[Cite as Artex Minerals, L.L.C. v. Foraker, 2026-Ohio-2732.]
IN THE OHIO COURT OF APPEALS
FIFTH APPELLATE DISTRICT
GUERNSEY COUNTY, OHIO
ARTEX MINERALS LLC, Case No. 25CA000044
Plaintiff - Appellant Opinion & Judgment Entry
-vs- Appeal from the Court of Common Pleas
of Guernsey County,
ROBERT T. FORAKER, et al., Case No. 24CV000331
Defendants - Appellees Judgment: Reversed and remanded
Date of Judgment: July 16, 2026
BEFORE: Andrew J. King, Kevin W. Popham, and David M. Gormley, Judges
APPEARANCES: Daniel P. Corcoran (Theisen Brock), Marietta, Ohio, for PlaintiffAppellant; Matthew W. Onest and David C. Hofsess (Krugliak, Wilkins, Griffiths & Dougherty), Canfield, Ohio, for Defendants-Appellees.
Gormley, J.
{¶1} Plaintiff Artex Minerals LLC challenges a trial-court decision granting
summary judgment in favor of defendants Robert and Kathleen Foraker. In 2023, Artex
acquired certain underground mineral rights from the purported owner of those rights beneath
43 acres of land in Guernsey County. More than 10 years earlier, though, the Forakers —
who are the current owners of the surface rights to the land — had invoked the
“abandonment” process spelled out in R.C. 5301.56 (Ohio’s Dormant Mineral Act) to
acquire, they say, the mineral rights beneath their land from the entity who later sold those
same rights to Artex.
{¶2} So, who now owns the underground mineral rights, and can Artex challenge
the Forakers’ claim that they, rather than Artex, own those rights ?
{¶3} The trial court sided with the Forakers, citing several undisputed facts: (1) the
Forakers in 2011 published a newspaper notice describing their intent to acquire, through the
statutory abandonment process, the underground mineral rights beneath their land, (2) the
Forakers then filed in the county recorder’s office an affidavit stating that they had acquired
those underground mineral rights through the abandonment process, and (3) the Forakers
also had the county recorder add in 2012 a handwritten notation to the recorder’s copy of the
1944 deed in which the surface rights and the underground mineral rights had first been
severed, and that so-called marginal notation on the official copy of the deed in the county
recorder’s office indicated that the mineral rights described in that deed had been abandoned
in 2011.
{¶4} In the trial court’s view, Artex in 2023 could and should have seen the Forakers’
2012 marginal notation on the recorded deed when Artex sought to acquire the underground
mineral rights from a company called Kingston Oil Corporation, who was the purported
owner of those rights. That marginal notation should have alerted Artex in 2023 that the
Forakers — rather than Kingston Oil — were by then the apparent owners of the underground
mineral rights, according to the trial court. Under Ohio’s Dormant Mineral Act, Artex, in
the trial court’s view, has no standing now to challenge the Forakers’ claim of ownership of
those mineral rights.
{¶5} But the Forakers, according to Artex, failed in 2011 to give to Kingston Oil —
the then-owner of the underground mineral rights — the requisite notice required by the
Dormant Mineral Act, so the Forakers, in Artex’s view, never actually acquired through the
abandonment process the mineral rights that the Forakers now claim to own.
{¶6} For the reasons explained below, we reverse the summary judgment that the
trial court granted in the Forakers’ favor. Whether the Forakers’ purported acquisition of the
mineral rights through the abandonment process comported with the Dormant Mineral Act
is a question that the trial court did not decide and that the present record does not answer.
{¶7} An answer to that question matters. If the Forakers failed to comply with R.C.
5301.56’s notice requirement in 2011, then their purported acquisition of the mineral rights
through the abandonment process did not divest Kingston Oil of its ownership interest in the
mineral rights, and we believe that Kingston — as well as any person or entity, such as Artex,
who is a subsequent purchaser of those mineral rights — can challenge the purported
abandonment now.
The Key Facts
{¶8} In 1944, Robert and Ena Martin severed the surface rights from the
underground-mineral rights on their 43-acre parcel in Guernsey County, selling to a new
owner all of the surface rights but retaining for themselves an undivided 80% interest in the
underground minerals. After a series of conveyances and corporate consolidations in the
ensuing decades — all of which were properly recorded and indexed in either the county
recorder’s office or the Ohio Secretary of State’s office — that 80% interest in the underground
minerals ended up in the hands of an entity known as Kingston Oil Corporation. Then in
2023, Kingston conveyed all of its Ohio oil and gas assets — including the 80% interest in
question — to Artex.
{¶9} As for the surface rights and the remaining 20% interest in the underground
minerals, those eventually ended up in the hands of the Forakers in the year 2003. And in
2011, the Forakers turned to Ohio’s Dormant Mineral Act in R.C. 5301.56 to try to acquire the 80% interest that was then held by Kingston. As part of that statutory abandonment
process, the Forakers published a newspaper notice about their plans, with that notice directed
to “Robert H. Martin and Ena Martin, or if deceased, their unknown heirs.” Then weeks
later, the Forakers recorded with the county recorder an affidavit of abandonment that
described the mineral rights in question, and they also in 2012 had the county recorder add a
marginal notation to the recorder’s copy of the Martins’ 1944 deed in which the surface rights
and mineral rights had first been severed, with that marginal notation indicting that the 80%
mineral-rights interest described in that 1944 deed had been abandoned in 2011.
{¶10} What is unclear from the record before us is whether, before publishing the
abandonment notice in a local newspaper in 2011, the Forakers had conducted any sort of
search to identify and locate Kingston as the then-current holder of the 80% mineral-rights
interest, and we also do not know whether the Forakers tried to serve, whether by certified
mail or otherwise, any notice to Kingston about the Forakers’ plans to acquire the mineral
rights by claiming that those rights had been “abandoned” as that term is used in R.C.
5301.56(B).
{¶11} In 2024, Artex sued the Forakers and asked the trial court to determine who
owns the 80% mineral-rights interest. After the parties each filed summary-judgment
motions, the trial court sided with the Forakers, finding that Artex lacks standing to challenge
the Forakers’ ownership claim.
The Standard of Review
{¶12} We review with fresh eyes a trial court’s decision to grant summary judgment.
McCord v. Ron Laymon Trucking Co., 2005-Ohio-4399, ¶ 19 (5th Dist.). Summary judgment is
proper only where no material facts are genuinely in dispute, where the moving party is entitled to judgment as a matter of law, and where reasonable minds, viewing the evidence
most strongly against the movant, can reach but one conclusion, with that conclusion being
adverse to the non-moving party. Id. at ¶ 22; Civ.R. 56(C).
{¶13} Standing to sue is the requirement that a litigant must have a real stake in the
dispute and must allege a concrete injury that is both traceable to a defendant’s conduct and
redressable by a court. Moore v. Middletown, 2012-Ohio-3897, ¶ 21–22. Whether established
facts confer standing to sue is a question of law, which we examine without deference to the
trial court’s view. Portage Cty. Bd. of Commrs. v. Akron, 2006-Ohio-954, ¶ 90.
What Earlier Cases Have Resolved: The Owner of Surface Rights in Land Who Tries to Use the Abandonment Process to Acquire Underground-Mineral Rights Beneath that Land Must Comply with the Notice Requirement in R.C. 5301.56(E)
{¶14} Several court decisions — including a key one from the Supreme Court of Ohio
— have settled an important issue surrounding the Dormant Mineral Act, and those decisions
emphasize the importance of a surface owner’s compliance with the Act’s notice requirement.
{¶15} The language of R.C. 5301.56(B) tells us that a severed mineral interest is
“deemed abandoned and vested in the owner of the surface of the lands subject to the interest”
only “if the [notice] requirements established in division (E) of this section are satisfied” (and
also if no statutory saving circumstance — such as actual mineral production at the site within
the preceding 20 years — applies). Compliance with division (E)’s notice requirement is thus
a “condition precedent” to acquiring mineral rights through abandonment. Fonzi v. Brown,
2022-Ohio-901, ¶ 15. That requirement includes the surface owner’s obligation to exercise
what the Supreme Court has described as “reasonable diligence” to identify and locate the
holders of the interest before resorting to notice by publication. Id. at ¶ 21, applying Gerrity v.
Chervenak, 2020-Ohio-6705, ¶ 41. And the surface owner bears the burden of proving that he or she complied with that reasonable-diligence standard, including in any “subsequent action
challenging a surface owner’s compliance with the [Act]’s notification requirements.” Fonzi
at ¶ 23.
{¶16} When a surface owner fails to satisfy those requirements, that failure “precludes
application of the Dormant Mineral Act.” Beckett v. Rosza, 2021-Ohio-4298, ¶ 25 (7th Dist.).
See also Fonzi at ¶ 21 (“a surface owner” who fails to comply with the notice requirement in
R.C. 5301.56(B) “is not entitled” to acquire through the abandonment process the mineral
rights under the surface). The interest, in that event, “cannot be deemed abandoned and
instead remains with the mineral-interest holder.” Albanese v. Batman, 2016-Ohio-5814, ¶ 21.
See also id. at ¶ 22 (because the notice and affidavit requirements are mandatory, a surface
owner who fails to meet them acquires nothing: the mineral rights “never vest[]” in the surface
owner but instead “remain” with the holder); Blackstone v. Moore, 2017-Ohio-5704, ¶ 17 (7th
Dist.) (“any attempt to declare mineral interests abandoned . . . must comply with the notice
requirements” of the Act).
{¶17} It follows that any effort by a surface-rights owner to acquire undergroundmineral rights through the abandonment process is a nonstarter unless the notice requirement
has been met. Any recorded affidavit or marginal notation on a deed in those circumstances
would not change that result, and those recordings would represent at best a cloud on the
mineral-rights owner’s — the holder’s — title to those rights rather than a reflection of a valid
conveyance of the mineral rights to the surface-rights owner. See Corban v. Chesapeake
Exploration, L.L.C., 2016-Ohio-5796, ¶ 29 (plurality opinion) (explaining that the Act vests
abandoned mineral rights in the hands of a new owner “if the [notice] requirements
established in division (E)” of the statute “are satisfied”) (quotations omitted). What We Resolve Today: Both the Holder and Any Successors of the Holder of Underground-Mineral Rights Have Standing to Challenge a Purported Abandonment That Arguably Did Not Comply with R.C. 5301.56(E)’s Notice Requirement
{¶18} When a surface-rights owner has purportedly acquired mineral rights through
the statutory abandonment process, who may challenge that abandonment: only the person
who held the mineral interest at the time of the attempted abandonment, or also a later owner
who acquires that interest from the holder ? The trial court took the narrower view,
concluding that only Kingston — the holder in 2011 — could have challenged the Forakers’
abandonment, and that Artex, who acquired Kingston’s interest in 2023, could not. After
examining the statute, we reach the opposite conclusion.
{¶19} R.C. 5301.56(A)(1) defines “holder” of a mineral interest as not only the
“record holder of a mineral interest” but also “any person who derives the person’s rights
from, or has a common source with, the record holder.” As the Seventh District has
explained, “[a] person who derives her rights from the record holder is herself a holder under
the plain terms of the statute.” Jefferis Real Estate Oil & Gas Holdings, LLC v. Schaffner Law
Offices, L.P.A., 2018-Ohio-3733, ¶ 31 (7th Dist.).
{¶20} And notably, the Act, in R.C. 5301.56(H)(1), extends not only to “a holder”
but also to “a holder’s successors or assignees” the right, for a set period of time, to challenge
a claim that the holder’s mineral rights have been abandoned. See also Jefferis at ¶ 30 (“A
timely post-notice-of-abandonment claim to . . . thwart [the] abandonment . . . can be filed by
a holder [and] . . . also . . . by a holder’s successor or a holder’s assignee”).
{¶21} Our reading of the statute, then, leads us to conclude that the right to challenge
a surface-rights owner’s claim that he or she has acquired underground-mineral rights through
the abandonment process extends not only to the holder of the mineral rights purportedly taken through that abandonment process but also to those who later acquire that
underground-mineral interest from the purported owner of it. We see nothing in the Act that
would allow only Kingston Oil to challenge the Forakers’ 2011 effort to acquire Kingston’s
mineral-rights interest.
{¶22} And once Kingston had purportedly sold its interest to Artex in 2023, Artex
had a real stake in any dispute over ownership of the underground minerals. Any challenge
to the Forakers’ compliance with the Act’s notice requirement extends not only to Kingston
Oil as the original holder of the underground-mineral rights but also — in the words of R.C.
5301.56(H) — to any of Kingston’s “successors or assignees,” like Artex, who have
purportedly acquired those rights. Because the trial court improperly, in our view, cut off
Artex’s right to challenge the Forakers’ 2011 compliance with the notice requirement, we now
reverse the trial court’s grant of summary judgment in the Forakers’ favor.
{¶23} On remand, the Forakers, as the surface-rights owners, bear the burden of
proving that they complied with R.C. 5301.56(E), and that means showing that they exercised
reasonable diligence to identify and locate the mineral-rights holder before resorting to notice
by publication. Fonzi, 2022-Ohio-901, at ¶ 23. The present record does not establish whether
the Forakers in 2011 searched for or attempted to serve Kingston, which was the then-holder
of the underground-mineral rights.
What Remains to be Resolved in This or Some Future Case: What Time Limits, if Any, Apply to Abandonment Challenges ?
{¶24} Not before us today are some time-related uncertainties posed by the Dormant
Mineral Act. Whether this is the case for resolving those uncertainties is a question we leave
for another day, but we note the uncertainties because, though standing is not, in our view,
an impediment for Artex, delay by a successor in interest like Artex could limit the ability of such a successor to challenge an abandonment, even where the surface-rights owner has fallen
short in giving notice to the mineral-rights holder.
{¶25} One time limit that appears in the Act is the 60-day period mentioned in R.C.
5301.56(H). Under that provision, the holder of underground-mineral rights that a surfacerights owner is seeking to acquire through the abandonment process is given 60 days from the
date on which “the notice was served or published” to take steps to preserve the undergroundmineral interest. Does that 60-day time limit serve as a firm cutoff date after which the holder
of the mineral rights (and any successor of that holder) loses any right to challenge the validity
of the abandonment process, even where the surface-rights owner has not complied with the
R.C. 5301.56(E) notice requirement ? And should a holder of mineral rights (and any
successors of that holder) be bound by that 60-day time limit where the surface-rights owner
has failed to comply with the Fonzi decision’s reasonable-diligence standard for notifying the
mineral-rights holder about the abandonment effort ? Those questions might be ones that the
parties will want the trial court to address, but they are not questions that the parties have
briefed or argued for us now.
{¶26} We find ourselves wondering, too, whether, even if the 60-day limit does not
apply to situations where a surface-rights owner has fallen short in complying with the R.C.
5301.56(E) notice requirement, a limitations period of some sort — whether statutory or
constitutional or perhaps based on equitable doctrines such as estoppel or laches — exists or
ought to be recognized that would eventually cut off the ability of a mineral-rights holder (or
successor) to come back years later to challenge the validity of a purported abandonment. We
flag the question because language in paragraph 15 of the Supreme Court’s Fonzi decision —
where the Court held that “[c]ompliance with” R.C. 5301.56(E)’s notice requirement is a “condition precedent” to a surface-rights owner’s effort to acquire mineral interests through
abandonment — could open the door to the filing of an abandonment-related legal challenge
by a mineral-rights holder (or by that holder’s successors) many decades after a surface-rights
owner purports to acquire mineral rights through the abandonment process. See Alexander
McElroy, Ohio's Dormant Mineral Act: Current and Unresolved Issues, 44 Cap.U.L.Rev. 325, 355
(2016) (noting that the Dormant Mineral Act sets no limitations period for a challenge to a
defective abandonment).
{¶27} As the Supreme Court has explained, the Dormant Mineral Act provides a
mechanism “to facilitate the reunification of abandoned mineral interests with surface
interests,” and it “promote[s] the use of . . . mineral rights for development and production.”
West v. Bode, 2020-Ohio-5473, ¶ 21 (citation and quotations omitted). Toward that end, the
Act enables a surface-rights owner to reclaim a severed mineral interest without having to file
a lawsuit, and the Act’s provisions call for notice to be given to the mineral-rights holder and
directs that a public record of the abandonment be created so that third parties may, in the
decades that follow, rely on what that record shows. Id. at ¶ 38.
{¶28} But what if, perhaps 100 years after a surface-rights owner has purportedly
acquired some underground-mineral rights through the abandonment process, the successor
in interest to a past holder of those mineral rights comes forward and challenges that longdead surface-rights owner’s compliance with the R.C. 5301.56(E) notice requirement ? How
might the successor of the now-dead surface-rights owner meet the burden of showing that
notice was properly given (or was at least attempted with reasonable diligence), and should
Ohio allow a purported abandonment to be undone so many years after recorded instruments suggest that an abandonment has occurred ? Such an outcome might not square with the
finality and certainty that the Act is presumably intended to provide.
{¶29} In the end, those questions are not before us today, and we make no attempt to
answer them now. At this point, we hold only that Artex — which acquired Kingston Oil’s
underground-mineral interest in 2023 and thus became “a holder’s successor[]” as that term
is used in R.C. 5301.56(H) — is not barred (at least by the doctrine of standing) from
challenging the validity of the Forakers’ 2011 effort to acquire, through the abandonment
process spelled out in R.C. 5301.56, the underground-mineral interest then held by Kingston.
{¶30} The judgment of the Court of Common Pleas of Guernsey County is reversed,
and the case is remanded for further proceedings consistent with this opinion. Costs are to be
paid by Appellees Robert and Kathleen Foraker.
By: Gormley, J.;
King, P.J. and
Popham, J. concur.