O’Brandovich v. Hess Ohio Developments, LLC: Seventh District Clarifies When Mineral Reservations Include Oil and Gas in Ohio

By: Steven R. R. Anderson

When a deed reserves “all the coal and other minerals” under a piece of land, disputes can arise as to whether the drafter intended “other minerals” to include oil and gas. Ohio’s courts have been settling such disputes for more than a century. The recent decision from the Seventh District Court of Appeals in O'Brandovich v. Hess Ohio Devs., LLC[1] is the most recent example, and it brings some welcome clarity to an occasionally murky area of Ohio law.

Detlor v. Holland

In 1898, the Ohio Supreme Court decided Detlor v. Holland[2], in which it laid out the test that Ohio’s lower courts have used ever since to settle disputes concerning reservations of “other minerals”.

While the Detlor Court found that “[t]he words ‘other minerals,’ or ‘other valuable minerals,’ taken in their broadest sense, would include petroleum oil”[3], it nonetheless held that the inquiry did not end there. The question courts must ask is, “did the parties intend to include such oil in the mining right?”[4] To answer it, “the deed…must be construed in the light of the oil developments as they then existed in the vicinity of the lands.”[5]

The deed at issue in Detlor was executed in 1890. Regarding oil and gas developments in the area at the time, the Court found that “[o]il was then produced in small quantities within from ten to twenty miles of the lands, but there is nothing to show that the parties to the conveyance had any knowledge thereof.”[6]

Furthermore, the deed reserved “the right ‘of mining and removing such coal, ore or other minerals, * * * with the right to the use of so much of the surface of the land, as may be necessary for pits, shafts, platforms, drains, railroads, switches, sidetracks, etc., to facilitate the mining and removal of such coal, ore or other minerals, and no more.’”[7] Concerning these mining rights, the Court determined that “[t]he incidents here granted are all such as are peculiarly applicable to the mining of minerals in place, and not to such as are in their nature of a migratory character, such as oil or gas.”[8] It found persuasive the fact that “[n]othing is said about derricks, pipe lines, tanks, the use of water for drilling, or the removal of machinery used in drilling or operating oil or gas wells.”[9]

Taking these surrounding circumstances into account, the Court concluded that “[t]here is nothing to show that it was the intention of the parties that oil should be included in the word ‘minerals,’ and the easements granted in connection with the mining right, are not applicable to producing oil, and show that oil was not intended to be included in the conveyance. If it had been, apt words would have been used to express such intention.”[10]

Subsequent Case Law

Since the Supreme Court’s decision in Detlor, Ohio’s courts have applied its reasoning to similar reservations of “other minerals”. As in Detlor, the two primary inquiries have been, first, how commonplace was oil and gas drilling in the area of the lands at the time of the reservation? And, second, does the reservation contain any language limiting “other minerals” in such a way as to preclude the inclusion of oil and gas?

Some opinions have applied Detlor’s reasoning to similar facts to reach the same result.[11] Others have distinguished their facts from Detlor’s to find that phrases like “other minerals” do include oil and gas.[12] And at least one opinion has seemingly turned a portion of Detlor’s reasoning on its head, potentially conflicting with it.[13]

O'Brandovich v. Hess Ohio Devs., LLC

The Seventh District Court of Appeals recently stepped into this breach when it handed down its decision in O'Brandovich, providing a review of the case law on point to date, and summarizing the Detlor test as it has evolved over time.

At issue in O’Brandovich was a 1940 deed in which the grantor reserved “all the coal and other minerals” from the property being conveyed, as well as the right “to use, occupy and possess any of the surface of the above described premises necessary, convenient or required for the exploring, drilling, testing, mining and removal of said coal or other minerals.”[14]

After examining each of the cases cited above, the Court stated that “[i]t is clear from this line of cases that we are now to begin our analysis with a presumption that the phrase ‘other minerals’ includes oil and gas interests.”[15]

It continued that, “[w]ith that in mind, it must then be determined if the deed demonstrates whether the parties intended to include oil and gas interests.”[16] “Accordingly, we turn to the language of the deed in this matter to determine if it demonstrates the parties' intent. When doing so, courts look to whether the easement language includes language that may be relevant to the extraction of oil and gas.”[17]

Upon examination, the Court determined that, despite pertaining mostly to coal extraction, the language of the deed “is not inconsistent with the development of oil and gas.”[18] In other words, explicit references to oil and gas extraction are not necessary; all that is required is the absence of language that would preclude it. The Court, therefore, determined that oil and gas at issue were covered by the phrase “other minerals”.[19]

It then summarized the Detlor test as follows: “If oil and gas was not commonly being produced at the time the deed was written, we cannot presume it was intended to include these minerals. Once production in Ohio became fairly commonplace, however, we may expect some reference to oil and gas when using the general language ‘other minerals.’ This has come to mean that, in Ohio, we start with the presumption that the general phrase may include oil and gas rights so long as the language can be reasonably seen to include these minerals in some way and other language in the deed does not exclude these minerals.”[20]

While some uncertainty still exists (such as in clearly defining what it means for oil and gas to “commonly be produced”), this summary and restatement of the Detlor test is a welcome clarification to this area of Ohio law.

Read the full opinion here.

[1] 2021-Ohio-1287.

[2] 57 Ohio St. 492, 49 N.E. 690 (1898).

[3] Id. at 504.

[4] Id.

[5] Id. at 502-503.

[6] Id. at 503.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 504.

[11] See, e.g., Gordon v. Carter Oil, Co., 19 Ohio App. 319, 3 Ohio Law Abs. 43, 23 Ohio L. Rep. 53 (5th Dist.1924); Sheba v. Kautz, 2017-Ohio-7699, 97 N.E.3d 893 (7th Dist.).

[12] See, e.g., Hardesty v. Harrison, 1928 Ohio Misc. LEXIS 1074 (5th Dist. 1928); Jividen v. New Pittsburg Coal Co., 45 Ohio App. 294, 15 Ohio Law Abs. 169, 187 N.E. 124, 39 Ohio L. Rep. 85 (4th Dist.1933); Wiseman v. Cambria Products Co., 61 Ohio App.3d 294, 572 N.E.2d 759 (4th Dist.1989); Coldwell v. Moore, 2014-Ohio-5323, 22 N.E.3d 1097 (7th Dist.).

[13] Muffley v. M.B. Operating Co., Inc., 5th Dist. No. CA-6910, 1986 Ohio App. LEXIS 8865, 1986 WL 12348 (Oct. 27, 1986).

[14] O’Brandovich, 2021-Ohio-1287, at ¶ 2, 29.

[15] Id. at ¶ 26.

[16] Id.

[17] Id. at ¶ 27.

[18] Id. at ¶ 29.

[19] Id. at ¶ 29, 30.

[20] Id. at ¶ 31.