[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Browne v. Artex Oil Co., Slip Opinion No. 2019-Ohio-4809.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2019-O HIO -4809
B ROWNE ET AL ., A PPELLANTS , v. A RTEX O IL C OMPANY ET AL ., A PPELLEES
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as Browne v. Artex Oil Co., Slip Opinion No. 2019-Ohio-4809.] The limitations period set forth in R.C. 2305.04 applies to a claim for declaratory judgment that an oil and gas lease has terminated by its terms and by operation of law due to lack of production. (No. 2018-0942—Submitted June 11, 2019— Decided November 26, 201 9.)

A PPEAL from the Court of Appeals for Guernsey County, No. 17 CA 20,
2018-Ohio-3746.

_____________________ F RENCH , J. {¶ 1} In this appeal, we consider which statute of limitations applie s to a claim for declaratory judgment that an oil and gas lease has te rminated by its terms and by operation of law due to lack of production. We hold tha t the applicable statute is R.C. 2305.04, which states that an action to recover title to or possession of real property shall be brought within 21 years after the cau se of action accrues.S UPREME C OURT OF O HIO

2 Facts and procedural background {¶ 2} Appellants, Barry L. Browne and Rosa R. Browne, own approximately 86 acres of land, along with the oil and gas inte rests underlying the property, in Guernsey County, Ohio. An oil and gas lease execu ted in 1975 by one of the Brownes’ predecessors in i nterest and recorded in Januar y 1976 burdens the property. The lease “grant[ed], demise[d], lease[d] and let” t he identified real property to the lessee for the purpose of mining and operating for oil and gas for a one-year primary term and a secondary term for as “long thereaf ter as oil and gas, or either of them, is produced by lessee from said land.” One well was drilled on the property. {¶ 3} Appellees, Artex Oil Company, Artex Energy Group, L.L.C., Arlom a Corporation, and James Huck, L.L. C., acquired interests in the lease through various assignments, cross-assign ments, and stipulations of int erest. Artex Oil Company has operated the well since 1999. Its records state th at from December 1999 through September 2014, the well produced 1,771.49 barrels of oil, which generated gross revenue of more than $100,000. Artex Oil Compa ny presented evidence in 2016 that since the Brownes obtained ownership of t he mineral interests in 2012, it had paid royalties to the Brownes in 2013, 2014, an d 2015. {¶ 4} In December 2014, two years after obtaining ownership of the mi neral estate, the Brownes filed this action against appellees for qui et title, declaratory judgment, conversion, and unjust enrichment, all based on their contention that the lease had terminated by its terms due to lack of production. T he complaint alleged that the well did not produce any oil or gas from its inception until 1999 and that the well had been inoperative for a sufficient time to terminat e the lease. The
Brownes based thei r allegation of pre- 1999 lac k of pr oduction o n reports from the Ohio Department of Natural Resour ces that allegedly showed no r eported production from the well through 1999. The Brownes requested t hat the court quietJanuary Term, 2019

3 the title to their property, declare the lease null and void, a nd award damages for appellees’ conversion and unjust enrichment. {¶ 5} In their answer, appellees asserted a statute-of-limitations de fense to the Brownes’ claims. Appellees a lso filed a counterclaim for a declaratory judgment that the lease remained valid and in effect because of continuous production of oil since 1977. {¶ 6} The parties filed cross-motions for summary judgment. Although it initially denied the parties’ motions, the trial court, on reco nsideration, granted summary judgment for appellees a nd dismissed the Brownes’ claim s with prejudice. The trial court ac knowledged appellees’ evidence of production in paying quantities from the well and held that the Brownes had n ot presented any evidence to satisfy their burden of proving that the well was n o longer profitable. With respect to the Brownes’ allegations of lack of production prior to 1999, however, the court held that “there is a 15-year statute of lim itation” applicable to the Brownes’ claims, so any lack of production prior to 1999 wa s irrelevant. Based on appellees’ evidence of production since 1999, the court held that the lease
remained valid and enforceable according to its terms. {¶ 7} The Brownes appealed the trial court’s judgment and, as relevan t here, argued that the trial court erred by holding that their claims were subject to a 15- year statute of limitations. They argued that this is a case f or recovery of title to or possession of real property and that the correct limitations pe riod is the 21-year period under R.C. 2305.04. The Fifth D istrict rejected that ar gument and affirmed the trial court’s judgment. I t held that pursuant to R.C. 2305 .041, the Brownes’ case is subject to the 15-year statute of limitations for an ac tion upon a written agreement or contract in former R.C. 2305.06, Am.Sub.H.B. No. 1 52, 145 Ohio Laws, Part II, 3341, 3569 (“H.B. 152”). {¶ 8} This court accepted a discretionary appeal on a single proposit ion of law. 153 Ohio St.3d 1485, 2018-Ohio-3867, 108 N.E.3d 82. The Brownes ask thisS UPREME C OURT OF O HIO

4 court to hold that an a ction for a declaratory judgment that an oil and gas lease has terminated by its own terms for lack of production is governed by the 21-year
statute of limitations in R.C. 2305.04 and that the limitations period does not begin to run until a justiciable controversy arises. Analysis {¶ 9} This appeal presents a purely le gal question—which statute of limitations applies to the Brownes’ claim that the lease termin ated by its terms and by operation of law. See Ohio Bur. of Workers’ Comp. v. McKinley , 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 34. Law of the case does not moot th e statute-of-limitations question {¶ 10} Before turning to the parties’ a rguments regarding the appropri ate statute of limitations, we first address the dissenting opinion ’s assertion that that question is moot because its answer will not affect the outcome of this case. The dissent states that the appellate court’s rulings regarding the burden of proof and the evidence that may be used to establish production of oil an d gas remain the law of the case and foreclose any possibility that the Brownes can survive appellees’ motion for summary judgment, even if a 15-year statute of limit ations does not bar consideration of pre-1999 lac k of production. We disagree. {¶ 11} The law-of-the-case doctrine pr ovides that “the decision of a reviewing court in a case remains the law of that case on the l egal questions involved for all subsequent proce edings in the case at both the trial and reviewing
levels.” Nolan v. Nolan , 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). The law-ofthe-case doctrine is a rule of practice, not a rule of substant ive law, and courts will not apply it to achieve unjust results. Id. , citing Gohman v. St. Bernard , 111 Ohio St. 726, 730-731, 146 N.E. 291 (1924), overruled in part on other grounds , New York Life Ins. Co. v. Hosbrook , 130 Ohio St. 101, 196 N.E. 888 (1935), paragraph two of the syllabus.January Term, 2019

5 {¶ 12} As we have stated, the Brownes’ c omplaint alleged that the leas e expired due to lack of production of oil and gas from the lease ’s inception until 1999. The trial court, however, did not address that claim; be cause it determined that a 15-year statute of limitations applied, the trial court held that any lack of production prior to 1999 was irrelevant. {¶ 13} Having concluded that lack of production prior to 1999 was irrelevant, the trial court—with respect to both the Brownes’ c laims and the counterclaim—considered only the evidence of production, or lac k thereof, from 1999 onward. With respect to the time period beginning in 1999 , the trial court held, on reconsideration, that th e Brownes “have not presented any evidence to satisfy their burden” of proving that the wells are no longer p rofitable. But the trial court’s entry of judgment for a ppellees on their counterclaim d epends on its determination that the 15-year statute of limitations rendered pre-1999 lack of production irrelevant. Had the trial court determined that any of the years prior to 1999 remained in play, it would ha ve had to consider whether th ere was, in fact, consistent production during those years. The trial court did not do that. {¶ 14} Even accepting as true the disse nt’s position that the Fifth Di strict’s rulings regarding the burden of proof and the evidence that may establish production of oil and gas are the law of the case, nothing in t he court of appeals’
decision renders our determinati on of the applicable statute of limitations advisory. {¶ 15} The court of appeals affirmed t he trial court’s holding that th e Brownes had “the burden to prove that the wells are no longer p rofitable.” 2018- Ohio-3746, 116 N.E.3d 687, ¶ 35. The trial court’s holding, ho wever, did not address whether the Brownes presented evidence of lack of produ ction prior to 1999, because the court held that any lack of production before 1999 was irrelevant. In reviewing the trial court’s holding regarding the burden of proof, the court of appeals applied the accepted sta ndards applicable to summary ju dgment under Civ.R. 56 and merely concluded that the Brownes bore, but did n ot meet, theS UPREME C OURT OF O HIO

6 reciprocal burden of producing e vidence to rebut appellees’ evi dence of “continued production” from the well. Id. at ¶ 34. Like the trial court, the court of appeals did not address the Brownes’ ability to prove that the well went ou t of production prior
to 1999. {¶ 16} In response to appellees’ motion for summary judgment, the Brownes argued that appellees had not met their initial burden with respect to production prior to 1999. If that were true, then the Brownes were not required to meet a reciprocal burden to avoid summary judgment—even though they would
have the burden of proof at trial. See AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 553 N.E.2d 597 (1990), paragraph two of the syllabus (“Regardless of who may have the burden of proof at trial, the burden is upon the party moving for summary judgment to establi sh that there is no genuine issue of material fact and that he is entitled to judgm ent as a matter of law”). {¶ 17} Neither the trial court nor the c ourt of appeals analyzed the e vidence regarding pre-1999 production or lack of production, as both co urts considered that question irrelevant in light of the 15-year statute of limitati ons. The dissenting opinion erroneously states that t he trial court found that the Brownes had “failed to present any evidence that the well on their property ever faile d to produce oil or gas in paying quantities.” Dissentin g opinion at ¶ 63. The trial court found only that the Brownes had failed to satisfy their burden of proving that “the wells are no longer profitable.” (Emphasi s added.) That finding regarding current profitability does not relate to pre-1999 production or lack of production. Thus, the court of appeals’ holding regarding the burden of proof, even if the law of the case, does not decide this case if the 15-y ear limitations period does not barconsideration of pre1999 production or lack of production, when neither lower court has analyzed the Brownes’ claim that the lease expired by its terms for lack of production prior to
1999.January Term, 2019

7 {¶ 18} Although the dissenting opinion conducts a review of the pre-19 99 evidence and decides that appellees met their initial burden an d that the Brownes failed to meet their reciprocal b urden to demonstrate a genuine issue of material fact, the better practice is to allow the trial court to analyz e the evidence in the first
instance. An oil and gas lease creates in the lessee a vested property interest {¶ 19} We turn now to the question this court accepted: Which statute of limitations applies? In determining which limitations period a pplies, we “look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors,
the form is immaterial.” Hambleton v. R.G. Barry Corp ., 12 Ohio St.3d 179, 183, 465 N.E.2d 1298 (1984). And in order to determine the nature o f this case, we briefly consider our recent precedent regarding the characteriz ation of subsurface
minerals and the nature of oil and gas leases in Ohio. {¶ 20} Ohio, like a majority of states, recognizes that minerals under lying the surface of real property are part of the realty but may be severed from the surface estate for purposes of separate ownership. Chesapeake Exploration, L.L.C. v.
Buell , 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, ¶ 21-22. Indeed, the Marketable Title Act, as amended in 1973, Am.S.B. No. 267, 135 Ohio Laws, Part I, 942-943, and the Dormant Mineral Act, 1989 Sub.S.B. No. 223, 142 Ohio Laws, Part I, 981, were enacted partly in response to the common-law rule that severed mineral rights were not subject to abandonment or termination f or the failure to produce oil or gas. Corban v. Chesapeake Exploration, L.L.C. , 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, ¶ 15, 17-19 (lead opinion). {¶ 21} The owner of a mineral estate, w hether or not also the owner of the surface estate, may convey the r ights to the subsurface mineral s through an oil and gas lease. Buell at ¶ 24. The oil and gas lease provides a mechanism by which a nS UPREME C OURT OF O HIO

8 owner of a mineral estate can permit others to explore and expl oit the land’s mineral resources in exchange for ro yalties and other consideration. Id. at ¶ 17. {¶ 22} Although oil and gas leases “ ‘straddle the line between proper ty and contract,’ ” id. at ¶ 41, quoting Keeling & Gillespie, The First Marketable Product
Doctrine: Just What is the “Product”? , 37 St. Mary’s L.J. 1, 6 (2005), Ohio is in line with the general consensus a mong the states that an oil an d gas lease creates a real-property interest, id. at ¶ 42-43, 49; see also R.C. 5301.09, 2014 Sub.H.B. No. 9 (effective Mar. 23, 2015) (recognizing that oil and gas lease s “create an interest in real estate”). {¶ 23} In describing the property interest created by an oil and gas l ease, we have acknowledged that the lease affects the possession and cus tody of both the
mineral and surface estates. Buell at ¶ 60. During the term of the lease, “the lessor effectively relinquishes his or he r ownership interest in the o il and gas underlying the property in favor of the lessee’s exclusive right to those resources.” Id. at ¶ 62. The lessee also enjoys reasonable use of the surface estate to accomplish the purposes of the lease. Id. at ¶ 60. Based on the vested nature of the grant, “the oil and gas lease has been construed as transferring to the lessee a fee simple determinable in the mineral estate with a reversionary interest retained by the lessor that can be triggered by events or conditions specified in the lease.” Id. at ¶ 61, citing Harris v. Ohio Oil Co. , 57 Ohio St. 118, 129-130, 48 N.E. 502 (1897). {¶ 24} As the lease here exemplifies, the term of an oil and gas lease is typically defined by a habendum c lause that sets out a primary fixed term, followed by a secondary term that extends the lessee’s rights under the lease on satisfaction
of certain described conditions , such as production of oil and gas in paying quantities. Buell , 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, at ¶ 77. If the conditions of the secondary term are not met, the lease ter minates by its express terms and by operation of law and the mineral estate revests in the lessor. Id . UponJanuary Term, 2019

9 expiration of the lease, the less ee loses his status as lessee by virtue of the terms of the agreement. Id. at ¶ 73. {¶ 25} Although termination of a lease pursuant to a habendum clause occurs by operation of law, there is no record notice on the ch ain of title that the mineral rights have reverted to the lessor unless the lessee ta kes the additional step of recording a formal release. Id. at ¶ 75. In the absence of a formal release, a lessor may “need to resort to the courts to obtain complete rel ief, i.e. cancellation
of the lease of record and remova l of the cloud from the title. ” Rudolph v. Viking Internatl. Resources Co., Inc. , 2017-Ohio-7369, 84 N.E.3d 1066 (4th Dist.), ¶ 41, citing Summers, Oil & Gas , Section 19:1 (3d Ed.2016). That is what the Brownes seek here—a judicial declaration that the lease terminated by i ts own terms due to lack of production and that the mineral estate reverted to the Brownes or to their predecessors in interest by operation of law. {¶ 26} The dissenting opinion fa ults our reliance on Buell based on its
characterization of the discussi on in that case of the property interests implicated by oil and gas leases as dicta. The author of the dissenting o pinion took a similar position in Buell itself but did not garner any other votes for that position. See Buell at ¶ 96 (Kennedy, J., concurring in the answers to the certifie d questions and concurring in the opinion in part). Here, as in Buell , the author contends that this
court in Buell should have answered the certifie d question—whether a recorded oil and gas lease affects title to an interest in land and is a “ti tle transaction” for purposes of the Dormant Mineral Act—but should have gone no fur ther. An
examination of the nature of oil and gas leases, however, was a necessary predicate to answering the cer tified question. We stated, “Answering the certified questions requires an interpretation of the term ‘title transaction’ unde r the Dormant Mineral
Act as well as a review of the nature of a r ecorded oil and gas lease under Ohio
law .” (Emphasis added.) Id. at ¶ 29.S UPREME C OURT OF O HIO

10 {¶ 27} While we acknowledged in Buell that the precise “nature of the instrument” was not “a dispute presented to us for resolution,” 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, at ¶ 65, fn. 5, our discussion o f the nature of oil and gas leases more generally was necessary to our determinatio n that a recorded oil and gas lease “constitutes a title transaction because it a ffects title to the surface and mineral owners’ interests in land,” id. at ¶ 66. But even if that discussion was dicta, as the dissent in this case suggests, we may nevertheles s rely on it as persuasive authority, see, e.g., Humphrey’s Exr. v. United States , 295 U.S. 602, 627, 55 S.Ct. 869, 79 L.Ed. 1611 (1935) (dicta “may be followed if sufficiently persuasive,” even though it is not controlling); State ex rel. Baur v. Medina Cty. Bd. of Elections , 90 Ohio St.3d 165, 168, 736 N.E.2d 1 (2000) (disapproving of a party’s reliance on dicta not simply because it was dicta but a lso because it was not supported by persuasive authority and was contrary to the court ’s holding in the case in which it appeared). Our analysis in Buell is supported by persuasive authority, and this court’s discussion of the nature of oil and gas leases under Ohio law flows from long-standing pr ecedent of this court, including particularly Harris , 57 Ohio St. 118, 48 N.E. 502. Reliance on Buell is warranted. {¶ 28} Bearing in mind the nature of oil and gas leases as set out in Buell
and Harris , we now consider which statute of limitations applies to the B rownes’
claims. The Brownes’ claims are not exempt from application of a statute of limitations {¶ 29} Contrary to their own proposition of law, which states that the 21- year statute of limitations in R. C. 2305.04 applies to their cl aims, the Brownes alternatively argue in their merit brief that no statute of limitati ons should apply to
their claims. {¶ 30} The Fourth and Seventh District Courts of Appeals have rejected the argument that a claim to declare that an oil and gas lease term inated by its ownJanuary Term, 2019

11 terms is not subject to any statute of limitations. See Rudolph , 2017-Ohio-7369, 84 N.E.3d 1066, at ¶ 53 (4th Dist.) (any suggestion that “there is no statute of limitation on actions to declare a lease has terminated by its own terms i s incorrect”); Potts v. Unglaciated Industries, Inc. , 2016-Ohio-8559, 77 N.E.3d 415, ¶ 101 (7th Dist.) (“The fact an act or omission is alleged to have occurred, whic h would cause a lease to expire automatically and b y operation of law, does not elimi nate the application of a specific statute of limitations”). We agree with those co urts and reject the Brownes’ alternative argument. {¶ 31} An action for a declaratory judgment is a civil action. Renee v.
Sanders , 160 Ohio St. 279, 116 N.E.2d 420 (1953), paragraph one of the syllabus. “[U]nless a different limitation is prescribed by a statute, a civil action may be commenced only within the period prescribed in sections 2305.04 to 2305.22 of the Revised Code.” R.C. 2305.03( A). R.C. 2305.04 through 2305.131 set out statutes of limitations that apply to specific types of claims. R.C. 23 05.14 creates a catchall limitations period of ten years for those causes of action that do not fall within any of the types of claims specified in the other statutes. Throug h R.C. 2305.03(A) and the catchall limitations period in R.C. 2305.14, the General As sembly has instructed that any civil action is subj ect to a statute of limitations. {¶ 32} Statutes of limitations serve several important purposes. They ensure fairness to the defendant; encourage prompt prosecution of causes of action; suppress stale and fraudulent c laims; and avoid inconveniences caused by delay, including the difficulties of proof in older cases. Doe v. Archdioces e of Cincinnati , 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 10. Diff iculty of proof in older cases is an especially apt consideration in the context o f oil and gas leases, which can continue, upon production of oil and gas, for many de cades. For example, Potts , 2016-Ohio-8559, 77 N.E.3d 415, involved an oil and gas lease
executed and recorded in 1896 a nd a claim to quiet title filed 117 years later, in 2013. The Seventh District reject ed the arguments that no stat ute of limitationsS UPREME C OURT OF O HIO

12 applied and that the defendant-l essee was required to prove pro duction for the entire 112-year secondary term of the lease. Id. at ¶ 113-115. The court stated, “The entire purpose behind a statute of limitations is to eliminate the burden a stale claim puts upon a party and to recognize evidence is unlikely to exis t on events occurring in the distant past.” Id. at ¶ 112. {¶ 33} Because the General Assembly has instructed that civil actions are subject to a statute of limitations and because application of a statute of limitations to claims arising out of the alleged ter mination of an oil and gas lease is consistent with the purposes of statutes of limitations in general, we rej ect the Brownes’ argument that their claims are exempt from application of any s tatute of limitations. R.C. 2305.041 does not apply to the Brownes’ claims {¶ 34} In its determination of the a ppropriate limitations period, the Fifth
District looked to R.C . 2305.041, which states:

With respect to a lease or license by which a right is granted to operate or to sink or drill wells on land in this state for natural gas or petroleum and that is recorded in accordance with section 5301.09 of the Revised Code, an action alleging breach of any express or implied provision of th e lease or license concerning the calculation or payment of royalties shall be brought within the time period [for commencement of an action for breach of a contract of sale] that is specified in section 1302.98 of the Revised Code. An action alleging a breach with respect to any other issue that the
lease or license involves shall be brought within the time period [for commencement of an action upon a written contract] specified in
section 2305.06 of the Revised Code.January Term, 2019

13 (Emphasis added.) The court of appeals applied R.C. 2305.041 a nd stated, “[b]ecause this case involves an issue other than the calculati on or payment of royalties,” the 15-year limitations period in former R.C. 2305. 06 1 applies to the
Brownes’ claims. 2018-Ohio -3746, 116 N.E.3d 687, at ¶ 24-25. {¶ 35} R.C. 2305.041 establishes limitations periods for two types of claims involving oil and gas leases: (1) actions alleging breach of an express or implied lease provision concerning the calculation or payment of royalt ies and (2) actions alleging a breach with respect to any other issue involving the lease. Both types of actions involve allegations of a breach. And as oil and gas le ases are contracts, Lutz v. Chesapeake Appalachia, L.L.C. , 148 Ohio St.3d 524, 2016-Ohio-7549, 71 N.E.3d 1010, ¶ 9, both types of actions governed by R.C. 2305.041 involve
breaches of contract. A “breach o f contract” occurs upon a “[v ]iolation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance.” Black’s Law Dictionary 232 (11th Ed.2019). {¶ 36} The Brownes’ complaint state s that appellees and/or their predecessors in interest “breached the express provision of the Lease requiring” the production of oil or gas “to con tinue the existence of the Leas e.” But despite the Brownes’ use of the word “breach,” the lease did not impose a c ontractual obligation upon the lessee to produce oil or gas. Nor did it a fford the lessor a contractual remedy for a less ee’s failure to do so. It instead merely provided for
termination of the lease if afte r the expiration of the lease’s primary term oil or gas was not produced from the leased premises. The Brownes do not seek damages for breach of contract; they seek a declaration that the lease term inated by its terms due

1. In 2012, the General Assembly shortened the limitations peri od in R.C. 2305.06 for commencement of “an action upon a specialty or an agreement, co ntract, or promise in writing” to eight years, 2012 Sub.S.B. No. 224, but appellees agree that, i f applicable at all, the former version of R.C. 2305.06, H.B. 152 at 3569, with its 15-year limitations period, would apply here.S UPREME C OURT OF O HIO

14 to lack of production, an order quieting title to their propert y, and damages for conversion and unjust enrichment. {¶ 37} Courts in other states have refused to recognize or impose any obligation on a lessee to maintain a lease under the terms of a habendum clause. See Miami Oil Producers, Inc. v. Larson , 203 Mont. 225, 232, 661 P.2d 1260 (1983) (lease provided that it w ould terminate if drilling or r eworking operations did not resume within 90 days a fter cessation of production fol lowing the primary term; lessee was not obligated to extend the lease by resumptio n of operations); Lynch v. S. Coast Drilling Co., Inc. , 442 S.W.2d 804, 807 (Tex.Civ.App.1969) (limitation that extended the lease only as long as oil and gas were produced “impose[d] no obligation on lessees to perform any duty”); San Mateo Community College Dist. v. Half Moon Bay Ltd. Partnership , 65 Cal.App.4th 401, 410, 76 Cal.Rptr.2d 287 (1998) (te rmination of lease for failure to con tinue producing in paying quantities “d[id] not constitute a forfeiture for breach of a lease covenant”). {¶ 38} The crux of the Brownes’ claims is that the lessees’ alleged fa ilure to produce oil or gas from the well resulted in the lease’s ter mination pursuant to
the habendum clause. As we held in Buell , an oil and gas lease terminates by its express terms and by operation of law and the mineral estate re vests in the lessor if the conditions of the secondary term are not met. 144 Ohio St. 3d 490, 2015-Ohio4551, 45 N.E.3d 185, at ¶ 77. Termination of a lease pursuant to its habendum
clause is not the result of a breach of the lease when nothing in the lease obligates
the lessee to maintain the leas e into the secondary term or for any period of time once the secondary term commen ces. Because the Brownes’ claims do not arise
out of a breach of the lea se, R.C. 2305.041 does not apply.January Term, 2019

15 R.C. 2305.04’s statute of limitations for claims to recover title to or possession of real property, and not R.C. 2305.06’s statut e of limitations for claims upon a written agreement, applies {¶ 39} Appellees argue that the Brownes’ claims, even if they do not f all within the scope of R.C. 2305.041, are governed by the 15-year limitations period in former R.C. 2305.06, H.B. 152 at 3569, which applies to any “action upon a specialty or an agreement, contract, or promise in writing” and is not limited to actions alleging a breach. The Brownes, on the other hand, arg ue that the automatic termination of an oil and gas lease by its terms, due to cessat ion of production, implicates only property interest s and does not present a contr actual dispute. They argue that if any statute of limitations applies, it is the 21- year statute of limitations in R.C. 2305.04 for “[a]n action to recover the title to or pos session of real property.” {¶ 40} Consistent with the Brownes’ argument, the Fourth District Cour t of Appeals has held that a claim fo r a declaratory judgment that a n oil and gas lease terminated by its own terms is not a contract claim but an acti on to quiet title. Rudolph , 2017-Ohio-7369, 84 N.E.3d 1066, at ¶ 3, 44-45. In Rudolph , the subject well did not produce for four years, from 1998 through 2001, an d the court of appeals held that the lease expired by its own terms in Decembe r 1999, after two years of nonproduction. Id. at ¶ 39. To determine the appropriate statute of limitations for Rudolph’s declarator y-judgment claim, the court looked to the underlying nature or subject matte r of the claim. It stated th at a lessee’s failure to maintain a lease by production in paying quantities does not ne cessarily give rise
to a cause of action for breach of the lease. Id. at ¶ 43. The court explained that if, for example, production had ceased because the lessee had made a good-faith
determination that it was not economically reasonable to commer cially operate the
well or because the well had beco me depleted, then there was no breach. Id . Based in part on this court’s discussion in Buell of the nature of oil and gas leases and theS UPREME C OURT OF O HIO

16 property interests they create, the Fourth District held that Rudolph’s declaratoryjudgment claim was not an action on contract but was more akin to a quiet-title action, and the court applied the 21-year statute of limitation s for recovery of real property under R.C. 2305.04. Rudolph at ¶ 44-46. See also Cox v. Kimble , 5th Dist. Guernsey No. 13 CA 32, 2015-Ohio-2470, ¶ 57-66 (suggestin g, without expressly holding, that an action for a declaratory judgment th at an oil and gas lease expired by its terms is subject to the 21-year statute of limit ations in R.C. 2305.04). {¶ 41} We agree with the Fourth District’s holding in Rudolph that an action to recognize the reversion of min eral interests following the a lleged termination of an oil and gas lease pursuant to its express terms is not an ac tion upon a written contract; it is more aki n to a quiet-title action. {¶ 42} The court of appeals here erroneously held that the nature or s ubject matter of the Brownes’ claims was “a dispute over the written t erms of the lease agreement.” 2018-Ohio-3746, 116 N.E.3d 687, at ¶ 22. As we st ated previously, the lease did not impose a cont ractual obligation upon the less ee to produce oil or gas. And the parties do not dispute either the terms of the le ase or the meaning of those terms; they dispute only wh ether there was a period of no nproduction that terminated the lease by operation of law. Like the plaintiff i n Rudolph , the Brownes seek recognition of their reversionary interest in the minerals , which themselves constitute part of the realty. We therefore hold that the Brow nes’ claims are governed by the 21-year statute of limitations in R.C. 2305.04.
We do not decide when the Brownes’ claims accrued {¶ 43} Beyond correctly stating that R.C. 2305.04 is the applicable st atute of limitations, the Brownes’ pr oposition of law states that the limitations period does not begin to run until a justiciable controversy arises. R.C. 2305.04 states that the time for bringing an action is measured from when the cause of action accrued. {¶ 44} Justiciability is a threshold requirement for a declaratory jud gment.
Arnott v. Arnott , 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 10. “[ I]nJanuary Term, 2019

17 order for a justiciable question to exist, ‘ “[t]he danger or d ilemma of the plaintiff must be present, not contingent on the happening of hypothetica l future events * * * and the threat to his position must be actual and genuine and not merely possible or remote.” ’ ” Mid-American Fire & Cas. Co. v. Heasley , 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9, quoting League for Preservation of Civ. Rights v. Cincinnati , 64 Ohio App. 195, 197, 28 N.E.2d 660 (1st Dist.1940), quoting Borchard, Declaratory Judgments , 40 (1934). {¶ 45} To the extent the Brownes asse rt the legal principle that a declaratory-judgment claim accrues only when there is a justici able controversy that can be addressed through declaratory judgment, we agree. But the Brownes
further ask this court to determine when their claims accrued a nd when the statute of limitations began to run. They maintain that a justiciable controversy arose— and that their cause of action accrued—only when they realized that there was a dispute over the lease’s continued validity. And they argue th at lessees’ resumption of production following the allege d termination did not give ri se to a justiciable controversy. But the Brownes did not raise that issue in the c ourt of appeals, and
neither the trial court nor the c ourt of appeals considered or determined when the Brownes’ cause of action to recover title to real property accr ued, so as to begin the limitations period. We therefore decline to address that quest ion for the first time on appeal. See Independence v. Office of the Cuyahoga Cty. Executive , 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶ 30 (“an appellant generally may not raise an argument on appeal that the appellant has not raised i n the lower courts”).
Conclusion {¶ 46} We hold that the 21-year limitations period in R.C. 2305.04 app lies to a claim for a declaratory judgment that an oil and gas lease has expired by its own terms for lack of production. In light of the applicable s tatute of limitations, and contrary to the trial court’ s statement, evidence of lack o f production prior to
1999 is not irrelevant. We theref ore reverse the Fifth Distric t’s judgment andS UPREME C OURT OF O HIO

18 remand this matter to the trial court to evaluate the parties’ claims in light of the
correct statute of limitations. Judgment reversed
and cause remanded.
O’C ONNOR , C.J., and F ISCHER and D E W INE , JJ., concur.
K ENNEDY , J., dissents, with an opinion joined by S TEWART , J.
D ONNELLY , J., dissents and would dismi ss the appeal as improvidently accepted.

_________________ K

ENNEDY , J., dissenting. {¶ 47} By accepting only the proposition of law related to the statute of limitations, this court rendered the appellants’ appeal moot. As I explain below, regardless of this court’s ruling on the statute-of-limitations issue, the ultimate judgment will be the same—summary judgment in favor of the oil companies (because under the law-of-the-case doctrine, the court of appea ls’ rulings on the issues that were not accepted for review by this court will rem ain in place on remand). Accordingly, I would dismiss this appeal as moot. {¶ 48} I disagree with the majority’s analysis for three reasons. Fir st, deciding today which statute of limitations applies to an actio n seeking a declaration that an oil and ga s lease has expired cannot affect the outcome of this case; regardless of the statute of limitations applied, the app ellants, Barry L. and Rosa R. Browne, have not produced sufficient evidence to show t hat there is a genuine question whether the well on their property ever went o ut of production, which would have caused the lease to expire by operation of law . Second, in holding that the 21-year statute of limitations for actions to recover title to real property applies to litigation seeking to quiet title after an oil and gas lease has expired, the majority amplifies dicta in Chesapeake Exploration, L.L.C. v. Buell , 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, misconstruin g Ohio law andJanuary Term, 2019

19 improperly classifying the prope rty interest created by an oil and gas lease. Third, in determining that a statute of limitations applies in a quiet -title action brought to declare that a lease expired unde r its terms, the majority mudd les the law of oil and gas by requiring judicial action to terminate a lease when it i s well established in our caselaw that when a lease expires, it terminates automatica lly and by operation of law; a lawsuit is not needed f or the landowner to regain his or her property rights to oil and gas. {¶ 49} For these reasons, I dissent. Facts and Procedural History {¶ 50} The Brownes own land in Guernsey County encumbered by an oil and gas lease that was signed by one of their predecessors-in-i nterest and recorded in 1976. The lease provided for a one-year primary term and a secondary term for as “long thereafter as oil and gas, or either of them, is produ ced by lessee from said
land.” One well has be en drilled on the property. {¶ 51} In 2014, the Brownes sued appellees, Artex Oil Company, Artex Energy Group, L.L.C., Arloma Corporation, and James Huck, L.L.C . (collectively, “Artex”), seeking to quiet title to the oil and gas rights and requesting a declaratory judgment that the lease is no longer in effect as well as damag es for conversion of oil and gas and a remedy for unj ust enrichment. Specifically, they alleged that the lease had expired due to the lack of production of oil or gas f rom the lease’s inception until at least 1999. Artex counterclaimed, alleging that there had been continuous production of oil since 1977 and seeking a declarato ry judgment that
the lease remained in effect. {¶ 52} Artex moved for summary judgment, arguing that the Brownes bore the burden to prove that the we ll had gone out of production an d that their reliance on a lack of affirmative evidence—in the form of production rep orts and receipts— that the well had produced oil and gas did not satisfy their bu rden. Artex pointed
to evidence from James Vernon Pa tterson, a prior owner of the p roperty, whoS UPREME C OURT OF O HIO

20 averred that the well had rema ined in continuous production fro m its completion until he sold the property in 2000. Artex also presented the a ffidavits of two of its former well pumpers, stating that the well had remained in prod uction since 1999. These men explained that oil was produced and stored in tanks u ntil sufficient quantities accumulated for sale and the weather permitted the n ecessary access to the tanks. According to Artex, although oil sales took place o nly when sufficient
oil had accumulated in the stora ge tank, production occurred th roughout the life of
the well. {¶ 53} In response, the Brownes maintaine d that it was Artex that bore the burden to prove that the lease remained in effect by producing evidence showing that the well had produced oil or gas continuously since it was built. The Brownes relied on evidence that Artex’s predecessors-in-interest had fa iled to report any production from the well to the O hio Department of Natural Reso urces (“ODNR”) until 1999 and that Artex itself reported no production for the years 2002, 2005, and 2008. The Brownes also asserted that the only receipts Art ex had produced showing that oil from the well had been collected and sold were six run tickets, and those run tickets show the sale of oil only from 2009 through 2 013. Lastly, they pointed to a graph, created by Artex’s predecessor-in-interest and provided in discovery, showing actual production only during the first four years of the well’s existence; the Brownes noted tha t “[a]lthough the graph is date d through 1996,
there is no indication of production after 1980.” {¶ 54} After initially denying Artex’s motion for summary judgment, th e trial court reconsidered, entered summary judgment for Artex, a nd dismissed the Brownes’ claims. Although the trial court stated that the Brow nes bore “the burden to prove that the well[ is] no longer profitable,” it is manife st that the focus of the case remained on whether the well on the Brownes’ property had ever gone out of production. The trial court found they had “not presented any evidence to satisfy their burden” while Artex had “presented significant evidence t hat the well has beenJanuary Term, 2019

21 producing in paying quantities.” I t determined that “the absen ce of an ODNR report does not mean that a well did not produce,” and it expla ined that Artex’s “production records and affidavits can be used to show that the Well has been producing.” Lastly, the court he ld that a 15-year statute of l imitations applied to the Brownes’ claims, and it indicated that “any lack of product ion prior to 1999
would be irrelevant.” {¶ 55} The Fifth District Court of Appeal s affirmed the summary judgme nt in favor of Artex, holding that pursuant to R.C. 2305.041, the 15-year statute of limitations for an action upon a wr itten contract set forth in former R.C. 2305.06, Am.Sub.H.B. No. 152, 145 Ohio Laws, Part II, 3341, 3569, applie d to the Brownes’ attempts to terminate the lease for nonproduction, that the Bro wnes bore the burden of proving that the lease had terminated for nonproduction, and that Artex could present production records and affi davits (rather than run tick ets or receipts for the “legal tender of oil”) to pr ove continued production. 2018-Ohi o-3746, 116 N.E.3d 687, ¶ 25, 35, 38, 41. It also explained that the trial court had not erroneously focused on profitability rather than production; the court of a ppeals pointed out that
the trial court made several fi ndings regarding production, and therefore, the court of appeals concluded, “the trial court did not determine [that the Brownes’] issue was one of profitabilit y as opposed to production.” Id . at ¶ 44-47. The Majority Opinion Is Advisory {¶ 56} This court accepted the Brownes’ first proposition of law for r eview: “In an action to declare that an oil and gas lease has terminat ed under its own terms for lack of production in paying quantities, the applicable sta tute of limitations is 21 years, per Ohio Revised Code § 2305.04, and does not begin t o run until a ‘justiciable controversy’ arises.” See 153 Ohio St.3d 1485, 2018-Ohio-3867, 108
N.E.3d 82. {¶ 57} However, in accepting the Brownes’ appeal on only one of the propositions of law they raised, this court declined review ove r four otherS UPREME C OURT OF O HIO

22 propositions that addressed dis positive rulings of the court of appeals. Proposition of law No. 2 stated, “A cessati on of commercial production of o il or gas, generally for two years or more, will cause an oil and gas lease to autom atically terminate
under the terms of its habendum c lause.” Proposition of law No . 3 contended, “In order to perpetuate an oil and gas lease under its habendum cla use, there must exist objective and verifiable evidence of the commercial sale of oil or gas.” Proposition
of law No. 4 m aintained, “Evidence of producti on, i.e., the mer e withdrawal of oil or gas from a well bore, is not the equivalent to evidence of ‘ production in paying quantities’ necessary to perpetua te an oil and gas lease under its habendum clause.” And proposition of law No. 5 urged, “In an action to declare th at an oil and gas lease has expired under its own terms for lack of production in paying quantities, the burden of proof is on the lessee.” {¶ 58} Because a majority of this cour t chose not to consider these propositions of law challenging the appellate court’s rulings r egarding the burden of proof and the evidence that may be used to establish the pro duction of oil and gas, these rulings will remain the law of the case on remand. As we explained in Giancola v. Azem , “a trial court is without authority to extend or vary the man date issued by a superior court, * * * and ‘where at a rehearing fol lowing remand a trial court is confronted with substantially the same facts and issue s as were involved in the prior appeal, the court is bound to adhere to the appellate court’s determination of the applicable law.’ ” 153 Ohio St.3d 594, 2018-Ohio-1694, 1 09 N.E.3d 1194, ¶ 16, quoting Nolan v. Nolan , 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). Although we generally view the law-of-the-case doctrine as a rule of pra ctice, the mandate rule is substantive; “the Ohio Constitution ‘does not grant to a court of common pleas jurisdiction to review a prior mandate of a court of appe als,’ ” State ex rel. Cordray v. Marshall , 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ¶ 32, quoting State ex rel. Potain v. Mathews , 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979).January Term, 2019

23 {¶ 59} This means that on remand, the trial court is required to leave the burden of production and persuasi on on the Brownes, and it is o bliged to enter judgment against them if they are not able to prove a negative— that is, if they are unable to provide sufficient evidence to show that there is a g enuine question whether the lease expired because the well on their property di d not produce oil or gas for a sufficient period of time. And because the majority determines only that the trial court erred in failing to consider evidence of lack o f production prior to 1999, any claim that the well went out of production at any tim e after that time is beyond the scope of the trial court’s review. {¶ 60} The Brownes’ theory of recovery w as premised on their assertion
that there was no evidence that the well had remained in contin uous production,
and their claim that the lease had expired hinged on Artex’s be aring the burden of proving the continued production of oil or gas since the comple tion of the well. The allocation of the burden of p roof therefore decides this ca se. And because it is
the law of the case that the Brownes bear the burden of proof, they cannot succeed in this litigation regardless of the majority’s determination t hat the 21-year statute of limitations for actions to recover title to real property ap plies to their declaratoryjudgment action. Because a su mmary judgment in favor of Artex is inescapable on remand, determining what statu te of limitations controls does n ot affect the
outcome of this case. {¶ 61} But even if this appeal were not moot, there would still be no need
to decide the statute-of-limitations issue. This case comes to the court on appeal from a summary judgment in favor of Artex. Our review is there fore de novo, and
we must “consider the evidence as if for the first time.” Argabrite v. Neer , 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 14. For this reason, we must conduct our own examination of the record, Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 360, 604 N.E.2d 138 (1992), independently and withou t deference to the lower court’s determination, Johnson v. Am. Italian Golf Assn. of Columbus , 2018-S UPREME C OURT OF O HIO

24 Ohio-2100, 113 N.E.3d 1144, ¶ 13 (10th Dist.) ; see also Bonacorsi v. Wheeling & Lake Erie Ry. Co ., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24 (in reviewing summary-judgment rulings, “we apply the same standard as the trial court and court of appeals”). F urther, an appellate court revi ews the inferior court’s judgment, not its reasoning, and “[w]e have ‘consistently held that a reviewing court is not authorized to reverse a correct judgment merely be cause erroneous reasons were assigned as the basis thereof,” Salloum v. Falkowski , 151 Ohio St.3d 531, 2017-Ohio-8722, 90 N.E.3d 918, ¶ 12, quoting Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990). {¶ 62} The trial and appellate courts co rrectly ruled that the Brownes ’ claim
cannot survive Artex’s motion fo r summary judgment. Artex not only argued that the Brownes lack any evidence to meet their burden to demonstra te that the well ever went out of production, but also it presented the affidavi t of the Brownes’ predecessor-in-interest, who a verred based on personal knowledg e that oil and gas had been produced from the well “on a continuing basis” from th e time the well was completed until the time tha t he sold the property in 2000. He also stated that the gas that was produced was not sold but had been used by the landowner. Artex therefore met its initial burden in moving for summary judgment to demonstrate that there is no genuine issue of material fact and that the Br ownes cannot prove that the well on their property went out of production prior to 1999. See Vahila v.
Hall , 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997) (explaining th at the party moving for summary judgment bears the initial burden to inform the court of the basis for the motion and to identify the parts of the record th at demonstrate the absence of a genuine issue of material fact on the essential el ements of the nonmoving party’s claims). {¶ 63} The burden of going forward with e vidence therefore shifted to the Brownes, who needed to present sufficient evidence to establish that there was a genuine issue of fact remaining f or trial regarding whether the well in fact had goneJanuary Term, 2019

25 out of production. Civ.R. 56(E); Deutsche Bank Natl. Trust Co. v. Holden , 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d 1243, ¶ 34. However, the Brownes
failed to meet this burden. As they admitted in their response to Artex’s motion for summary judgment, “[t]he only evidence that has been offered th us far is the absence of reporting during the s tatutory reporting period that started in 1984 through 1999.” However, the failu re to file production reports does not prove that a well was not producing oil or gas. Potts v. Unglaciated Industries, Inc. , 2016- Ohio-8559, 77 N.E.3d 415, ¶ 75 (7th Dist.); see also Holland v. Gas Ents. Co. , 4th Dist. Washington No. 15CA42, 2016-Ohio-4792, ¶ 28 (noting the d ifference between failing to file a produc tion report and reporting no pr oduction). The well summary on which the Brownes rely simply indicates that no prod uction reports were submitted to ODNR; it does not show that the well owner ev er reported no production (or zero barrels) of o il from the well. Therefore, the Brownes have simply failed to present any evidence that the well on their pr operty ever failed to produce oil or gas in paying qua ntities. And because the Brown es’ evidence is insufficient to create a genuine issue of material fact, summar y judgment in favor of Artex was appropriate. Todd Dev. Co., Inc. v. Morgan , 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 14. {¶ 64} For all of these reasons, deciding what statute of limitations, if any, applies to the Brownes’ action is unnecessary and contravenes “ our long-standing practice disfavor[ing] i ssuing advisory opinions,” Capital Care Network of Toledo v. Ohio Dept. of Health , 153 Ohio St.3d 362, 2018-Ohio-440, 106 N.E.3d 1209, ¶ 31, as well as “the ‘cardinal principle of judicial restraint —if it is not necessary to decide more, it is nece ssary not to decide more,’ ” State ex rel. LetOhioVote.org
v. Brunner , 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51, quo ting PDK Laboratories, Inc. v. United St ates Drug Enforcement Administration , 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part a nd concurring in judgment).S UPREME C OURT OF O HIO

26 The Majority Opinion Relies on Dicta {¶ 65} In determining that R.C. 2305.04, the statute of limitations fo r actions to recover title to real property, applies, the majorit y relies on Chesapeake Exploration, L.L.C. v. Buell for the statement that oil and gas “may be severed from the surface estate for purposes o f separate ownership.” Majori ty opinion at ¶ 20, citing Buell , 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, at ¶ 21-22 . It quotes Buell as suggesting that “ ‘the oil and gas lease has been construed as transferring to the lessee a fee simple determinable in the min eral estate with a reversionary interest retained by the lessor that can be trigge red by events or conditions specified in the leas e.’ ” Majority opinion at ¶ 23 , quoting Buell at ¶ 61. The majority then reasons:

[A]n action to recognize the reversion of mineral interests fol lowing the alleged termination of an oil and gas lease pursuant to its express terms is not an action upon a written contract; it is more akin to a quiet-title action.
* * * We therefore hold that the Brownes’ claims are governed by the 21-year statute of limitations in R.C. 2305.04.

Id. at ¶ 41-42. {¶ 66} The statements from Buell , however, are dicta. As the North American Coal Royalty Company and the Ohio Oil and Gas Associat ion argued in that case, it was “not necessary to address whether an oil and gas lease creates a particular property interest,” and as I noted in my opinion con curring in part, the majority’s addressing that issue without briefing and on the re cord available in that case “could have unintended nega tive consequences in the oil an d gas industry,”
Buell at ¶ 96 (Kennedy, J., concurring i n the answers to the certifi ed questions and concurring in the opinion in part).January Term, 2019

27 {¶ 67} The first question in Buell was whether a recorded oil and gas lease was a “title transaction,” i.e., whether a recorded oil and gas lease affects title to an interest in land, for pur poses of the Ohio Do rmant Mineral Act. Id . at ¶ 14, 29-32.
Buell correctly answered that question in the affirmative. We had a lready recognized that “an oil lease is an encumbrance,” Karas v. Brogan , 55 Ohio St.2d 128, 129, 378 N.E.2d 470 (1978), and a recorded lease puts a cl oud on record title— a title search would reveal the possibility that the lessee may claim rights under the recorded lease encumbering the property. The second question b efore the court in
Buell was whether mineral rights that had been reserved in a deed wer e saved from being deemed abandoned under the Do rmant Mineral Act by the unr ecorded expiration of a recorded lease of those rights to a third party

. Buell at ¶ 68. The simple answer was no, because the unrecorded expiration of a le ase does not affect record title—the expiration of the lease happened automatically by operation of law
and outside the chai n of recorded title. Id . at ¶ 75. {¶ 68} It was therefore unnecessary for this court in Buell to go further and decide the exact nature of the property interest, if any, that is transferred by an oil and gas lease, and the majority opinion in Buell acknowledged as much. It noted
that the nature of the instrumen t was not a dispute presented t o the court for resolution, id . at ¶ 65, fn. 5, but it assumed that the instrument was an oil and gas lease, id ., notwithstanding its recognition that the rights of the parti es to an oil and gas lease depend on the terms of the lease itself, id . at ¶ 48, 53. And then the court
admitted that the result would be the same even if the lease tr ansferred “something
less than a determinable fee.” Id . at ¶ 65. {¶ 69} The court’s statements in Buell that an oil and gas lease severs the mineral estate from the surface estate and creates a fee-simple -determinable interest in land were unnecessary and ther efore are obiter dicta, which has “no precedential force” in a later case, State ex rel. DiFranco v. S. Euclid , 138 Ohio St.3d 367, 2014- Ohio-538, 7 N.E.3d 1136, ¶ 24, superseded by statute on other g rounds, as statedS UPREME C OURT OF O HIO

28 in State ex rel. Cincinnati Enquirer v. Cincinnati , __ Ohio St.3d __, 2019-Ohio3876, __ N.E.3d __, ¶ 12; see also Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc. , 70 Ohio St.3d 281, 284, 638 N.E.2d 991 (1994) (explaining tha t dicta in a prior case had no binding effect on this court’s decision in a later case). {¶ 70} As Chief Justice Marshall wrote almost 200 years ago in Cohens v. Virginia : “It is a maxim not to be disregarded, that general expression s, in every opinion, are to be taken in connec tion with the case in which t hose expressions are used. If they go beyond the case, they may be respected, but o ught not to control the judgment in a subsequent su it when the very point is presen ted for decision.” 19 U.S. 264, 399, 5 L.Ed. 257 (1821). This is so because “ ‘[t ]he problem with dicta, and a good reason that it should not have the force of p recedent for later cases, is that when a holding is unnecessary to the outcome of a case, it may be made with less care and thoroughness than if it were crucial to the outco me.’ ” State v. Bodyke , 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 89 (O’Don nell, J., concurring in part and dissenting in part), quoting Bauer v. Garden City , 163 Mich.App. 562, 571, 414 N.W.2d 891 (1987). Today’s decision af fords dicta precedential value and ignores the wisdom of these fundamental tenets.
The Dicta in Buell Is Erroneous {¶ 71} The court in Buell acknowledged that there is a split of authority on the nature of the right conveyed by an oil and gas lease. Buell , 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, at ¶ 42. Some states, Texas, Pe nnsylvania, Mississippi, New Mexico, North Da kota, and Alabama, follow the ownership-inplace theory. 1 Brown, The Law of Oil and Gas Leases , Section 3.02(1) (2d Ed.2019). The ownership-in-place th eory applies the common-law rule applicable to solid minerals such as coal and recognizes that an oil and g as lease conveys an interest in land based on the p remise that oil and gas are subj ect to ownership, severance, and sale while s till embedded in the ground. Id . That is, the leaseJanuary Term, 2019

29 conveys the oil and gas itsel f while still in the ground, creat ing a determinable fee.
Cherokee Water Co. v. Forderhause , 641 S.W.2d 522, 525 (Tex.1982). {¶ 72} Other states—including Oklahom a, Kansas, Indiana, New York, Illinois, Arkansas, Kentucky, Montana, Wyoming, Tennessee, Wash ington, West Virginia, and California—follow the incorporeal-hereditament th eory, which is premised on the idea that oil and gas can move across property lines and therefore cannot be owned by the lessee until produced from the ground. 1 Brown, Section 3.02(2) and fn. 26. As the Supreme Court of Oklahoma has expla ined, an oil and gas lease “does not vest in [the lessee] the title to the oil a nd gas in said land, and is not a grant of any estate therein, but is simply a grant of a right to prospect for oil and gas, no title vesting until such substances are reduced to possession by extracting same from the earth—an incorporeal hereditament.” Kolachny v.
Galbreath , 1910 OK 229, 26 Okla. 772, 110 P. 902, 906. An incorporeal hereditament is an intangible right in land such as an easement

. Black’s Law Dictionary 842 (10th Ed.2014). {¶ 73} In Buell , the majority viewed the 1897 decision in Harris v. Ohio Oil
Co. , 57 Ohio St. 118, 48 N.E. 502 (1897), as adopting the ownershi p-in-place theory of oil and gas law, so that an oil and gas lease creates a fee-simpledeterminable interest in the lessee. Buell at ¶ 42-44, 61. The problem with that analysis, however, is that our precedent has long adopted the v iew that oil and gas in place remains the property of the landowner and becomes the property of the well owner only when it is p roduced. For example, in Harris , the court explained that oil and gas had remained the property of the landowne r after the expiration of
the lease. Id. at 128. Chief Justice Burket, who authored Harris , also wrote Kelly
v. Ohio Oil Co. , which held that “[p]etroleum oi l is a mineral, and while it i s in the earth it forms a part of the realty, and when it reaches a well , and is produced on the surface, it becomes personal property, and belongs to the o wner of the well.” 57 Ohio St. 317, 49 N.E. 399 (1897), paragraph one of the sylla bus. Therefore, oilS UPREME C OURT OF O HIO

30 and gas subject to an oil and gas lease remains the property of the lessor until it is produced. Nonamaker v. Amos , 73 Ohio St. 163, 170-171, 76 N.E. 949 (1905). {¶ 74} Buell correctly cited Kelly and Nonamaker as holding that oil and gas are part of the realty, Buell , 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, at ¶ 21, but omitted the second half of the holding in tho se cases, which is that oil and gas is not owned by the owner of the well until it is e xtracted from the ground. Buell then tried to distinguish our decision in Back v. Ohio Fuel Gas Co. , 160 Ohio St. 81, 113 N.E.2d 865 (1953), by focusing on the diff erence between the instruments at issue in those cases—according to Buell , Harris involved a lease,
while Back concerned a license. Buell at ¶ 44-47. {¶ 75} At issue in Back was whether filing an instrument conveying oil and gas rights with the records of leases instead of filing it with the records of deeds of conveyances gave a subsequent pur chaser of the property affecte d by the instrument constructive notice of the conveya nce of the oil and gas rights . To decide that question, the court had to deter mine the nature of the property rights conveyed by
the instrument. The court in Back acknowledged that there was authority for the position that oil and gas can be c onveyed or encumbered in the same manner as any other mineral estate. But Back explained that this view —the ownership-in-place theory—had been “ ‘severely criticized,’ ” and that in most sta tes, oil and gas in place cannot be conveyed separately from the land. Id. at 87, quoting 24 American Jurisprudence, Section 4, at 520. The court then cited Kelly and Nonamaker as supporting this view that oil and gas is not subject to separat e ownership from the realty until it is raised to the surface and produced from the well, at which point, it becomes the personal property of the well’s owner. Back held that because the oil and gas could not be conveyed separately from the realty, the i nstrument was not a deed of conveyance—it did not convey a fee-simple property inte rest—but rather
had to be recorded with t he leases and licenses.January Term, 2019

31 {¶ 76} Harris and Back shared a consistent view of the nature of the property right conveyed when a landowner leases oil and gas rig hts. It does not
matter that Harris characterized the instrument as a lease and Back characterized it
as a license. That is a false distinction that allowed Buell to justify disregarding the more recent holding in Back . Rather, the relevant analysis is whether a lease or license transfers ownership of oil and gas in place. And as Kelly , Nonamaker , and
Back demonstrate, Ohio has adopted t he incorporeal-hereditament the ory. This
means that the court’s dictum in Buell that an oil and gas lease transfers fee-simple ownership of oil and gas in place, subject to reverter, id. at ¶ 61, is erroneous. Instead, in Ohio, the property owner retains fee-simple ownersh ip of the oil and gas (and the rest of the realty) subject to an oil and gas lease an d the lessee obtains an
interest in the land to enter onto it, prospect for oil, drill wells, and produce oil and gas. This is an incorporeal hereditament known as a profit a p rendre (a license coupled with an interest, not a bare license), which involves a n interest in land that
affects title. See Boatman v. Lasley , 23 Ohio St. 614, 618-619 (1873) (profit a prendre confers “the right t o enter upon the la nds of another, and remove gravel or other materials therefrom” and “so far partakes of the nature o f an estate in the land itself, as to be treated as an inheritable and assignable inter est”). Or as the court
stated in Harris , the lessee obtains a limited estate, a “lease of the land” fo r the purpose of drilling for and producing oil. Id. , 57 Ohio St. at 129-130, 48 N.E. 502. It is a property right to enter on and work the land, not a fee -simple estate in the oil and gas. {¶ 77} Ohio’s adoption of the incorporea l-hereditament theory is legal ly and practically sound, because while it is in the ground, oil a nd gas can move across property lines and therefore cannot be bought and sold in fee s imple. A property owner has the right to use its l and “to secure and appropriate to its own use that which [comes] into its lands by percolation, or by flowing thro ugh unknown naturalS UPREME C OURT OF O HIO

32 underground channels.” Kelly , 57 Ohio St. at 329, 49 N.E. 399. As the court in Kelly explained:

Whatever gets into the well belongs to the owner of the well, n o matter where it came from. In such cases the well and its cont ents belong to the owner or lessee of the land, and no one can tell to a certainty from whence the oil, gas, or water which enters the w ell came, and no legal right as to the same can be established or enforced by an adjoining landow ner. The right to drill and pro duce oil on one’s own land is absolute, and cannot be supervised or controlled by a court or an adjoining landowner.

Id . at 327-328. {¶ 78} This is the “rule of capture,” which permits a property owner t o drill for and produce oil and gas from his or her own land even thoug h doing so may drain oil and gas from underground pools that are below a neigh bor’s property. Barnes v. Res. Energy Exploration , 2016-Ohio-4805, 68 N.E.3d 133, ¶ 29 (7th Dist.), citing Northwestern Ohio Natural Gas Co. v. Ullery, 68 Ohio St. 259, 272, 67 N.E. 494 (1903). But there is no mechanism in law allowing a property owner to grant fee-simple ownership of a neighbor’s real property (i. e., the oil and gas beneath it). Accordingly, an oil and gas lease gives the lesse e the right to use the lessor’s land to produce oil and gas from it, and the lessee ac quires title to the oil and gas only when it is brought to the surface. Viewing an oil and gas lease as creating fee-simple ownership fails to recognize the fugacious nature of oil and gas as well as the law of capture’s role in assigning title to oil and gas once they are produced. {¶ 79} The Marketable Title Act, as amended in 1973, Am.S.B. No. 267, 135 Ohio Laws, Part I, 942-943, and t he Dormant Mineral Act, 19 89 Sub.S.B. No.January Term, 2019

33 223, 142 Ohio Laws, Part I, 981, are irrelevant to determining the property interest created by an oil and gas lease . These acts were enacted to ad dress the problem of severed mineral interests (e.g., by reservation in a deed) that went long unused but clouded the title to property and prevented landowners from mak ing productive use of oil and gas under their property. Corban v. Chesapeake Exploration, L.L.C. , 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, ¶ 17-19 (lead o pinion). Mineral rights had been “fractionalized through devise, descent, and co nveyance,” id . at ¶ 16, but under common law, they “were not subject to abandonme nt or termination for the failure to produce oil or gas or to extract other miner als,” id. at ¶ 15. In contrast, oil and gas leases typically include conditions under which the lease will expire; for example, a condition might be that the lease will c ease upon “the permanent abandonment, lack of production, or the exhaustion of oil and gas resources on the property.” Buell , 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, at ¶ 77-78. Neither the Marke table Title Act nor the Dorm ant Mineral Act speaks to our coherent body of caselaw holding that an oil and gas lease does not transfer fee-simple ownership of any part of the realty but rat her grants an incorporeal hereditament permitting the lessee to enter onto th e land to prospect for and produce the oil and gas under it. {¶ 80} The majority’s defense of its reliance on the dicta in Buell boils down to the ipse dixit that Buell controls because the majority says so. However, it is as
true for this court as it is for the United States Supreme Cour t that “[t]he justifications for the case system and stare decisis must rest upon the Court’s capacity, and responsibility, to acknowledge its missteps. It is our duty to face up to adverse, unintended consequences flowing from our own prior decisions.” Nixon
v. Shrink Missouri Govt. PAC , 528 U.S. 377, 406, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (Kennedy, J., dissenting). Rather than doubling down on Buell , which turned a century of caselaw on its head and which may yet have consequences this court did not intend, this court should simply admit its error and move forward,S UPREME C OURT OF O HIO

34 acknowledging Buell as a cautionary tale against d eciding issues that do not affec t the outcome of the case. The Majority’s Statute-of-Limitations Analysis Is Incorrect {¶ 81} In addition to mischaracterizing the nature of the property int erest created by an oil and gas lease, the majority incorrectly analyzes the statute-oflimitations issue in this case. It recognizes that a failure t o produce is not a breach of the oil and gas lease but rather terminates the lease by ope ration of law and that upon termination, “the mineral est ate revests in the lessor.” Majority opinion at ¶ 24. Yet it apparently also presupposes that the lease remain s in effect until an action is brought and the lease is declared terminated. But th ese two things cannot both be true. To expire by opera tion of law means no judicial action or record notice is required for the expiration of the lease to take effe ct—it is automatic. See generally Buell at ¶ 73-78. This court has sa id that “all rights to drill cea se at the expiration of the time limited in the grant” and that such cess ation of rights is not
based on “rescission or forfeiture , but [on] expiration of the term of the grant.”
Detlor v. Holland , 57 Ohio St. 492, 506, 49 N.E. 690 (1898). That is, upon the expiration of an oil and gas lease, the landowner regains all o f the sticks in the bundle of rights that go with property ownership, including the right to exclude others from the property or to l ease the oil and gas rights to someone else. {¶ 82} Accordingly, “although a court order may be necessary to adjudi cate the rights of the parties when allegations are that a lease has terminated for failure to produce in paying quantities, a lease terminates not because of the entrance of a court order but for failure to produce in paying quantities und er the lease’s
habendum clause.” Baytide Petroleum, Inc. v. Continental Resources, Inc. , 2010 OK 6, 231 P.3d 1144, ¶ 23. And notably, not only is no court a ction required for an owner/lessor of property to reclaim the mineral rights after termination of a lease, but also the General Assembly has provided an extrajudic ial method byJanuary Term, 2019

35 which the expiration of an oil and gas lease can be recorded to eliminate the cloud on the property’s title without res orting to the courts, R.C. 5 301.332. {¶ 83} Because court action is not needed to terminate a lease that ha s expired on its own terms and by operation of law, a statute-of- limitations defense is not relevant to determining whether an oil and gas lease has terminated and the mineral rights have reverted to the landowner. A statute of li mitations may come into play if the landowner subse quently seeks recovery for unju st enrichment or claims trespass or conversion of oil and gas after the lease’s expiration, see, e.g ., R.C. 2305.09. And the statute of limitations for recovering ti tle to or possession of real property, R.C. 2305.04, may be relevant when a lessee reli es on the 21-year period to obtain an interest by adverse possession. See State ex rel. A.A.A. Invests.
v. Columbus , 17 Ohio St.3d 151, 153, 478 N.E.2d 773 (1985); see generally Natural Gas Pipeline Co. of Am. v. Pool , 124 S.W.3d 188, 199 (Tex.2003) (holdover tenant on oil and gas lease acquired interest by adverse possession as defined by the original lease). But absent adverse possession, the landowner has full ownership of his or her property after the expiration of a lease, and no statute of limitations can limit the right of a landowne r to his or her own property, including the right to
seek a declaration that the leas e has terminated on its own ter ms. Conclusion {¶ 84} “It has become settled judicial responsibility for courts to re frain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declara tions or advice upon potential con troversies.”
Fortner v. Thomas , 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). And here, the majority’s declaration that the 21-year statute of limitations applies to a complaint seeking to establish that an oil and gas lease has expired is n ot only advisory but
also sows confusion in the law b y suggesting that judicial acti on is necessary to establish something that occurred automatically as a matter of law. And in reachingS UPREME C OURT OF O HIO

36 that determination, it relies on dicta in Buell , lending Buell unwarranted precedential value. {¶ 85} In the end, this case turns on the question whether a movant ha s demonstrated entitlement to a summary judgment, and the hypothe tical question of
which statute of limitations shoul d apply should be left for an other day. {¶ 86} Accordingly, I would dismiss this appeal as moot.
S TEWART , J., concurs in the foregoing opinion.

_________________ Fields, Dehmlow & Vessels, L.L.C ., and Ethan Vesse ls; and Knowl ton Bennett & Conaway and Bryan C onaway, for appellants. Theisen Brock, L.P.A., Daniel P. Corcoran, and Kristopher O. Ju stice; and
Donald D. Brown Law Offices and D onald D. Brown, for appellees. Chad A. Endsley, Leah F. Curtis, and Amy Milam, urging reversal for amici curiae Ohio Farm Bureau Federation and Guernsey County Farm Bur eau. 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 O hio Oil and Gas Association.

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