Recently, in Shilts v. Beardmore (2018-Ohio-863), the Seventh District Court of Appeals analyzed whether a surface owner complied with the notice requirement of the 2006 version of the Ohio Dormant Mineral Act (Revised Code 5305.56) (the “2006 DMA”). Under the 2006 DMA, in order to abandon a dormant mineral interest, a surface owner must first serve a notice of abandonment upon the holder of the dormant mineral interest. The 2006 DMA requires the surface owner to serve this notice by certified mail, return receipt requested. However, if service of notice cannot be completed by certified mail, the 2006 DMA permits the surface owner to publish the notice in a newspaper of general circulation in each county where the subject land is located.

In Shilts, one of the central issues on appeal was whether the surface owner was required to at least attempt to serve his notice of abandonment by certified mail prior to serving his notice of abandonment by publication. In this particular case, the Seventh District Court of Appeals held that service by publication was sufficient.  The surface owner established that he had exercised reasonable efforts to locate the unknown heirs of the record owners of the dormant mineral interest, who reserved the mineral interest in 1914. Specifically, the surface owner searched the records of the county recorder’s office and probate court where the subject land is located.  He also searched the records of the Ohio Department of Natural Resources, Division of Oil and Gas Resources Management, that were applicable to the subject land and conducted an online search. None of these sources revealed the names and addresses of the unknown heirs. Because “it became clear that service [of the notice of abandonment] could not be completed by certified mail,” service by publication was sufficient. As the Court stated, “[i]t would be absurd to absolutely require an attempt at notice by certified mail when a reasonable search fails to reveal addresses or even the names of potential heirs who must be served.”

The Court’s decision can be read in full here.