[Cite as Thompson v. Custer, 2014-Ohio-5711.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY, OHIO 

EDWARD J. THOMPSON, et al., : O P I N I O N 

 Plaintiffs-Appellants, :

CASE NO. 2014-T-0052

 - vs - :

NATHAN J. CUSTER, et al., :

 Defendants-Appellees. :

Civil Appeal from the Trumbull County Court of Common Pleas. 

Case No. 2013 CV 2358. 

Judgment: Affirmed. 

Michael D. Rossi, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box 4270, 

Warren, OH 44482; Marty Nosich, The Law Offices of Bishop & Nosich, L.L.C., 143 

West Main Street, Cortland, OH 44410 (For Plaintiffs-Appellants). 

Matthew W. Onest, Gregory W. Watts, and William G. Williams, Krugliak, Wilkins, 

Griffiths & Dougherty Co., LPA, 4775 Munson Street, N.W., P.O. Box 36963, Canton, 

OH 44735-6963 (For Defendants-Appellees Nathan J. Custer and Noelle M. Custer). 

Peter A. Lusenhop, Vorys, Sater, Seymour and Pease, LLP, 52 East Gay Street, P.O. 

Box 1008, Columbus, OH 43215; Steven A. Chang, Vorys, Sater, Seymour and 

Pease, LLP, 106 South Main Street, Suite 1100, Akron, OH 44308 (For DefendantAppellee BP America Production Co.). 

Mike DeWine, Ohio Attorney General, Daniel J. Martin and Jennifer A. Barrett, 

Assistant Attorneys General, Environmental Enforcement Section, 2045 Morse Road, 

Suite C-2, Columbus, OH 43229-6693 (For Defendant-Appellee Mike DeWine). 
 2

TIMOTHY P. CANNON, P.J. 

{¶1} Appellants, Edward J. Thompson, Ann Hall Thompson, and Mae 

Thompson Baxter, appeal the summary judgment granted by the Trumbull County Court 

of Common Pleas in favor of appellees, Nathan J. and Noelle M. Custer. The trial court 

found the “Custers [Defendant-Appellees] are the rightful owners of all the mineral rights 

to the subject parcels of land” and “rejected in their entirety” appellants’ arguments that 

former R.C. 5301.56, entitled “abandonment of mineral interest and vesting in owner of 

surface of lands,” is unconstitutional. Based on the following, we affirm. 

{¶2} The Custers are the current surface owners of 98.963 acres in Vernon 

Township, Trumbull County, Ohio (hereinafter referred to as “Real Estate”). On April 

11, 2012, the Custers entered into an oil and gas lease with BP America Production 

Company (“BP”) for the Mineral Interests. A Memorandum of Oil and Gas Lease 

pertaining to the Custer Lease was recorded. 

{¶3} Appellants, however, claimed to possess a one-half interest in the mineral 

interests by virtue of their status as the living heirs of the prior owners of the Real Estate 

who reserved a one-half interest in the mineral interests by a deed recorded on March 

22, 1950. Appellants attempted to lease the reserved mineral interests to BP in October 

2012. Thereafter, appellants filed a “Notice of Claim to Preserve Mineral Interest” with 

the Trumbull County Recorder on March 25, 2013. 

{¶4} In December 2013, appellants filed a two count complaint, requesting: (1) 

a declaratory judgment that the oil and gas reservation had not been abandoned and (2) 

a declaratory judgment that the 1989 Ohio Dormant Mineral Act is unconstitutional. 
 3

{¶5} The parties submitted summary judgment motions. The trial court granted 

the motion for summary judgment filed by the Custers, stating: 

The Custers are the rightful owners of all of the mineral rights to the 

subject parcels of land and any lease they may execute with BP is 

not affected by any of the Plaintiffs’ claims. * * * 

The Court has also reviewed all of the arguments made by the 

Plaintiffs concerning the constitutionality of the 1989 DMA. The 

Plaintiffs’ arguments that said statute was unconstitutional are 

hereby rejected in their entirety. As stated before, the Plaintiffs had 

three years to create a savings event, including filing a claim to 

preserve their interest, and they failed to do so. The 2006 version 

of the statute does not revive a claim that was already abandoned 

and vested in the 1992 surface owners of the property 

(predecessors in title to the Defendants). 

{¶6} Appellants filed a notice of appeal and assert the following assignment of 

error: 

{¶7} “On the parties’ cross-motions for summary judgment, the trial court erred 

in granting those of Defendants-Appellees and denying that of Plaintiffs-Appellants.” 

{¶8} Under the assigned error, appellants present this court with two questions: 

[1.] Whether the 1989 version of the Dormant Minerals Act impliedly 

required some form of implementation before finally settling the 

subsurface owners’ and surface owners’ competing mineral 

interests, either by recorded abandonment claim permitting the 

subsurface owner to challenge its validity or by appropriate court 

proceeding to confirm that abandonment. 

[2.] Whether R.C. 5301.56 (eff. 3/22/89) is unconstitutional, as an 

unlawful ‘retroactive statute’ under Ohio Const. Art. II, §28, because 

(a) the General Assembly expressly intended that it apply 

retroactively; and (b) as an impairment of vested property interests, 

it is substantive, not purely remedial in nature. 

{¶9} We review a trial court’s decision on a motion for summary judgment de 

novo. Fed. Home Loan Mtge. Corp. v. Zuga, 11th Dist. Trumbull No. 2012-T-0038, 

2013-Ohio-2838, ¶13. Under Civil Rule 56(C), summary judgment is proper if: 
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(1) No genuine issue as to any material fact remains to be litigated; 

(2) the moving party is entitled to judgment as a matter of law; and 

(3) it appears from the evidence that reasonable minds can come to 

but one conclusion, and viewing such evidence most strongly in 

favor of the party against whom the motion for summary judgment 

is made, that conclusion is adverse to that party. 

Id. at ¶10, quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). 

{¶10} The moving party bears the initial burden to demonstrate from the 

pleadings, depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact, if any, that there is no genuine 

issue of material fact to be resolved in the case. Id. at ¶12. “If this initial burden is met, 

the nonmoving party then bears the reciprocal burden to set forth specific facts which 

prove there remains a genuine issue to be litigated, pursuant to Civ.R. 56(E).” Id., citing 

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). 

{¶11} This case involves the application of the current and former version of 

R.C. 5301.56, known as Ohio’s Dormant Mineral Act. Former R.C. 5301.56(B)(1), 

effective March 22, 1989, provided that a mineral interest held by one other than the 

surface owner “shall be deemed abandoned and vested in the owner of the surface” if 

no savings event occurred within the preceding 20 years. The six savings events 

permitted were: (i) the mineral interest was the subject of a title transaction that was 

filed or recorded in the recorder’s office; (ii) there was actual production or withdrawal 

by the holder; (iii) the holder used the mineral interest for underground gas storage; (iv) 

a drilling or mining permit was issued to the holder; (v) a claim to preserve the mineral 

interest was filed; or (vi) a separately listed tax parcel number was created. Id. at 

(B)(1)(c). 
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{¶12} Former R.C. 5301.56(B)(2) provided the following grace period: “A mineral 

interest shall not be deemed abandoned under division (B)(1) of this section because 

none of the circumstances described in that division apply, until three years from the 

effective date of this section.” 

{¶13} The current version of R.C. 5301.56, effective June 30, 2006, removed the 

automatic abandonment of the mineral interest held by one other than a surface owner 

and enacted a statutory notice mechanism to which the surface owner must adhere. 

Current R.C. 5301.56 requires a surface owner to provide notice to the holder of the 

mineral interest of the intent to have the severed mineral interest declared abandoned 

and of the mechanism by which a subsurface owner could oppose this notice. See R.C. 

5301.56(E)-(H). R.C. 5301.56 now provides, in pertinent part: 

(B) Any mineral interest held by any person, other than the owner 

of the surface of the lands subject to the 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 and none of the following applies: 

(1) The mineral interest is in coal, or in mining or other rights 

pertinent to or exercisable in connection with an interest in coal * * 

*. 

(2) The mineral interest is held by the United States, this state, or 

any political subdivision, body politic, or agency of the United 

States or this state * * *. 

(3) Within the twenty years immediately preceding the date on 

which notice is served or published under division (E) of this 

section, one or more of the following has occurred: 

(a) The mineral interest has been the subject of a title transaction 

that has been filed or recorded in the office of the county recorder 

of the county in which the lands are located. 

(b) There has been actual production or withdrawal of minerals by 

the holder * * *. 
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(c) The mineral interest has been used in underground gas storage 

operations by the holder. 

(d) A drilling or mining permit has been issued to the holder * * *. 

(e) A claim to preserve the mineral interest has been filed in 

accordance with division (C) of this section. 

(f) In the case of a separated mineral interest, a separately listed 

tax parcel number has been created for the mineral interest in the 

county auditor’s tax list and the county treasurer’s duplicate tax list 

in the county in which the lands are located. 

* * * 

(E) 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 

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. 

{¶14} Appellants assert the 2006 version of the statute controls abandonment 

because the Custers first asserted abandonment after 2006. Appellants maintain they 

committed the following two “savings events” under current R.C. 5301.56(B)(3)(a): (1) 

the October 25, 2012 record filing of the Memorandum of Lease with BP, and (2) the 
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Notice of Claim to Preserve Mineral Interest, filed March 25, 2013. Appellants concede 

that the first event to occur after the 1950 deed reservation of oil and gas interest was 

the October 2012 recording of the Memorandum of Lease with BP. 

{¶15} Conversely, the Custers assert the 1989 version of the Dormant Mineral 

Act controls. The Custers maintain that because appellants have failed to identify any 

savings event to preserve their mineral interest in the property from March 22, 1969, to 

March 22, 1992, the three-year grace period after the 1989 effective date, abandonment 

applies, and the mineral interests passed to them upon their acquisition of the Real 

Estate. 

{¶16} To support their argument, appellants cite to two trial court opinions, 

namely Dahlgren v. Brown Farms Properties, Carroll C.P. No. 13-CVH-27445 (Nov. 5, 

2013), and M & H Partnership v. Hines, Harrison C.P. No. CVH-2012-0059 (Jan. 14, 

2014). In Dahlgren and Hines, the trial courts determined that because no one asserted 

or sought to enforce an abandonment claim while the 1989 version was in effect, the 

2006 version controls. The trial court in Dahlgren classified the mineral rights under the 

1989 version as “inchoate” rights. The trial court in Dahlgren reasoned: 

After careful consideration, this Court agrees with the holders of the 

subsurface mineral rights. Without any contrary statutory language, 

this Court concludes that the 1989 version impliedly required 

implementation before it finally settled the parties’ rights, at least by 

a recorded abandonment claim that permitted the adverse party to 

challenge its validity, if not by an appropriate court proceeding to 

confirm that abandonment. Circumstances that support a claimed 

right do not by themselves provide a complete remedy. Absent any 

implementation or enforcement of claimed abandonment rights 

before the 2006 amendment, the landowner defendants must 

comply with the procedures which the 2006 amendment requires. 
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{¶17} The Seventh Appellate District, in Walker v. Shondrick-Nau, 7th Dist. 

Noble No. 13 NO 402, 2014-Ohio-1499, found “the Dahlgren court’s characterization of 

the mineral rights under the 1989 version is contrary to the statute itself, which states 

that the mineral rights are ‘vested.’” Id. at ¶43. In Walker, the court addressed whether 

the trial court erred in applying the 1989 version of R.C. 5301.56 and not the 2006 

version. Id. at ¶30-52. The appellant, like those in this case, argued the 2006 version 

of the statute is applicable because it was the law in effect during the events that gave 

rise to the suit. Id. at ¶32. The appellant in Walker noted that the appellee did not 

purchase the disputed property until 2009 and, therefore, did not own the surface rights 

during the time the 1989 version of the statute was effective. Id. The Walker court 

recognized that “[n]o Ohio appellate court or the Ohio Supreme Court ha[d] yet to 

address the issue of when to apply the 1989 version of R.C. 53301.56 and when to 

apply the 2006 version.” Id. at ¶35. 

{¶18} The Walker court noted that the 1989 version of R.C. 5301.56 stated any 

mineral interest held by anyone other than the surface owner “shall be deemed 

abandoned and vested” in the surface owner if none of the savings events occurred. Id. 

at ¶38, quoting former R.C. 5301.56(B)(1). The court further recognized the 1989 

version became effective on March 22, 1989, but provided a three-year grace period 

until March 22, 1992. “[O]n March 22, 1992, [the appellant’s] mineral interest was 

‘deemed abandoned and vested’ in the surface owner at the time.” Id. at ¶39. 

Once the mineral interest vested in the surface owner, it was 

reunited with the surface estate. [The appellant] did not have any 

mineral interest in the subject property after March 22, 1992, 

because on that date the interest automatically vested in the 

surface owner by operation of the statute. And once the mineral 
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interest vested in the surface owner, it ‘completely and definitely’ 

belonged to the surface owner. 

Id. at ¶41. See also Swartz v. Householder, 7th Dist. Jefferson Nos. 13 JE 24 & 13 JE 

25, 2014-Ohio-2359, ¶39 (“As we held in Walker, the 1989 DMA can still be utilized for 

mineral interests that were deemed vested thereunder (and the current version could be 

used in the alternative for later acts of abandonment if the mineral holder demonstrated 

that there were savings events under the 1989 DMA).”); Wendt v. Dickerson, 5th Dist. 

Tuscarawas No. 2014 AP 01 0003, 2014-Ohio-4615, ¶37 (“[W]e are inclined to follow 

the persuasive authority of our colleagues in the Seventh District Court of Appeals to 

find the trial court correctly determined that the 1989 DMA applied and under the 

language of the 1989 DMA, the mineral rights automatically vested with the surface 

owners on March 22, 1992.”). 

{¶19} The Ohio Supreme Court accepted a discretionary jurisdictional appeal of 

Walker on the following applicable propositions of law: 

Proposition of Law No. I: The 2006 version of the DMA is the only 

version of the DMA to be applied after June 30, 2006, the effective 

date of said statute. 

Proposition of Law No. II: To establish a mineral interest as 

‘deemed abandoned’ under the 1989 version of the DMA, the 

surface owner must have taken some action to establish 

abandonment prior to June 30, 2006. In all cases where a surface 

owner failed to take such action, only the 2006 version of the DMA 

can be used to obtain relief. 

Proposition of Law No. III: To the extent the 1989 version of the 

DMA remains applicable, the 20-year look-back period shall be 

calculated starting on the date a complaint is filed which first raises 

a claim under the 1989 version of the DMA. 

* * * 
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Proposition of Law No. V: Irrespective of the savings events in R.C. 

5301.56(B)(3), the limitations in R.C. 5301.49 can separately bar a 

claim under the DMA. 

Proposition of Law No. VI: The 2006 version of the DMA applies 

retroactively to severed mineral interests created prior to its 

effective date. 

Memorandum in Support of Jurisdiction for Shondrick Nau, Case No. 2014-0803. 

{¶20} Under the facts presented, the trial court did not err in its determination 

that the 1989 version of R.C. 5301.56 was applicable. “A statute is presumed to be 

prospective in its operation unless expressly made retrospective.” R.C. 1.48. 

Additionally, the reenactment, amendment or repeal of a statute does not affect “any 

validation, cure, right, privilege, obligation, or liability previously acquired, accrued, 

accorded, or incurred thereunder.” R.C. 1.58(A)(2). 

{¶21} “There is no language in the 2006 version of R.C. 5301.56 to suggest that 

it is to be applied retroactively. Thus, it is only to apply prospectively. Additionally, 

although R.C. 5301.56 was amended in 2006, this amendment would not have affected 

any ‘validation, cure, right, privilege, obligation, or liability previously acquired.’” Walker, 

supra, at ¶37. 

{¶22} It is undisputed that after 1950, no action was taken with regard to the 

reserved mineral interest until the recording of the Memorandum of Lease with BP in 

October 2012. The plain language of the 1989 version of R.C. 5301.56 provided for 

automatic vesting of the mineral rights in the surface owner unless a “savings event” 

occurred within the preceding 20 years. See former R.C. 5301.56(B)(1)(c) (a mineral 

interest held by one other then the owner “shall be deemed abandoned and vested in 

the owner of the surface” if no savings event occurred within the preceding twenty years 
 11

(emphasis added)). Additionally, former R.C. 5301.56(B)(2) provided that a mineral 

interest shall not be deemed abandoned due to a lack of savings events until three 

years from the March 22, 1989 effective date of the act. Notably, there is no language 

in former R.C. 5301.56 that required a surface owner to affirmatively assert a claim to 

the subsurface rights. To the contrary, former R.C. 5301.56 required those who claimed 

a mineral interest to assert their interest by acting in accordance with one of the 

statutory saving provisions. Id. Former R.C. 5301.56 expressly stated that the mineral 

rights became abandoned and vested with the surface owner unless a savings event 

occurred within the applicable time period; “[a] vested right is a right fixed, settled, 

absolute, and not contingent upon anything.” Rehor v. Case Western Reserve Univ., 43 

Ohio St.2d 224, 229 (1975). Once mineral rights vest with the surface property owner, 

those rights cannot be abrogated by a subsequent legislative act. Therefore, neither of 

appellants actions taken in 2012 and 2013 could revive their mineral interest because, 

pursuant to former R.C. 5301.56, any mineral interest in the property at issue 

automatically vested in the surface owner on March 22, 1992. See Swartz, supra, at 

¶34 (“the 2006 DMA contains no language eliminating property rights that were 

previously expressly said to be vested[.]”). 

{¶23} Appellants next argue that former R.C. 5301.56(B)(1)(c) is an 

unconstitutional “retroactive statute” under the Retroactivity Clause of the Ohio 

Constitution, Article II, Section 28. Article II, Section 28 of the Ohio Constitution states 

that “[t]he general assembly shall have no power to pass retroactive laws.” Courts have 

interpreted the constitutional prohibition against retroactive laws to apply “to laws 
 12

affecting substantive rights but not to the procedural or remedial aspects of such laws.” 

Kunkler v. Goodyear Tire & Rubber Co., 36 Ohio St.3d 135, 137 (1988). 

{¶24} A two-step standard is followed to decide whether the retroactive 

application of a statute will be deemed to violate the above referenced Retroactivity 

Clause. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶10 (citation omitted). 

Pursuant to the first prong of the “retroactive” test, the language of the statute is 

reviewed to determine whether the legislature expressly stated that retroactive 

application was intended. Id. If the wording of the General Assembly is sufficiently 

explicit to show a retroactive intent, the statute is then reviewed to determine if it affects 

a substantive or remedial matter. Id. 

{¶25} Contrary to appellants’ argument, former R.C. 5301.56(B)(1)(c) did not 

operate in a retroactive manner. Former R.C. 5301.56(B)(1)(c) provided mineral 

holders with a three-year grace period, from March 22, 1989, until March 22, 1992, to 

employ one of the enumerated “savings events.” Although it looked back the preceding 

20 years, former R.C. 5301.56(B)(1)(c) did not negate as a matter of law one’s mineral 

interest upon its effective date. 

{¶26} In Texaco v. Short, 454 U.S. 516 (1982), the Supreme Court of the United 

States was faced with several constitutional challenges to the state of Indiana’s Mineral 

Lapse Act. The Act provided “that a severed mineral interest that is not used for a 

period of 20 years automatically lapses and reverts to the current surface owner of the 

property, unless the mineral owner * * * files a statement of claim in the local county 

recorder’s office.” Id. at syllabus. Similar to former R.C. 5301.56(B)(1)(c), the Indiana 

statute contained a two-year grace period in which owners of mineral interests that were 
 13

then unused and subject to lapse could preserve those interests by filing a claim in the 

recorder’s office. Id. 

{¶27} Although in the context of a Taking Clause, the same reasoning and 

analysis applies in this matter. The Texaco Court stated: 

In this case, the 2-year grace period included in the Indiana statute 

forecloses any argument that the statute is invalid because mineral 

owners may not have had an opportunity to become familiar with its 

terms. It is well established that persons owning property within a 

State are charged with knowledge of relevant statutory provisions 

affecting the control or disposition of such property. 

Texaco, supra, at 532. 

{¶28} As former R.C. 5301.56(B)(1)(c) did not involve a retroactive application 

that would have stripped mineral rights owners of their rights upon its effective date, it is 

therefore constitutional. 

{¶29} Appellants’ assignment of error is without merit. 

{¶30} The judgment of the Trumbull County Court of Common Pleas is hereby 

affirmed. 

CYNTHIA WESTCOTT RICE, J., 

THOMAS R. WRIGHT, J. 

concur.