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West Virginia’s legislature recently introduced House Bill 2373, which would bring a Dormant Mineral Act to the state for the first time. Not intending to reinvent the wheel, West Virginia has essentially copied and pasted Ohio’s Dormant Mineral Act (DMA). 

The passage of this bill would come as welcome news to West Virginia’s surface owners, as well as the oil and gas producers operating in the state. If it were to pass, it finally provides a clear, quick, and efficient means of vesting title to ancient, abandoned mineral severances in the owner of the surface of the lands. However, West Virginia should be careful to avoid the headaches that have befallen Ohio courts due to the language of the DMA.  

The bill introduced in West Virginia, as in Ohio, contains the language “shall be deemed abandoned and vested in the owner of the surface.” For years, it was assumed by most legal analysts in Ohio that this language automatically transferred ownership of the mineral interest. However, in Corban v. Chesapeake, Ohio’s Supreme Court held that it merely created an evidentiary device, a rebuttable presumption, that the mineral ownership was abandoned to the surface owner. The holding made it necessary that a quiet title action be filed before the severed interest would be extinguished.

West Virginia should consider amending the language of this bill to reflect the language which is now being considered in Ohio. West Virginia has the opportunity to learn from Ohio’s issues and draft language which avoids the pitfalls and uncertainty that have befallen Ohio’s DMA. West Virginia should consider eliminating the “deemed abandoned” language with more definitive and clear language that the mineral interest is extinguished and vested in the surface owner. Further, West Virginia should consider amending the bill so that the heir of an ancient severance who files a claim to preserve only preserves his own interest, rather than those of potentially hundreds of heirs. 

In any event, the introduction of this bill is great news for current West Virginia landowners and the oil and gas producers operating in the state. Hopefully West Virginia’s legislature will also consider the difficult lessons learned in Ohio so that it can create a clear, reliable law from the moment of enactment.
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