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

Alford v. Collins-McGregor Operating Co., Slip Opinion No. 2018-Ohio-8.] 

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. 2018-OHIO-8

ALFORD ET AL., APPELLANTS, v. COLLINS-MCGREGOR OPERATING COMPANY 

ET AL., APPELLEES.

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

may be cited as Alford v. Collins-McGregor Operating Co., Slip Opinion No. 

2018-Ohio-8.] 

Oil and gas—Leases—Action seeking partial termination of lease for lessees’ 

failure to explore or drill at depths below those currently being exploited—

Motion to dismiss for failure to state claim properly granted—Ohio does 

not recognize implied covenant to explore further.

(No. 2016-1281—Submitted September 26, 2017—Decided January 3, 2018.) 

APPEAL from the Court of Appeals for Washington County, 

No. 16CA9, 2016-Ohio-5082. 

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O’CONNOR, C.J. 

I. Introduction 

{¶ 1} Appellants, Linda Griffith Alford, George Alford Jr., Bershelle 

Alford Giambattista, Joseph Alford, Judith Hanlon Farnsworth, Donna R. Hanlon, 

and James C. Eutzler (collectively, the “Landowners”), sued appellees, CollinsMcGregor Operating Company and Winston Oil Company (collectively, “CollinsMcGregor”), seeking the partial termination of an oil and gas lease. The trial court 

granted Collins-McGregor’s motion to dismiss for failure to state a claim and the 

Fourth District Court of Appeals affirmed. 

{¶ 2} This appeal requires us to consider whether the Landowners’ claim 

for breach of the implied covenant to explore further is cognizable in Ohio, and if 

so, the availability of partial horizontal forfeiture as a remedy for such a breach. 

We conclude that Ohio does not recognize an implied covenant to explore further 

separate and apart from the implied covenant of reasonable development. We 

therefore need not reach the issue of remedy. 

II. Relevant Background

{¶ 3} The Landowners hold interests in approximately 74 acres of land in 

Washington County, not far from the Ohio River. The land is subject to an oil and 

gas lease entered into on September 16, 1980, between the owners of the property 

at that time and Collins-McGregor.1

 “[T]he sole and only purpose” of the lease is 

to permit “mining and operating for oil and gas and laying pipe lines, and building 

tanks, powers, stations, and structures thereon, to produce, save and take care of 

said products.” In return for permission to mine the land, Collins-McGregor 

committed to make royalty payments based on the amount of gas produced from 

the land and to deliver a portion of the oil produced from the land to the lessors. 

 

1

 Appellee Winston Oil Company was not a party to the original lease. It obtained its interest in 

the lease by way of an assignment in 1992. 
January Term, 2018 

3

{¶ 4} The lease provides that it “shall remain in force for a term of One (1) 

years from [the effective] date, and as long thereafter as oil or gas, or either of them, 

is produced from said land by the lessee.” It is silent as to certain aspects of drilling 

and production. For example, the lease does not require production from any 

specific number of wells or from any particular depth. The lease also does not 

disclaim the application of any implied covenants. 

{¶ 5} A well was drilled in 1981 and has produced oil and gas in paying 

quantities since then from a formation called the Gordon Sand. To date there has 

not been any production from the land at any depths below the Gordon Sand. The 

Landowners contend, however, that exploration and production of oil and gas have 

been occurring near their property from below the Gordon Sand—specifically, 

from the Marcellus and Utica formations—but Collins-McGregor has failed to 

explore whether production can be obtained from those deep formations because it 

does not have the equipment or financial resources required to do so. 

{¶ 6} On November 20, 2015, the Landowners filed an amended complaint 

against Collins-McGregor alleging that it has improperly failed to explore or drill 

for oil at depths below the Gordon Sand. They sought a judgment that the portion 

of the lease covering depths below the Gordon Sand has terminated because it has 

either expired or been abandoned and that Collins-McGregor has breached 

numerous implied covenants. They also sought a judgment quieting title in the 

Landowners’ favor as to the depths below the Gordon Sand. The Landowners have 

not sought to terminate Collins-McGregor’s rights under the lease with respect to 

the well that has produced oil from 1981 to the present. 

{¶ 7} Among the implied covenants that the Landowners claim CollinsMcGregor has breached are the implied covenant of reasonable development and 

the implied covenant to explore further. Ultimately, the remedy sought by the 

Landowners is partial forfeiture of Collins-McGregor’s rights under the lease such 

that all rights to explore for, develop, and exploit resources from depths below the 
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Gordon Sand revert to the Landowners. Collins-McGregor describes this as 

horizontal forfeiture (i.e., forfeiture of the right to drill to a particular horizontal 

layer or formation beneath the surface). 

{¶ 8} Collins-McGregor moved to dismiss under Civ.R. 12(B)(6), arguing 

that Ohio law does not recognize the remedy of horizontal forfeiture. The trial court 

agreed and dismissed the case, holding that under the plain terms of the lease, the 

still-productive well drilled in 1981 was sufficient to hold the lease across all acres 

and at all depths. The Fourth District Court of Appeals affirmed, holding that Ohio 

law does not recognize partial horizontal forfeiture of oil and gas rights as an 

available form of relief. 

{¶ 9} We accepted the Landowners’ discretionary appeal. 

III. Analysis 

{¶ 10} We review de novo a decision granting a motion to dismiss under 

Civ.R. 12(B)(6). Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio4362, 814 N.E.2d 44, ¶ 5. In conducting this review, we accept as true all factual 

allegations in the complaint. Id. “[T]hose allegations and any reasonable 

inferences drawn from them must be construed in the nonmoving party’s favor.” 

Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 

956 N.E.2d 814, ¶ 12. To grant the motion, “it must appear beyond doubt that the 

plaintiff can prove no set of facts in support of the claim that would entitle the 

plaintiff to the relief sought.” Id.

A. The Implied Covenant to Explore Further 

{¶ 11} We begin by addressing the Landowners’ second proposition. They 

argue that the appellate court erred by affirming the dismissal of their amended 

complaint for failure to state a claim because they alleged a breach of the implied 

covenant to explore further, and a breach of that covenant may be remedied by 

horizontal forfeiture. Collins-McGregor raises two principal arguments in 

response. It argues that Ohio law does not recognize the implied covenant to 
January Term, 2018 

5

explore further, and even if it did, partial horizontal forfeiture is not an available 

remedy for a breach of an implied covenant in an oil and gas lease. We agree with 

Collins-McGregor that Ohio does not recognize an implied covenant to explore 

further. 

{¶ 12} Oil and gas leases are contracts, and therefore, “ ‘[t]he rights and 

remedies of the parties to an oil or gas lease must be determined by the terms of the 

written instrument.’ ” Lutz v. Chesapeake Appalachia, L.L.C., 148 Ohio St.3d 524, 

2016-Ohio-7549, 71 N.E.3d 1010, ¶ 9, quoting Harris v. Ohio Oil Co., 57 Ohio St. 

118, 129, 48 N.E. 502 (1897). “It is a well-known and established principle of 

contract interpretation that ‘[c]ontracts are to be interpreted so as to carry out the 

intent of the parties, as that intent is evidenced by the contractual language.’ ” Lutz, 

quoting Skivolocki v. E. Ohio Gas Co., 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), 

paragraph one of the syllabus. Notwithstanding this principle, we have also long 

held that oil and gas leases are ordinarily subject to an implied covenant to 

reasonably develop the land. See Harris at paragraph one of the syllabus 

(recognizing “an implied covenant on part of the lessee that he will drill and operate 

such number of oil wells on the lands as would be ordinarily required for the 

production of oil contained in such lands, and afford ordinary protection to the 

lines”).

{¶ 13} The parties can prevent application of the implied covenant of 

reasonable development by including in the lease “express provisions to the 

contrary.” Beer v. Griffith, 61 Ohio St.2d 119, 399 N.E.2d 1227 (1980), paragraph 

two of the syllabus. For example, the parties can include a general disclaimer of 

implied covenants. E.g., State ex rel. Claugus Family Farm, L.P. v. Seventh Dist. 

Court of Appeals, 145 Ohio St.3d 180, 2016-Ohio-178, 47 N.E.3d 836, ¶ 32, 33 

(holding that the parties’ disclaimer prevented application of an implied covenant). 

The parties can also describe the development of the land sought by the parties in 

the terms of the lease itself. See Ionno v. Glen-Gery Corp., 2 Ohio St.3d 131, 133, 
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443 N.E.2d 504 (1983) (“Thus, where a lease fails to contain any specific reference 

to the timeliness of development, the law will infer a duty to operate with 

reasonable diligence”); see also Kachelmacher v. Laird, 92 Ohio St. 324, 110 N.E. 

933 (1915), paragraph one of the syllabus (“There can be no implied covenants in 

a contract in relation to any matter that is specifically covered by the written terms 

of the contract itself”). 

{¶ 14} Here, the lease does not contain a disclaimer of implied covenants, 

nor does it otherwise address whether any specific number of wells must be drilled 

or the depth to which any wells must be drilled. As a result, at least with respect to 

the matters at issue in this case, the lease is subject to the implied covenant of 

reasonable development. 

{¶ 15} In this proposition, the Landowners raise the implied covenant to 

explore further, a covenant we have not before considered. The Landowners cite 

decisions of the Fifth Appellate District, which they claim have recognized the 

covenant. See Am. Energy Servs., Inc. v. Lekan, 75 Ohio App.3d 205, 215, 598 

N.E.2d 1315 (5th Dist.1992); Moore v. Adams, 5th Dist. Tuscarawas 

No. 2007AP090066, 2008-Ohio-5953, ¶ 35; Mauger v. Positron Energy 

Resources, Inc., 5th Dist. Morgan No. 14AP0001, 2014-Ohio-4613, ¶ 65. In the 

Landowners’ view, recognition of the implied covenant to explore further would 

support the purpose of the lease by encouraging exploration and development of 

mining activities for the mutual profit of the parties. 

{¶ 16} Collins-McGregor argues that although several cases from the Fifth 

District include the covenant to explore further in a list of commonly accepted 

covenants, none actually applies the covenant. Importantly, Collins-McGregor 

argues, these cases do not provide any discussion of what should guide any 

consideration of a claim that the implied covenant to explore further has been 

breached. Collins-McGregor also argues that there is no need for the covenant 

because the covenant of reasonable development provides sufficient protection to 
January Term, 2018 

7

landowners concerning the productive use of the land. Finally, Collins-McGregor 

points to decisions from the Texas and Oklahoma Supreme Courts, both of which 

have specifically declined to recognize an independent implied covenant to explore 

further. See Sun Exploration & Prod. Co. v. Jackson, 783 S.W.2d 202 (Tex.1989); 

Mitchell v. Amerada Hess Corp., 638 P.2d 441 (Okla.1981). Both courts held there 

was no implied covenant to explore further separate and apart from the implied 

covenant of reasonable development. See Sun Exploration at 204; Mitchell at 449. 

{¶ 17} We agree with Collins-McGregor. Although the Landowners have 

an interest in the development of the land, that interest is sufficiently protected by 

the implied covenant of reasonable development and does not require recognition 

of a new implied covenant to explore further. 

{¶ 18} The purpose of the implied covenant of reasonable development is 

to protect the lessor’s interest in the lease, which is to obtain production and, hence, 

profits once the right to drill has been granted to the lessee. Summers Oil and Gas, 

Section 17:10 (3d Ed.2008). This protection is needed because oil and gas leases 

typically provide, as the one here does, that the lessor’s compensation is a royalty 

payment based on the production of oil from the land. Id.; see also Chesapeake 

Exploration, L.L.C. v. Buell, 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, 

¶ 16, quoting 1 Brown, Brown & Gillaspia, The Law of Gas and Oil Leases, Section 

6.01 (2d Ed.2014) (“ ‘The principal or basic consideration for a [mineral rights] 

lease is the agreement by the lessee to develop the premises for oil and gas and pay 

royalties thereon to the lessor’ ”). 

{¶ 19} The first case in which we recognized the covenant reflected this 

purpose. In Harris, 57 Ohio St. 118, 126, 48 N.E. 502, the lessor was entitled to 

receive a royalty payment based on the amount of oil produced from the land. 

When wells on adjacent land presented a risk of draining the oil from under the 

lessor’s property, the lessor demanded that the lessee drill additional wells. The 

lessee refused and then sued to prevent the lessor from drilling new wells himself. 
SUPREME COURT OF OHIO

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We agreed with the lessor, holding that “under an oil lease which is silent as to the 

number of wells to be drilled, there is an implied covenant that the lessee shall 

reasonably develop the lands, and reasonably protect the lines.” Id. at 127. 

{¶ 20} More recently, we have applied the implied covenant of reasonable 

development to protect the lessor’s interest in production even when the lessor 

receives annual payments under the lease as advance payments of royalties. In 

Ionno, 2 Ohio St.3d 131, 443 N.E.2d 504, the lease provided that annual payments 

would be credited against future royalties, and the lessees argued that these 

payments prevented application of the covenant because the lease gave the lessees 

the freedom to choose whether to develop the land as long as the payments are 

made. We disagreed. We held that despite the annual advance-royalty payments, 

“there is manifestly an implied covenant on the part of the lessees that they will 

work the land with ordinary diligence, not simply for their own advantage and 

profit, but also so that lessors may secure the actual consideration for the lease, i.e., 

the production of minerals and the payment of a royalty on the minerals mined.” 

Id. at 134. We recognized that if annual payments were deemed to be a sufficient 

substitute for timely development, we would “reward mere speculation without 

development, effort, or expenditure on the part of the lessees” and “allow a lessee 

to encumber a lessor's property in perpetuity merely by paying an annual sum.” Id. 

{¶ 21} On the other hand, the implied covenant of reasonable development 

is not entirely one-sided in favor of landowners. We have recognized that lessees 

face various risks in any oil and gas lease, including substantial upfront investments 

with an uncertain potential for returns. We have therefore held that the covenant 

imposes on the lessee only the obligation to act as a reasonably prudent operator 

would as it develops the land under the lease. See Harris, 57 Ohio St. at 127, 48 

N.E. 502 (“The development and protection of lines which is thus implied when 

the lease is silent is such as is usually found in the same business of an ordinarily 

prudent man—neither the highest nor lowest, but about medium or average”). 
January Term, 2018 

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Whether the lessee has breached the implied covenant of reasonable development 

should be determined by the facts and circumstances of each particular case. See

Summers Oil and Gas, Section 17:15. 

{¶ 22} In light of this, the Landowners’ interests in exploration of deep 

formations below the Gordon Sand are sufficiently protected by the implied 

covenant of reasonable development. We therefore decline to recognize a separate 

covenant to explore further. 

{¶ 23} In this regard, we agree with the Oklahoma Supreme Court that 

recognition of a separate implied covenant to explore further would not support the 

overarching purpose of an oil and gas lease. As that court stated, “the profit motive 

[is] an instrumental force in oil and gas leases on behalf of both lessee and lessor,” 

and to fail to recognize the profit motive “is to ignore the very essence of the 

contract.” Mitchell, 638 P.2d at 447. The implied covenant of reasonable 

development furthers this purpose by focusing on all facts and circumstances 

relevant to development, whether they relate to exploration—for example, the costs 

of exploration and likelihood that exploration will result in production at or above 

a particular level—or to some other aspect of development. As the Oklahoma 

Supreme Court put it, the issue is whether a prudent operator would further develop 

the land “having due consideration for the interest of both the lessee and lessor, 

considering all factors, including what is known about the market, the geology and 

adjoining activity.” Id. Recognizing a separate implied covenant to explore further 

would prove unhelpful at best, as it would focus on just a small subset of factors 

relevant to the overall profitability of development to the lessor and the lessee. 

{¶ 24} We also note that the implied covenant of reasonable development 

is well suited to address the primary driver of the Landowners’ interests here, 

namely, the emergence of new drilling technologies permitting production from 

deep strata that could not be obtained before. We need not address that issue here, 

however, because the Landowners have raised only the implied covenant to explore 
SUPREME COURT OF OHIO

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further in this proposition, and we express no opinion with respect to how a prudent 

operator would or would not employ new deep-drilling technologies. Finally, as 

noted above, to the extent the parties wish to address exploration or the use of new 

technologies in the terms of the lease itself, they are of course free to do so. 

{¶ 25} We therefore hold that under Ohio law concerning oil and gas leases, 

there is no implied covenant to explore further separate and apart from the implied 

covenant of reasonable development. As a result, it is unnecessary for us to address 

the Landowners’ second argument concerning the availability of partial horizontal 

forfeiture as a remedy, and we express no opinion on the appellate court’s decision 

on that issue to the extent it applies to the implied covenants raised by the 

Landowners other than the implied covenant to explore further. 

B. The Law Applicable to an Oil and Gas Lease 

{¶ 26} The Landowners’ first proposition is that the law applicable to one 

form of oil and gas lease may not be, and generally is not applicable to another and 

different form. This proposition is uncontroversial and simply appears to restate 

what this court has recognized since 1897: “The rights and remedies of the parties 

to an oil or gas lease must be determined by the terms of the written instrument, 

and the law applicable to one form of lease may not be, and generally is not, 

applicable to another and different form.” Harris, 57 Ohio St. at 129, 48 N.E. 502. 

IV. Conclusion 

{¶ 27} For these reasons, we affirm the judgment of the court of appeals 

dismissing the Landowners’ complaint for failure to state a claim. 

Judgment affirmed. 

O’DONNELL, KENNEDY, FRENCH, FISCHER, and DEWINE, JJ., concur. 

O’NEILL, J., dissents. 

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Scullin & Cunning, L.L.C., and Sean R. Scullin, for appellants. 
January Term, 2018 

11 

Geiger, Teeple, Robinson & McElwee, P.L.L.C., and Bruce Smith, for 

appellees. 

Porter, Wright, Morris & Arthur, L.L.P., Christopher J. Baronzzi, L. 

Bradfield Hughes, and Ryan T. Steele, urging affirmance for amicus curiae 

American Petroleum Institute. 

Vorys, Sater, Seymour & Pease, L.L.P., Timothy B. McGranor, and 

Gregory D. Russell, urging affirmance for amici curiae Ohio Oil and Gas 

Association and Southeastern Ohio Oil and Gas Association. 

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