveyed to Bedway Coal Company 

* * *.” This deed states the conveyance was: “EXCEPTING AND RESERVING all coal, 

oil, gas, mineral rights and mining rights previously conveyed. Applicable to both tracts.” 

(Exhibit M to Exhibit 1 to Plaintiffs’ Summary Judgment Response.) 

{¶35} On April 25, 2000, Bedway conveyed 37.489 acres to James and Rebecca 

Mills via a joint and survivorship deed. It describes the property as being portions of two 

tracts conveyed to Bedway Coal Company. This deed also stated it was: “EXCEPTING 

AND RESERVING all coal, oil, gas, mineral rights and mining rights previously conveyed.” 

(Exhibit N to Exhibit 1 to Plaintiffs’ Summary Judgment Response.) 

{¶36} Bedway Coal Company conveyed 67.5 acres to Norman T. and Joyce K. 

Fashing via a joint and survivorship deed recorded on July 17, 2000. Both tracts 

conveyed are described as being a portion of a “102.46 acre tract conveyed to Bedway 

Coal Company.” This deed states it is: “EXCEPTING AND RESERVING all coal, oil, gas 

rights and mining rights previously conveyed.” It also states: “EXCLUDING all coal, oil, 

gas and mineral rights previously conveyed.” (Exhibit Q to Exhibit 1 to Plaintiffs’ Summary 

Judgment Response.) 

The Marketable Title Act

{¶37} We address Appellants’ first, second, fourth, and fifth assigned errors 

collectively, which assert: 

“[1.] The trial court erred in granting Appellees’ Motion for Summary Judgment 

under the MTA. Judgment Entry ¶ 42.”
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Case Nos. 22 JE 0012, 22 JE 0014

“[2.] The trial court erred by denying Appellants’ Motion for Summary Judgment 

under the MTA. Judgment Entry ¶ 42.”

“[4.] The trial court erred by denying Appellants’ Motion for Summary Judgment to 

quiet title to the 102 mineral acres. Judgment Entry at 43.”

“[5.] The trial court erred by denying Appellants’ Motion for Summary Judgment as 

to damages. Judgment Entry at 43.” 

Arguments Regarding Root of Title

{¶38} Appellants’ first assigned error raises several reasons the trial court 

allegedly erred by finding the Rembish deed was a proper root of title for 100% of the 

mineral rights underlying the 102 acres. 

{¶39} Appellants’ second assigned error asserts, for these same reasons, the trial 

court should have granted summary judgment in their favor under the MTA. And 

Appellants’ fourth and fifth assignments of error contend the trial court should have 

quieted title in their favor and awarded them damages as a result. 

{¶40} The MTA provides a “marketable record title” to an individual who has an 

unbroken chain of title of record to any interest in land for at least 40 years to that interest. 

R.C. 5301.48. With limited exceptions delineated in R.C. 5301.49, a marketable record 

title “operates to extinguish” all interests and claims that existed prior to the effective date 

of the root of title, and those preexisting interests are “null and void.” R.C. 5301.47(A); 

R.C. 5301.50. 

{¶41} R.C. 5301.49 identifies exceptions from extinguishment, which the Ohio 

Supreme Court refers to as “saving events.” Corban v. Chesapeake Exploration, L.L.C., 

149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, ¶ 18. The MTA extinguishes 

property interests by operation of law after 40 years from the effective date of the root of 

title unless a saving event has occurred. Id. And an interest extinguished by operation 

of the MTA cannot be revived. R.C. 5301.49(D). 

{¶42} A marketable record title remains subject to an interest predating the 

effective date of the root of title when: (1) the preexisting interest is specifically identified 

in the muniments which form the record chain of title; (2) the holder of the preexisting 

interest has recorded a notice claiming the interest, in accordance with R.C. 5301.51; or 

(3) the preexisting interest arises out of a title transaction that was recorded after the 
– 10 –

Case Nos. 22 JE 0012, 22 JE 0014

effective date of the root of title. West v. Bode, 7th Dist. No. 18 MO 0017, 2019-Ohio4092, 145 N.E.3d 1190, ¶ 23, aff'd, 162 Ohio St.3d 293, 2020-Ohio-5473, 165 N.E.3d 

298. These exceptions or savings events shield the excepted interests from 

extinguishment. O'Kelley v. Rothenbuhler, 2021-Ohio-1167, 171 N.E.3d 775, ¶ 24-26 

(7th Dist.), appeal not allowed, 165 Ohio St.3d 1456, 2021-Ohio-4033, 176 N.E.3d 758. 

{¶43} Here, the trial court decided marketability from the date of Appellants’ 

original complaint, February 25, 2020. It then found the first recorded deed in the chain 

of title more than forty years prior to that date was the 1957 Administrator’s Deed of Mary 

Rembish, recorded at deed volume 342, Page 567, and recorded on February 9, 1957. 

The court noted there were two older deeds, i.e., the December 27, 1956 Hartzell deed 

and the December 28, 1956 Murphy deed. (July 26, 2022 Order.) 

{¶44} The trial court noted the parties agreed the Rembish deed met the temporal 

requirement to be the root of title. Regarding the substantive aspect of root of title, the 

court found it was satisfied as well, explaining: 

22. The Rembish deed conveyed the interest of Wilmetta Belon to Bedway 

Coal. Ms. Belon was a joint tenant in common to the original 102.46 acre 

surface and mineral interests. Ms. Belon acquired that interest jointly with 

9 other individuals on June 6, 1933. As a joint tenant in common, Ms. Belon 

owned an undivided share and had the right of possession of the whole of 

the surface and mineral rights of the original 102.46 acre tract. 

23. The other individuals, who were co-tenants with Ms. Belon, had 

previously conveyed their interests in the surface of the 102.46 acre tract to 

Bedway Coal in the previously executed and recorded Hartzell and Murphy

deeds. The Hartzell and Murphy deeds purported to except and reserve 

the oil and gas mineral interests owned by the respective grantors in those 

deeds from conveyances to Bedway Coal. 

24. The Rembish deed conveyed the Belon interest in the surface of the 

102.46 acre tract. It is important to note that the Rembish deed, while an

Administrator’s or Executor’s Deed, was not a judicial or partition deed and 

the deed did not physically separate, divide, or describe any new 1/10th 

size share of the property. The original 102.46 acres remained intact.
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Case Nos. 22 JE 0012, 22 JE 0014

25. The Rembish deed made absolutely no mention of any oil and gas 

mineral interests and made no attempt to reserve any such interest. 

26. As a joint tenant in the tract, Ms. Belon had a right to full occupation and 

possession of the whole mineral interest. 

27. Importantly, on the record at the August 9, 2021 hearing, Plaintiff 

Bedway Coal’s counsel conceded, and even argued in support of the 

principle that an undivided ownership share of a mineral interest, such as 

Ms. Belon’s provides that owner with a right of ownership as to the mineral 

interest as a whole.

* * *

29. The Belon interest was conveyed to Bedway Coal and subsequently 

conveyed onto the Defendants. 

30. The Plaintiffs have asserted that the language in various deeds from 

Bedway Coal to the Defendants and/or their predecessors in interest 

included clear and unambiguous new reservations of mineral rights by 

Bedway. 

* * *

33. Bedway’s argument that the Belon interest was ‘previously conveyed’ 

to it and that interest is therefore excepted and/or reserved from the Bedway 

Coal transactions to the Defendants and/or their predecessors in title fails.

* * *

35. The “EXCEPTING AND RESERVING all coal, oil, gas, mineral rights 

previously conveyed” language asserted by Bedway as a claim to 

ownership of the Belon interest does not clearly except or reserve any oil 

and gas minerals actually owned by Bedway Coal from the subject 

transactions. Whatever interest Bedway had to the Belon interest was 

conveyed to the Defendants and/or their predecessors in interest. 

36. * * * the Rembish deed substantively accounts for the oil and gas 

mineral interests which are at issue in this case; that is, the oil and gas rights 

underlying the subject real estate as Wilmetta Belon owned an interest in 
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Case Nos. 22 JE 0012, 22 JE 0014

and fully possessed the entirety of those oil and gas mineral interests as a 

cotenant with her family members. 

37. Each of the Defendants hold an unbroken chain of title as it relates to 

the Belon interest from the recording of the Rembish deed to the present.

(July 26, 2022 Order.) 

{¶45} The court quieted title in favor of Appellees/Defendants as to the mineral 

interests underlying their properties pursuant to the MTA. The court did not address the 

merits of the parties’ DMA arguments. (July 26, 2022 Order.) 

{¶46} Appellants claim the trial court erred as a matter of law by finding the 

February 9, 1957 Rembish deed is a proper root of title for 100% of the mineral rights 

underlying the property. For the following reasons, we agree. 

“Root of title” means that conveyance or other title transaction in the chain 

of title of a person, purporting to create the interest claimed by such person, 

upon which he relies as a basis for the marketability of his title, and which 

was the most recent to be recorded as of a date forty years prior to the time

when marketability is being determined. The effective date of the “root of 

title” is the date on which it is recorded. 

R.C. 5301.47(E). 

{¶47} This court has explained that a root of title consists of two distinct 

components, a substantive requirement and a temporal one: 

The temporal element for a “root of title” is a title transaction that is at least 

40 years preceding the date when marketability is being determined. Once 

that title transaction is found, it must be determined whether that title 

transaction meets the second element. This substantive element requires

the title transaction to purport “to create the interest claimed by such person,

upon which he relies as a basis for the marketability of his title.” R.C.

5301.47(E). A “root of title” cannot be the initial severance deed of the

interest the person is seeking to have extinguished. This is because record

marketable title extinguishes interests and claims existing prior to the

effective date of the root of title, not when the interest and claims were

created in the “root of title.” R.C. 5301.47(A). 
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Case Nos. 22 JE 0012, 22 JE 0014

Senterra Ltd. v. Winland, 7th Dist. No. 18 BE 0051, 2019-Ohio-4387, 148 N.E.3d 34, at ¶ 

53 (7th Dist.). 

{¶48} The date of marketability here is February 25, 2020, the date of Appellants’ 

initial complaint. Appellees alleged, and the trial court agreed, the root of title was the 

February 9, 1957 Administrator’s Deed conveying the property from Mary Rembish to 

Bedway Coal Company. There is more than 63 years between the alleged root of title 

and the date of marketability, so there is no dispute the temporal element is satisfied. 

{¶49} A proper root of title must “account for the interest the person is claiming to 

have record marketable title to.” Senterra, Ltd. v. Winland, 169 Ohio St.3d 595, 2022-

Ohio-2521, 207 N.E.3d 632. A plain reading of the Rembish deed shows it only conveyed 

1/10 of an interest in the described property. Thus, the logical conclusion, when 

addressing the substantive aspect of root of title, is that the Rembish deed only “accounts 

for” 1/10 an interest—not the 100% as claimed by Appellees. Id. This conclusion is 

consistent with our obligation to interpret deeds with a focus on the plain language 

employed in the document. See McGiffin v. Skurich, 2021-Ohio-2741, 176 N.E.3d 833, 

¶ 20 (7th Dist.).

{¶50} Furthermore, “[a] person can only convey what he or she owns.” Sharp v.

Miller, 7th Dist. No. 17 JE 0022, 2018-Ohio-4740, 114 N.E.3d 1285, ¶ 28. A plain reading 

of the Rembish deed shows Wilmetta Belon, conveyed to the Bedway Coal Company real 

estate consisting of “an undivided one-tenth (1/10th) interest in: * * * 102 46/100 acres, 

more or less.” (Complaint, Exhibit C.) Consequently, the Bedway Coal Company could 

only convey this same 1/10 interest to Appellees. See Senterra Ltd. v. Winland, 7th Dist. 

No. 18 BE 0051, 2019-Ohio-4387, 148 N.E.3d 34, ¶ 68 (explaining a deed containing a 

1/4 mineral reservation only purports to convey the remaining 3/4 interest in the oil and 

gas). A reading to the contrary defies logic and reason. 

{¶51} The trial court appears to have erroneously applied other aspects of the law 

to reach the contrary conclusion. It cites the proposition that one co-tenant enjoys the 

right to use the whole of the land to support its decision that a co-tenant has the power to 

convey the whole property. Neither the parties nor the trial court identify legal authority 

for the proposition and conclusion that the right to occupy the whole parcel, i.e., the unity 

of possession, authorizes one co-tenant to sell or convey the property in its entirety. The 
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Case Nos. 22 JE 0012, 22 JE 0014

opposite is true. See Black Stone Minerals Co., L.P. v. Brokaw, 2017 ND 110, 893 

N.W.2d 498, ¶ 9-10 (finding husband who owned property in fee simple absolute jointly 

with his wife was only capable of conveying his equal one-half interest). 

{¶52} “A tenancy in common merely means two or more people hold an interest 

undivided without entitlement to an exclusive part but with entitlement to occupy the whole 

in common with the others, and upon death, a co-tenant's interest passes to her heirs and 

not to the surviving co-tenants. See generally Webster v. Dwelling-House Ins. Co., 53 

Ohio St. 558, 565, 42 N.E. 546 (1895).” Richmond Mills, Inc. v. Ferraro, 7th Dist. 

Jefferson No. 18 JE 0015, 2019-Ohio-5249, ¶ 42; see generally Tomechko v. Garrett, 7th 

Dist. No. 20 NO 0473, 2021-Ohio-1377, 172 N.E.3d 1087, ¶ 51, appeal not allowed, 164 

Ohio St.3d 1441, 2021-Ohio-3233, 173 N.E.3d 1230 (noting a co-tenants’ possession of 

land is consistent with a co-tenants’ right to enter land at any time). 

{¶53} “The central characteristic of a tenancy in common is simply that each 

tenant is deemed to own by himself, with most of the attributes of independent ownership, 

a physically undivided part of the entire parcel.” TENANCY, Black's Law Dictionary (11th 

ed. 2019), quoting Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and

Future Interests 54 (2d ed. 1984). “Because cotenants have distinct titles, ‘one cotenant 

cannot convey away the interest of another cotenant.’” Sullinger v. Reed, 3rd Dist. Hardin 

No. 6-20-14, 2021-Ohio-2872, ¶ 27, quoting Lewellyn v. Village of South Zanesville, 43 

Ohio App. 385, 390, 183 N.E. 306 (5th Dist. 1932). Thus, the trial court erred by holding 

a co-tenant’s right to enter and enjoy the entirety of the land is synonymous with the right 

to convey it. Id. 

{¶54} Accordingly, we conclude the Rembish deed does not satisfy the 

substantive element of the root of title definition because it purports to create less of an 

interest than “the interest claimed by” Appellees. This conclusion is based on the plain 

language of R.C. 5301.48, the plain language of the root of title definition, and the 

Supreme Court’s decision in Senterra, Ltd., supra, at ¶ 15. On its face, the Rembish deed 

does not “purport to convey” the interest claimed to be owned by Appellees here. 

{¶55} Furthermore, the trial court emphasizes Appellants’ counsel conceded at 

the summary judgment hearing that one co-tenant has the authority to convey the 

property as a whole. First, this is not what this attorney was stating. Instead, Appellants’ 
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attorney was explaining how a notice of preservation filed by one mineral interest holder 

acts to preserve all holders’ interests. Counsel stated in part: 

when you have heirs who own * * * an undivided interest in those mineral 

rights * * * [i]t’s not as if Farmer Smith gets this little piece of a mineral 

interest. * * * They own it in unified fashion. * * * [And] one holder who files 

a preservation has effectively preserved those interests for all of the other 

owners of the mineral interests, because they all own it together.

(August 9, 2021 Tr. p. 36-37.) More importantly, parties cannot concede or stipulate as 

to matters of law, only issues of fact. Crow v. Nationwide Mut. Ins. Co., 159 Ohio App.3d 

417, 2004-Ohio-7117, 824 N.E.2d 127, citing Diversified Capping Equip., Inc. v. Clinton

Pattern Works Inc., Wood App. No. WD-01-035, 2002 WL 537998 (Apr. 12, 2002). 

Consequently, to the extent the trial court relied on counsel’s alleged concession about 

an issue of law, it erred. 

{¶56} Moreover, the explicit reservations Appellees allege to have been 

extinguished under the MTA were created and recorded on the same date as the Rembish 

deed, the alleged root of title. As stated, there were three deeds or title transactions 

recorded on February 9, 1957, i.e., the Murphy deed, the Hartzell deed, and the Rembish 

deed in Volume 342 of the Jefferson County Recorder’s Office conveying property to 

Bedway. The Rembish deed was the latest in time to be filed on this date, but it was 

nevertheless filed on the same date. 

{¶57} “Marketable record title” is statutorily defined as “a title of record, as 

indicated in section 5301.48 of the Revised Code, which operates to extinguish such 

interests and claims, existing prior to the effective date of the root of title, as are stated in 

section 5301.50 of the Revised Code.” (Emphasis added.) R.C. 5301.47. 

{¶58} A plain reading of the definition of marketable record title shows it 

extinguishes interests “existing prior to the effective date of the root of title.” It does not

state the MTA extinguishes an interest existing prior to the root of title, as Appellees 

impliedly argue, but “prior to the effective date of the root.” Thus, this court concludes the 

MTA does not extinguish reservations or exceptions of mineral interests created on the 

same date as the alleged root of title, like those in the Murphy and Hartzell deeds here. 
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{¶59} Based on the foregoing, the trial court erred by concluding the Rembish 

deed was a proper root of title. Absent a proper root of title, there is no title of record 

upon which to rely for the marketability of title, and extinguishment under the MTA does 

not occur. R.C. 5301.48. 

Arguments Regarding Bedway’s 1/10 Mineral Right Reservation

{¶60} The final argument in Appellants’ first assigned error argues the trial court 

erred by finding the Bailey, Mills, and Fashing deeds did not create a reservation in favor 

of Bedway, corresponding with the 1/10 mineral interest conveyed to Bedway by the 

Rembish deed. Thus, Appellants claim Appellees lack an “unbroken chain of title” to the 

1/10 interest since the alleged root of title contains an explicit exception and creates a 

reservation of the mineral rights in Bedway’s favor. We disagree with this aspect of their 

assignment. 

{¶61} Appellants assert each of the deeds conveying the property from Bedway 

to Appellees contained language creating a new reservation of oil and gas rights in 

Bedway’s favor. The trial court disagreed, and held in paragraphs 29-30, 33, and 35 of 

its opinion that the language did not create a new reservation but instead conveyed 

“[w]hatever interest Bedway had to the Belon interest * * * to the Defendants and/or their 

predecessors in interest.” (July 26, 2022 Order.) 

{¶62} As stated, the Rembish deed conveyed to the Bedway Coal Company real 

estate consisting of “an undivided one-tenth (1/10th) interest in the following described 

real estate: * * * containing 102 46/100 acres, more or less.” This deed does not contain 

a reservation of mineral rights, and thus, it conveyed 1/10 of the surface rights and mineral 

rights to Bedway. (Complaint, Exhibit C.) 

{¶63} Thereafter, and pursuant to three transfers in the year 2000, Bedway 

conveyed the property to the subsequent owners of the real property, i.e., the Bailey 

(Banal), Fashing, and Mills deeds. As detailed in the chain of title section of this opinion, 

each of these three deeds contain language stating: “EXCEPTING AND RESERVING 

all coal, gas, mineral rights and mining rights previously conveyed.” (Emphasis added.) 

Additionally, the deed conveying the property from Bedway to the Fashings also states: 

“EXCLUDING all coal, oil, gas and mineral rights previously conveyed.” (Emphasis 

added.) (Exhibit Q to Exhibit 1 to Plaintiffs’ Summary Judgment Response.) 
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{¶64} The inclusion of the words “previously conveyed” makes it abundantly clear 

the grantor was not creating a new reservation in its favor, but was instead acknowledging 

and repeating that previous rights had been excepted. This conclusion is consistent with 

a plain reading of the language employed in the deed, and there is no ambiguity in this 

regard. Thus, the trial court is affirmed in part on this basis only. 

{¶65} To summarize, we reverse the court’s decision finding Appellants’ interests 

have been extinguished by the MTA. We conclude Appellants’ first and second assigned 

errors have merit, in part. The trial court erred by finding the Rembish deed was a proper 

root of title, but it correctly found the three title transactions recorded in the year 2000 did 

not create a reservation of mineral rights in Bedway’s favor. 

{¶66} As for Appellants’ fourth and fifth assignments of error, which contend the 

trial court should have quieted title in their favor and awarded them damages, we decline 

to reach these issues since we reverse and remand for the trial court to address the merits 

of the parties’ arguments under the DMA. Thus, any award of damages and an order 

quieting title are premature. See State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 

Ohio St.3d 88, 89, 694 N.E.2d 459 (1998) (the ripeness requirement is designed to avoid 

premature adjudication of legal issues and conserve judicial resources). 

The Dormant Mineral Act

{¶67} Appellants’ third, fourth, and fifth assigned errors concern the Dormant 

Mineral Act and assert: 

“[3.] The trial court erred by denying Appellants’ Motion for Summary Judgment 

under the DMA. Judgment Entry, at 43.

“[4.] The trial court erred by denying Appellants’ Motion for Summary Judgment to 

quiet title to the 102 mineral acres. Judgment Entry, at 43.

“[5.] The trial court erred by denying Appellants’ Motion for Summary Judgment as 

to damages. Judgment Entry, at 43.”

{¶68} Appellants’ third and fourth assigned errors assert the trial court should 

have granted summary judgment in favor of Appellants under the DMA, and their fifth 

assignment of error seeks an award of damages flowing from these arguments. 

{¶69} As stated, the trial court did not address the parties’ arguments about the 

DMA because the court found Appellants’ mineral rights were extinguished under the 
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MTA. Because the trial court erred in the application of the MTA, the DMA arguments 

should be addressed. 

{¶70} This court has consistently held a trial court should have the first opportunity 

to review the underlying claims, and as such, we decline to consider the merits of these 

assignments of error for the first time on appeal. Fullum v. Columbiana Cnty. Coroner, 

2014-Ohio-5512, 25 N.E.3d 463, ¶ 45-46 (7th Dist.), citing Tree of Life Church v.

Agnew, 7th Dist. No. 12 BE 42, 2014-Ohio-878, ¶ 27-28. In light of our reversal on 

Appellants’ MTA arguments, we direct the trial court to address the parties’ DMA 

arguments on remand. 

Conclusion

{¶71} Based on the foregoing, we reverse the court’s decision finding Appellants’ 

interests have been extinguished by the MTA. We conclude Appellants’ first and second 

assigned errors have merit, in part. We affirm the trial court’s finding that Bedway did not 

create a reservation in its favor via the three deeds conveying the property recorded in 

the year 2000. 

{¶72} In light of our reversal on Appellants’ MTA arguments, we decline to address 

assignments of error three, four, and five. Instead, we direct the trial court to address the 

parties’ DMA arguments, whether to quiet title, and damages on remand. 

{¶73} The trial court’s decision is reversed in part, affirmed in part, and the case 

is remanded for further proceedings consistent with this opinion.

Waite, J., concurs.

D’Apolito, P.J., concurs.
[Cite as Kocher v. Ascent Resources-Utica, L.L.C., 2023-Ohio-3592.]

For the reasons stated in the Opinion rendered herein, the assignments of error 

are sustained and it is the final judgment and order of this Court that the judgment of the 

Court of Common Pleas of Jefferson County, Ohio, is reversed in part and affirmed in

part. We hereby remand this matter to the trial court for further proceedings according to 

law and consistent with this Court’s Opinion. Costs to be taxed against the Appellees.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.