1, 2020, the Supreme Court of Ohio accepted this appeal. In its discussion, the court relied upon its prior decision in Gerrity v. Chervenak , 162 Ohio St.3d 694 (2020), wherein it refused to adopt a bright- line rule and instead stated that the analysis of reasonable diligence should be conducted on a case-by-case basis. Here, the court stated, “[s]urface owners are not required to do the impossible… the issue is not whether the surface owner could have located all mineral-rights holders by exercising reasonable diligence. Instead, the question is whether the surface owner did exercise reasonable diligence.” The court placed the burden of proof on the surface owners to show that they were reasonably diligent in attempting to identify and locate the holders of the severed mineral interests. In placing the burden of proof on the surface owners, the court stated that O.R.C. 5301.56(E)(1)
provides that the surface owner “shall” comply with the statutory notice requirements outlined therein, and therefore, “the reasonable-diligence standard is entirely within the hands of the surface owner.” The court found that the surface owners did not exercise reasonable due diligence because they failed to search the public records of Washington County, Pennsylvania, and as a result, the surface owners’ attempts fell short compared to those attempts made in Gerrity . The Supreme Court of Ohio affirmed the appellate court’s decision. If you have questions about this ruling or how it might affect your business, please contact the authors of this alert.
Contributors Andreah S Riedel, Associate William J. O’Brien Jr., Member
DON’T FENCE ME IN OR NO FENCE, NO LIMITATION TITLE Part One – The Ten Year Statute
Texas
The stated purpose of this paper is to investigate the pertinent statutes/case law regarding the necessity of the prior proper fencing of lands by the adverse claimant when those lands are claimed under the ten (10) year limitation statute. Nature of Adverse Possession “Limitation represents the statutory acquisition of title to land by means of adverse possession. As shown by Article 5515 of the statutes, and the decisions interpreting such statutes, this means that there has been an actual, notorious, distinct and visible appropriation of land commenced and continued uninterrupted for the statutory period under a claim of right hostile to the claim of another, and of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Lange on Land Titles §861 (Texas Practice, West Publishing). “Adverse possession isn’t about who uses the property more or for better purposes; it’s about
whether one party ousts another from his legally held land. In other words, exclusive possession is required. Kleckner v. McClure , 524 S.W.2d 608, 613 (Tex. Civ. App.—Ft. Worth 1975, no writ) (emphasis added). The owner must be wholly excluded by the adverse claimant.….” Terrill v. Tuckness, 985 S.W.2d 97, 110 (Tex. App.—San Antonio 1998, no pet.). Limitation Title Generally A limitation title is not a marketable title until it is memorialized in a Trespass to Try Title case when it becomes absolute legal title. “ Marketable title has been a defined legal term in Texas jurisprudence since the 1920’s. ( Lund v. Emerson , 204 S.W.2d. 639 (Tex. Civ. App. — Amarillo 1947, no writ.); Owens v. Jackson , 35 S.W.2d. 186 (Tex. Civ. App. — Austin 1931, writ dism’d w.o.j.); Texas Auto Co. v. Arbetter , 1 S.W.2d. 334 (Tex. Civ. App. — San Antonio 1927, writ dism’d w.o.j.); Austin v. Carter , 296 S. W. 649 (Tex. Civ. App. — Eastland
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G rowth T hrough E ducat i on - A pr i l / M ay / J une 2022
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