In a prospective announcement, the Court also concluded that because the DMA states that the surface owner “shall” comply with the statutory notice requirements, it reasons that the surface owner has the burden of proof to show they exercised reasonable diligent in attempting to identify and locate the holders of the mineral interest before resorting to service by publication.[11] These cases reinforce the premise that there is no bright-line rule for what qualifies as “reasonable diligence” in attempting to locate mineral owners under the DMA. What constitutes reasonable diligence depends on the facts of each case.Typically, searching the public records of the county where the property is located is sufficient, but not in every situation as the current cases highlight. To comply with the notice requirements of the DMA, surface owners should also act on any constructive notice or actual knowledge of information regarding other potential locations of the mineral owner before resorting to notice by publication. As a counterpart to the adage “Ignorance of the Law is No Excuse,” in Ohio “Ignorance of a Mineral Owner’s Last Known Location is No Excuse”under the DMA. _________ [1] Fonzi v. Brown, Slip Opinion No. 2022-Ohio-901. [2] Id.
[5] Id. at 13. [6] Id. at 14. [7] Id. at 4. [8] Id. at 20. [9] Gerrity v. Chervenak, 162 Ohio St. 3d 694. [10] Fonzi at 27. [11] Id. at 23.
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[3] Id. at 2. [4] Id. at 2.
It’s Not Who to Pay, It’s When to Pay: “Due” Under Samson Expl., LLC v. Bordages
Texas
discussed below, the Court found that the obligation to pay royalties had been “triggered” under the lease and was therefore not affected by a dispute as to the payee’s identity. 2 Additionally, while the “safe harbor” provisions offered by section 91.402(b) (the “Texas Suspense Statute”) do authorize withholding royalty payments without interest in the event of a bona fide title dispute, the lessors and lessee had expressly contracted around the Texas Suspense Statute in the lease. 3 Lastly, even if the “safe harbor” provision was
In Samson Expl., LLC v. Bordages , the Court of Appeals of Texas, Ninth District, Beaumont, examined when royalties under an oil and gas lease became “due,” and whether royalties were properly suspended without interest. Specifically, it examined lease provisions detailing “ when the payment is required ... rather than who is to be paid,” 1 and whether a claim of “equitable” title as opposed to legal title constituted a “bona fide title dispute” allowing for the suspension of royalty payments without interest. For the reasons _________ 1 Samson Expl., LLC v. Bordages , No. 09-20-00174-CV, 2022 Tex.App. LEXIS 206, 2022 WL 120004 at *18 (Tex.App.— Beaumont Jan. 13, 2022, pet. filed)
_________ 2 Id. at 17-18. 3 Id. at 18-19.
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