Petition for Writ of Certiorari — Litman v. Quarto Mining Co.

ase CARY FILED

) irr x,

JUL 14 1975

Supreme Court of the Hnited States

October Term, 1975

No. 5 - 80

Asher Litman and Juanita Litman

‘ Petitioners

VS.

Quarto Mining Company

;

: Respondent

4 :

}

PETITION FOR A WRIT OF CERTIORARI TO THE OHIO

. SUPREME COURT

Allan Sherry

SHERRY & YOSS

115 North Main Street

Woodsfield, Ohio 43793

Attomey for Petitioner

Sentinel Printing Co., Inc., Woodsfield, Ohio 43793

TABLE OF CONTENTS

PAGE

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Reason For Granting the Writ:

I. This Writ Should Be Granted By This Court

Because The Decision Below Works A Denial

Of The Fourteenth Amendment Guaranty Of

Due Process In That The Court Below Com-

mitted Gross And Obvious Errors In Applying

er ee ee ee §

Il. This Writ Should Be Granted By This Court

Because Of The Public Importance Of De-

termining The Merits Of This Case............ §

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Appendix D.... 06... cece cece ee ee ee ene e eens 32

Appendix E.. 1... cece cece eee eee teen eens 47

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases PAGE

Brinkerhoff-Faris Trust and Savings Co. v. Hill

SBE US GTS, GRO CIOS) nc cnt a cc veivcsccscncess 6

Green v. Frazier, 253 US 238 (1920) ...........4--- 6

Roberts v. New York 295 US 264, 277 (1935)....... 6

Rosenkratz v. West 2 OLA. 490 (1923)........... 6,7

Worcester County Trust Co. v. Riley302 US 292,

ri. oi Sere per eee rere ere rer rr reer ree 6

Constitutional Provision

United States Constitution,

ok gece ee akek dss Kd ae ds Oh 2

AY 33; 4ecS

28 USC Section 1257 (3)............ ea aia aetatehs 2

Ohio Revised Code Section 2131.08 ..............-- 4

Ohio Revised Code Section 2305.06 ........... 3, 4.6,7

Ohio Revised Code Section 5301.47 ............2-5- 7

Ohio Revised Code Section 5301.48 ........--++-- 7,8

Ohio Revised Code Section 5301.50 ..........--4--- 8

Ohio Revised Code Section 5301.53 ...........-.. 7,8

Ohio Revised Code Section 5301.56 ..........-..555 7

3n the

Supreme Court of the United States

October Term, 1975

—_—

No.

Asher Litman and Juanita Litman

Petitioners

vs.

Quarto Mining Company

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE OHIO

SUPREME COURT

The Petitioners, Asher and Juanita Litman, respectfully pray

that a writ of certionari issue to review the judgment and opinion

of the Ohio Supreme Court, entered in this proceeding April 16,

1975.

OPINIONS BELOW

The opinion of the Court of Common Pleas of Monroe County ,

Ohio is appended hereto as Appendix ‘‘A’’.

The opinion of the Court of Appeals of Monroe County, Ohio

ots

Seventh Appellate District is appended hereto as Appendix *“B’’.

The second opinion of the Court of Appeals of Monroe

County, Ohio Seventh Appellate District is appended hereto as

4 co gall

The opinion of the Ohio Supreme Court is appended hereto as

A hi a.

CONSTITUTIONAL PROVISION

United States Constitution, Article of Amendment 14.

JURISDICTION

The judgment of the Ohio Supreme Court was entered April

16, 1975, and appears as Appendix **D’’ hereto. We invoke the

jurisdiction of this Court under 28 USC Section 1257 (3)

STATEMENT OF FACTS

In May, 1906, defendants-petitioners, predecessor in title

executed a deed to a part of the coal in place in the property

described in said instrument. In addition thereto, petitioners’

predecessor in title in said deed stated as follows :

ASHER LITMAN TRACT:

‘Together with all the rights and privileges necessary and

useful in the mining and removing of said coal, including the

right of mining the same without leaving any support for the

overlying strata, and without any liability for any imjuries

which may result to the surface from the breaking of said

strata, the right of ventilation and drainage however , to be in

the ravines and waste place upon said lands and not nearer

than twenty rods of the principal buildings thereon. Any

surface ground required for shafts or openings, or machinery,

ways, roads, houses for employees, etc. may also be taken by

the grantee, his heirs or assigns, but shall be paid for before

being occupied at the rate of One Hundred Dollars per acre,

which payment shall thereupon entitle the grantee his heirs

or assigns, to a deed in fee for the same. Also the exclusive

&

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rights of way for the purpose of mining, ventilating, draining

and transporting the coal of other lands through the mines

and openings in upon and over the said lands of the grantor.””

JUANITA LITMAN TRACT;

**Together with all necessary or convenient rights of way on

the surface and under it for the purpose of approaching,

mining, removing and transporting said coal, and also the

coal under other lands and to at pleasure, place, maintain,

remove and replace on the surface or under it all fixtures,

structures, and machinery and appliances deemed necessary

or convenient to the operation of the mines and to do all

things required to air and drain the workings through the

surface of said lands and to erect and maintain on the surface

poles and wires for electrical power and also the power to

mine and remove all of said coal with or without having

support to the surface of said lands with a waiver by the

grantors of all damages whatever for any injury to the surface

or to water courses or roads or ways by reason of the mining

and removal of said coal and said grantees are also given the

option to at pleasure buy and require a like conveyance of the

surface exclusive of buildings at the price of Two Hundred

Dollars per acre payable in cash when conveyed.”’

Sixty-seven years after the execution of this purported

agreement, the palintiff-respondent, the purported successor in

title, commenced an action to acquire portions of the premises in

question.

The Trial Court held that the right to purchase was not a bare

option but that it was an integral part of the bundle of rights

which vested in the owner of coal when it was conveyed

seperately from the surface. Petitioners contended throughout,

both in their pleadings and assignments of error, that the pur-

chase clause in the original deed was a bare option at best, which

would be barred after fifteen years in accordance with Ohio

Revised Code Section 2305.06. Further , that if it was any more

that a bare option, it violated the Rule against Perpetuities as set

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forth by Ohio Revised Code Section 21 31.08. It was also contended

by petitioners throughout that the option was invalid by virtue of

the Marketable Title Act. J

The Appellate Court determined that the exercise of an option

to purchase surface land for mining purposes, beyond the period

provided by Ohio Revised Code Section 2131.08, would violate

the public policy purposes of such statute.

It was also held by the Appellate Court that the option to

purchase the surface land was on executpry contract which would

be barred after fifteen years pursuant to Ohio Revised Code

Section 2305.06, however, the Court held that it was un-

necessary to decide this question because of the application of

Ohio Revised Code Section 2131.08.

Although neither the respondent nor the petitioners in the trial

court contended tha’ the respondent had an easement over

petitioners land, the fix: holding of the Court of Appeals was

that the 1906 coal deed gave to the respondent an easement for

such use of the surface land as would be required for the removal

of coal from petitioners’ land for a beltway to transport coal from

other lands, not only those immediately adjacent to petitioners’

property but land some distance away.

The Ohio Supreme Court reversed the Appellate Court and

held the options valid. The court ordered the petitioners to

convey their land at the actual market value and if the parties

could not establish the actual market value, the trial court should

grant specific performance upon the payment of the actual value

of the property. It is from this judgment that Petitioners seek a

writ of Certiorari from this Court.

TRAVEL OF THE CASE

This case was the first heard in the Court of Common Pleas of

Monore County. The Court held that the options to purchase

were ‘‘an integral part of the bundle of rights which vested in the

owner of the coal when it was conveyed seperately from the

surface and were therefore not subject to the rule against per-

PE RRA TRIER ee SNORE ROE ETRE IT EE! PRSEEY HALO Va

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petuities.'' The Court also found the proposed belt line to be

“necessary and useful and convenient in obtaining and tran-

sporting the coal,*” and therefore ordered the conveyance to the

respondent of 1.32 acres from the Asher Litman tract and 1.568

from the Juanita Litman tract. upon payment of the prices

specified in the deeds.

Appeals were taken in the Court of Appeals. In its **First

Opinion’’ on November 14, 1973, the Court reversed the

judgment of the Court of Common Pleas and found the provisions

in petitioners’ deeds void by virtue of the rule against per-

petuities, but found the respondent had an easement over

petitioners’ lands. The Court of Appeals continued the case on

the question of whether respondent’s easement mduded an

overhead belt line. In its ‘‘Second and Final Opinion” of January

23, 1974, the court found that respondent ’s easement did extend

to the construction and operation of an overhead belt line, electric

power transmission lines, and an access road along the belt line.

Respondent and Petitioners appealed the judgments of the

Court of Appeals, and the case came before the Ohio Supreme

Court pursuant to the allowance of motions to certify the record.

The Ohio Supreme Court reversed the judgment of the Court of

Appeals and held the options to be valid. Accordingly , the Court

ordered the Petitioners to convey their land at the ‘‘actual value

of the property.”” It is from this judgment that Petitioners seek a

writ of certiorari.

QUESTION PRESENTED

Does a state court deprive a land owner of his Fourteenth

Amendment guaranty of due process when it commits a gross and

obvious error in applying state law and thereby forces the land

owner to convey his property against his will?

REASONS FOR GRANTING THE WRIT

I. This writ should be granted by this Court because the

decision below works a denial of the Fourteenth Amendment

guaranty of due process in that the Court below committed gross

and obvious errors in applying state law.

Under the Fourteen Amendment, states are forbidden to

deprive persons of life, liberty or property without due process of

law. Green v Frazier. 253 US 233, 238 (1920). There is no

doubt that state action through its judicial branch can violate the

federal guaranty of due process. Brinkerhoff-Faris Trust and

Savings Co. v Hill, 281 US 673.680 (1930). We realize that the

Fourteenth Amendment does not raise a federal question in every

case to test the justice of a decision, Worcester County Trust Co.

v. Riley. 302 US. 292. 299 (1937). However, when a Court

commits gross and obvious error. as the Ohio Supreme Court did

in the instant case. and thereby takes property by force of

judgment there has been a deprivation of due process, Roberts v.

New York, 295 US 264, 277 (1935).

The Ohio Supreme Court has determined that petitioners must

convey their property, against their will, to respondent. The

Court committed gross error in arriving at its decision.

The first gross error the court committed was in the application

of Ohio Revised Code Section 2305.06 which provides that **an

action upon a specialty or an agreement, contract, or promise in

writing shall be brought within fifteen years after the cause

; thereof accured.’’ The Court referred throughout its opinion to

: the provisions in the deed as ‘‘options’’. Nevertheless the Court

specifically inforced these option contracts after a period of time

had elapsed which was greatly in excess of the fifteen year

statutory limitation provided by ORC 2305.06.

The Court stated in reference to ORC 2305.06, *‘a cause of

action for conveyance of property did not accrue until the surface

was needed for the exercise of grantee’s mineral rights.’’ Clearly ,

this is not the law in Ohio. It should be noted that the option

provisions established no definite time for the exercise of the

option. Where no time for performance is specified in the con-

tract, a presumption exists that performance is to be made within

a reasonable time, Rosenkratz v. West 2 O.L.A. 490 (1923). In

Rosenkratz ‘‘supra,’’ a period of slightly more than two years for

offer or tender of payment on a contract for purchase of realty was

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held not to have been made within a reasonable time. Therefore.

if respondent ever did have a cause of action based on these option

provisions it must be said to have accrued within a reasonabie

time after the execution of the deeds containing the option

provisions. A reasonable time would be somewhat less than two

years according to Rosenkratz ‘*supra.* Since respondent's cause

of action on the option agreements therefore accured in less than

two years after the option agreements were executed. respondent

had fifteen vears thereafter to bring suit upon said agreements

which would mean that respondent had a total of slightly less than

seventeen years to enforce his supposed rights under the option

provision of the 1906 deed. Sixty-seven vears after the option

agreements were entered into, respondent. for the first time.

attempted to assert his claimed rights thereunder. The Ohio

Supreme Court has permitted respondent to do so in clear

disregard of O.R.C. 2305.06 and has thus committed a gross and

obvious error which requires correction by this court if

petitioners are to be accorded their due process rights under the

Fourteenth Amendment.

The second gross error the Ohio Supreme Court made was in

applying the Marketable Title Act. We consider these statutes to

clear defects and to make a title marketable as is stated in Ohio

Revised Code Section 5301.48:

** Any person having a legal capacity to own land in this

State, who has an unbroken chain of title record to any

interest in land for forty years or more, has marketable

record title to such interest as defined in Section 5301.47 of

the Revised Code.”

The above section of the Revised Code must be read in con

nection with Section 5301.53 which reads in pertinent part as

tollows :

**The provisions of Sections 5301.47 to 5301.56, in

clusive of the Revised Code, shall not be applied: .. .. .. (E) to

bar or extinguish any right, title, estate or interest in and to

minerals, or any mining or other rights appurtenant thereto

or exercisable in connection therewith;

a int eels

-8-

Marketable record title as defined by the statute means a title of

record, as indicated in Section 5301.48 of the Revised Code

which operates to extinguish such interest and claims, except,

those set forth in Revised Code Section 5301.53, existing prior to

the effective date of the root of title, as is stated in Section

5301.50 of the Revised Code.

Asher Litman’s predessor in title acquired title to the tract in

question by a 1907 deed which conveyed a fee simple absolute

with no restrictions or encumbrances. Using this as the root of

title. the option provisions in the 1906 deeds are interests which

existed prior to the effective date of petitioners root of title and

would therefore be extinguished unless the options come within

Section 5301.53. The Ohio Supreme Court determined that the

options were ‘exercisable in connection’’ with the mineral estate

and came within Section 5301.53. This was clearly error.

Respondent introduced no evidence that it intended to mine any

the coal under the Litmans’ property in the near future. Instead

respondent has indicated that it intends to construct a belt line

across petitioners’ land to transport coal from other lands not

appurtenant to petitioners’ property. Since respondent has

constructed a belt line across petitioners’ property, but does not

intend to mine the coal under petitioners land until some un-

determined future date it cannot possible be said that the use of

the surtace land will be exercised in connection with the mineral

estate. Therefore. the interest the options supposedly gave the

respondent in petitioners’ land does not come within Section

531.53. but instead comes within Section 5301.48 and is ex-

tinguished. The holding of the Ohio Supreme Court in this regard

was gross and obvious error.

Il. This writ should be granted by this Court because of the

public importance of determining the merits of this case.

Many property owners in the coal mining regions of this

country have clauses in their deeds similar to the clauses in the

Litmans’ deeds. As the price of coal increases, coal compamies

will be increasingly be attempting to take advantage of these

invalid provisions. These companies cannot be allowed to exercise

orivate eminent domain, which is what occurs when a state

-9-

enforces these invalid provisions.

To allow the ruling of the Ohio Supreme Court to stand not

only works a denial of due process as far as the Litmans are

concerned, but it also subjects other land owners similarly

Situated to great uncertainty as to the actual ownership of their

land. The owners’ ability to convey their land is also severely

restricted because of the validity the Supreme Court has given

these void clauses. If the Court grants this writ the uncertainty as

to the validity of these and similar provisions can be decided. and

the restrictions on alienation that these invalid provisions impose

can be removed.

CONCLUSION

For all the above reasons the petitioners pray that this

Honorable Court grant this Writ of Certiorari.

Respectfully submitted

Allan Sherry

SHERRY & YOSS

115 North Main Street

Woodstield. Ohio 43793

Attorney for Petitioner

-10-

APPENDIX A

IN THE COURT OF COMMON PLEAS OF MONROE

COUNTY. OHIO

QUARTO MINING COMPANY.

Plaintiff,

v. No. 17.672

ASHER LITMAN.

Defendant.

MEMORANDUM OF DECISION

QUARTO MINING COMPANY,

Plaintiff,

v. No. 17,673

JUANITA LITMAN,

Defendant.

HODDINOTT, J.:

Plaintiff in these cases seeks conveyance of 1.32 acres

from defendant Asher Litman and 1.568 acres from his

wife, the defendant Juanita Litman. The land forms a

strip across the Litman farm. It would be used for an

overhead belt line to carry coal from the mine openings

not on the Litman lands to loading docks on the Ohio

River, for an electric power line, for a road to serve the

belt line, and for other uses in mining coal.

Plaintiff owns recoverable coal under a huge tract

including the Litman lands, together with certain mining

rights. The company ’’s first predecessors in title acquired

ownership and rights in the two tracts in 1906. The

mining rights in the Asher Litman coal include:

_all rights and privileges necessary and useful in the

ERE BARE ALENT IE ROL ISN ROOT EEE: GREE LE Te

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mining and removing of said coal ... Any surface

ground required for ... roads ... may also be taken ...

but shall be paid for ... at the rate of $100 per acre,

which payment shall thereupon entitle the grantee,

his heirs and assigns, to a deed in fee ... Also the ex-

clusive rights of way for the purpose of ... transporting

the coal of other lands through the mines and

openings in, upon and over the said lands of the

grantor.

The mining rights in the Juanita Litman coal are similar:

all necessary or convenient rights of way, on the

surface ... for the purpose of removing and tran-

sporting said coal, and also the coal under other lands

and to at pleasure place, maintain ... on the surface ...

all structures, machinery deemed necessary or con-

venient to the operation of the mines, ... and said

grantees are also given the option to at pleasure buy

and require a like conveyance of the surface ... at the

price of $200 per acre.

The coal and these rights are now owned by plaintiff after

two series of conveyances.

What the company proposes to do on the Litman lands

is necessary and useful and convenient in obtaining and

transporting the coal. Plaintiff has rights of way for this

purpose and power to acquire the rights of way in fee after

paying the prescribed prices.

These rights have been a matter of public record for

more than 65 years, the conveyances in the chains of title

have referred to them, and they are encumbrances on the

Litman’s land. Mining technology has changed materially

since then, but the general nature of plaintiff's operation,

judging from the language of the mining rights, was

anticipated. The situation was entirely different in the

case of Franklin v. Callicoat ,119 N.E. 2d 688 (1954) where

similar mining rights were held not to cover removing the

si2>

entire surface in a strip mining operation. In that case.

specific provisions in the deed necessarily implied that the

surface of the land would generally be perserved.

The power included in the mining rights in question to

purchase portions of the surface for specified purposes at a

stated price per acre is not void for being contrary to the

rule against perpetuities. Courts have held that the right

to purchase is not a bare option. which presumably would

be barred. Rather. it is an integral part of the bundle of

rights which vested in the owner of the coal when it was

conveyed separately from the surface. That is the law in

this appellate district. Hatcher National Coal Company.

Belmont County Court of Appeals (1924). To the same

effect are Powhatan Mining Company vt. Lysien. Belmont

County Common Pleas Court, No. 10907 (1946) and

North American Coal Corporation v. Rucker, Monroe

County Common Pleas Court, No. 16437 (1964).

Courts in other jurisdictions, apparently without ex-

ception, have refused to apply the rule against per-

petuities to this common pattern of mining rights, in-

cluding the right to purchase at a prescribed price. 61 Am.

Jur. 2d, Perpetuities, etc. Sec. 51, page 53; Chicago W. G

F. Coal Company v. Herr, 40 F. Supp. 311;Post v. Bailey,

110 W. Va. 504. 159 S.E. 524; Buck v. Walter, 115 Minn.

239, 132 N.W. 205.

Plaintiff is entitled to the relief prayed for and is

requested to prepare a judgment entry. submit it to

defendants’ counsel for approval as to form and then

submit it to this Court for journalization.

Merle Huddinott

Judge

ot8-

APPENDIX B

STATE OF OHIO, MONROE COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

QUARTO MINING COMPANY,

PLAINTIFF-APPELLEE,

-vs-

ASHER LITMAN,

DEFENDANT-APPELL ANT.

QUARTO MINING COMPANY,

PLAINTIFF-APPELLEE,

-¥3-

JUANITA LITMAN,

DEFENDANT-APPELLANT.

Case No. 465

FIRST OPINION

Case No. 466

APPEARANCES.

Thornburg & Furbee, St. Clairsville, Ohio, and Thomas &

Thomas, Bridgeport, Ohio, for Plaintiff-Appellee.

Allan Sherry, Woodsfield, Ohio, for Defendants-

Appellants.

Hon. Joseph Donofrio,

Hon. John J. Lynch,

Hon. Joseph E. ONeill, JJ.

Dated: November 14, 1973

Grace Marten,

Court of Appeals Reporter,

Mahoning County Courthouse,

Youngstown, Ohio.

» t6«

TOPIC INDEX

Mines and minerals — Ownership of minerals

severable — Interests. rights and easements of owner of

minerals — Easement. nature and characteristics —

Perpetuities statute — R.C. 2131.08 (A)— Option to

purchase surface land needed for mining operations is not

prohibited if exercised within period provided by RC.

2131.08 A — Application of 2131.08 A) when no iife

can be taken as measure.

SYLLABUS

1. An easement “implies necessary 4 fee in another. and

it follows that it isa right,by reason of such ownership. to

use the land for a special purpose, and one not inconsistent

with the general property in the land of the owner of the

fee. his property rights, however, to be exercised in such

way as not to unreasonably interfere with the special use

for which the easement was acquired. Cincinnati, Hamilton &

Dayton Railway Co. v. Wachter, 70 Ohio St. 113 at page 118.

2. A provision in a deed conveying title to coal which

grants the right to purchase as much of the surface of the

land as is needed for mining operations at a stipulated

price is not an easement but is an option to purchase real

estate.

3. When the right to purchase as much of the surface

land as is needed for mining operations for a stipulated

price is part of the rights incidental to mining operations

specifically conveyed in a deed, such right is not

prohibited by R.C. 2131.08 (A) if exercised within the

period provided by such statute. If such right to purchase

surface land is not exercised within the period provided by

R.C. 2131.08(A), such right is prohibited by R.C. 2131.08

(A).

4. If no life can be taken as a measure for R.C. Section

2131.08 (A), the maximum period is twenty-one years.

Ree s Tle ae PILL EAL SG TINS ATES REE OSL EEE BIE MEY SY TEN TENT LEI Y

et ets oh Lod

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LYNCH, P.J.

These two cases were consolidated for hearing on ap-

peal because the same legal principles are applicable to

both cases.

Defendant, appellant herein, in both cases is appealing

the order of the trial court that defendant, Asher Litman,

executed and deliver a deed for 1.320 acres of his land to

plaintiff for $132.00; that defendant, Juanita Litman,

execute and deliver a deed for 1.568 acres of her land to

plaintiff for $313.60, and that both defendants are en-

joined from interfering with plaintiff in using and oc-

cupying such land for the purpose of mining and tran-

sporting coal belonging to plaintiff.

Defendants, Asher Litman and Juanita Litman, are

husband and wife, but each have title to separate, ad-

joining parcels of real estate. Asher’s parcel of real estate

consists of approximately eleven acres and Juanita’ parcel

consists of approximately seven acres.

The parcels of land owned by the two defendants,

which were ordered by the trail court to be conveyed to

plaintiff form a strip across both parcels. They are to be

used for an overhead belt line, for an electric power line,

and for an access road along the belt line (R. 13, 24).

Plaintiff owns coal under a considerable tract, including

the property owned by both defendants, together with

certain mining rights. It plans to open a new mine to mine

this coal and to build an overhead belt line to transport

the coal from the mine openings to loading docks on the

Ohio River. The mine openings are not located on the

property of either defendant (R. 9, 13). Plaintiff even-

tually plans to mine the coal under the property of both

defendants, but it will be many years in the future before

this is done (R. 33-34).

The record established that plaintiff has title to the coal

in the Pittsburgh No. 8 seam underlying the property of

both defendants; that such coal is about two hundred and

-16-

eight feet from the surface, and that such qoal can

only be mined by means of a mine slope or deep mining

(R. 22, 33-34).

Plaintiff's first predecessors in title acquired ownership

and rights in such coal! in the two tracts by separate deeds

in 1906. Both excepted the surface or hill top vein. The

mining rights of both deeds are set out as follows:

Asher Litman tract:

. Together with all the rights and privileges

necessary and useful in the mining and removing of

said coal. including the right of mining the same

without leaving any support tor the overlying strata,

and without any liability tor any injuries which may

result to the surface from the breaking of said strata,

the right of ventilation and drainage and of access to

the mines for men and materials; the shafts or

openings for ventilation and drainage however, to be

in the ravines and waste places upon said lands and not

nearer than twenty rods of the principal buildings

thereon. Any surface ground required for shafts or

openings, or machinery, ways, toads, houses for

employees, etc. may also be taken by the grantee, his

heirs or assigns, but shall be paid for before being

occupied at the rate of One Hundred Dollars per acre.

which payment shall thereupon entitle the grantee,

his heirs or assigns, to a deed in fee for the same. Also

the exclusive rights of way for the purpose of mining,

ventilating, draining and transporting the coal of

other lands through the mines and openings in, upon,

and over the said lands of the grantor.”

Juanita Litman tract:

“Together with all necessary or convenient rights of

way on the surface and under it for the purpose of

approaching, mining, removing and transporting said

coal, and also the coal under other lands and to at

-17-

pleasure, place, maintain remove and replace on the

surface or under it all fixtures, structures, machinery

and appliances deemed necessary or convenient to the

operation of the mines and to do all things required to

air and drain the workings through the surface of said

lands and to erect and maintain on the surface poles

and wires for electrical power and also the power to

mine and remove all of said coal with or without

having support to the surface of said lands with a

waiver by the grantors of all damages whatever for

any injury to the surface or to water courses or roads

or ways by reason of the mining and removal of said

coal and said grantees are also given the option to at

pleasure’ buy and require a like conveyance of the

surface exclusive of buildings at the price of Two

Hundred Dollars per acre payable in cash when

conveyed.”

The record indicates that the first attempt to exercise

the mining rights granted in the 1906 deeds was in 1972

The transfers of title in the chain of title of both defen-

dants excepted the coal and mining rights necessary and

useful in mining and removing the same from this and

other lands without reference to the option to the pur-

chase of needed surface land for mining purposes at

stipulated prices.

We agree with the finding of the trial court that the

rights of way across the property of both defendants which

it seeks to obtain in this lawsuit is necessary for the

mining and transportation of its coal that it is attempting

to mine.

Defendants filed four assignments of error which they

contend prohibits the plaintiff from securing the subject

land for the following reasons:

1. The 1906 agreements violate R.C. 2131.08, which is

the statute against perpetuities.

Ae

2. If such agreements do not violate R.C..2131.08, they

are executory contracts which are barred by R.C. 2305.06.

3. If title to any surface land vested in plaintiffs

predecessors in title because of the 1906 deeds, defendants

now own such property by adverse possession.

4. The 1906 deeds do not sufficiently describe the

property to be conveyed so as to comply with R.C.

1335.05, which is the statute of frauds.

It has long been established that the ownership of

minerals may be severed from the ownership of the

surface of such property. 37 Ohio Jurisprudence 2d 15,

Mines and Minerals, Section 12.

If the ownership of the minerals has been created by an

absolute conveyance, the owner of the minerals has an

estate in fee as long as the land contains such minerals as

were conveyed to him, with an easement in the balance of

the estate until the mine is exhausted. The conveyance of

the minerals and serverance of the ownership carry the

rights to enter and remove the minerals, together with

the right to use so much of the surface as may be

reasonably necessary for that purpose unless the language

of the conveyance by which the minerals are acquired

repels such construction. The owner of the minerals may

employ all reasonable means and appliances necessary to

the proper working of the mine and the obtaining of the

minerals. 37 Ohio Jurisprudence 2d 18-19, Mines and

Minerals, Section 14.

A person cannot have an easement in his own land.

When an easement is created, the fee of the land remains

in the owner. 18A Ohio Jurisprudence 2d 431, Section 4.

In Cincinnati, Hamilton & Dayton Railway Co. v.

Wachter, 70 Ohio Street, 113 at page 118, the court stated

as follows:

“An easement implies necessarily a fee in another,

and it follows that it is a right, by reason of sucb

-19-

ownership. to use the land for a special purpose, and

one not inconsistent with the general property in the

land of the owner of the fee, his property rights.

however. to be exercised in such way as not tc

unreasonably interfere with the special use for which

the easement was acquired.”

R.C. 5301.53 provides, in part. as follows:

“The provisions of sections 5301.47 to 5301.50, in-

clusive. of the Revised Code. shall not be applied:

‘(E) To bar or extinguish anv right. title. estate. or

interest in and to minerals. and any mining or other

rights appurtenant thereto or exercisable in con

nection therewith; ...”’

R.C. 2131.08 (A) provides. in part, as follows:

“(A) No interest in real or personal property shall be

good unless it must vest. if at all. not later than

twenty-one years after a life or lives in being at the

creation of the interest.”

We hold that the conveyance of the coal in both deeds in

question in this case together with the other mining

rights with the exception of the right to purchase needed

surface land at stipulated prices vested at the time of the

deeds in 1906 and are not barred by either R.C. 2131.08.

2305.06 or 1335.05.

We further hold that a provision in a deed conveying

title to coal which grants the right to purchase as much of

the surface of the land as is needed for mining operations

at a stipulated price is not an easement but is an option to

purchase real estate.

The question then is whether such option violates R.C.

Section 2131.08.

No reported Ohio case has come to our attention that is

in point on this question.

However, former members of this Court had this

-20-

question before it in the unreported case of Hatcher t

The National Coal Company trom Belmont County,

which was decided January 3. 1924. the facts of which are

as follows:

On July 10, 1917. in consideration of $15,024.50

Hatcher sold and conveyed all of the Pittsburgh or No. 8

vein of coal to defendant, together with certain mining

rights and privileges including the following provision:

‘Said grantee its successors and assigns, shall have the

mght to purchase at any time so much of said land as

may be necessary tor railroad and in’ mining,

manutacturing and marketing said coal at the price of

$100 per acre. upon receipt of which payment. the said

grantor. his heirs and assigns, agree to deliver a deed

in fee for the same.

Subsequent to December 22, 1920, the detendant of

fered the sum of $100.00 per acre for 7.79 acres of land tor

the purpose of building a railroad and mining and

marketing the coal on Hatcher’ property. Plaintiffs

brought an action to restrain defendant from using the

surface of the 7.79 acres on the basis that the foregoing

agreement violated the rule against perpetuities in Ohio.

This Court held that the defendant elected to take the

7.79 acres and to pay the required amount theretor within

the period fixed by General Code Section 8622, which was

a predecessor to R.C. 2131.08, therefore the provisions of

such statute were not violated. Our Court speatically

stated that the effect of the above quoted provision of the

coal deed if no election was made within the period

provided by General Code Section 8622, was not deter

mined. We approve of the conclusion of the former members of

this Court that under the circumstances of the Hatcher case, the

paragraph relating to the occupation and purchase of the surface

of the land for mining purposes did not violate the statute against

perpetuities.

The unreported case of Belmont County Common Pleas

-2)-

Court Case No. 10907. entitled Powhatan Mining

Company: Lysien. deaded July 17,1946, has been called

to our attention: however, the deed conveving the coa!

provided for the payment ot $200.00 per acre ter all

surtace lands used tor mining purposes. Thus. this was 4

stipulated payment for the exercise ot the easement

granted by the convevance rather than an option to

purchase such land at a stipulated price.

The unreported case of Monroe County Common Pleas

Court Case No 1o437. entitled North American Cows

Company: Ructer is similar to the Lysien case. In our

opinion neither the Lv sten case nor the Rucker case are in

point with the instant case

The case ot Barton t) Thaw. 246 Pa. 448.92 Atlant

Reporter 312.15 similar in tacts to the instant case The

coal and other minerals underlying the land were con

veyed by deed dated in IS81, and the case was decided in

1914. The deed contained the tollowing provision:

“And in case the said parties of the second part. therr

heirs of assizns. Should at any future time whatsocver

desire to purchase any of said land in tee simple. then

the said parties of the tirst part. tor themselves. their

heirs or assigns, hereby convenant and agree to sell

and convey the same to the said parties ot the second

part, their heirs or assigns, at a price not exceeding

one hundred dollars per acre.”

This option to purchase the surtace land was never

exercised, and the case arose on an action to remove a

cloud on the title of the surtace property. The Supreme

Court of Pennsylvania held that the right to purchase the

surface land contained in the above provision was an

option to purchase. which under its terms could be

exercised at any time in the future, and was void under

the rule against perpetuities. The Court further held that

where an event on which an estate is to arise is an option

to purchase, which is so uncertain that it may expire at

ees ee

some time in the future or may not expire at all. the in-

terest created at the option is not “vested” but is “con-

tingent” and within the rule against perpetuities. In the

opinion of this case. the court ated authorities for the

principle that when no life can be taken as a measure for

the rule against perpetuities, the perpetuity period 1s

twenty-one years.

There is a difference between the Barton case and the

instant case in that the right to purchase in the instant

case is conditioned on the need of the property to be

purchased for mining operations, whereas this is not

clearly apparent in the Barton case.

The case of Chicago. Wilmington G Franklin Coal Co.

t Herr, 40 F. Supp. 311, held that:

“Under Illinois law .a deed conveying coal. oil and gas

and the right to mine and remove them and to use so

much of the surface as grantee might deem necessary,

and providing that surface of the land should be paid

for. when taken, at rate of $50 per acre. was not

Violauve ot rule against perpetuities’.”

The conveyance of mineral rights was in a deed dated in

1905 and the case was decided in 1941. We recognize that

this case is authority for the principle that an option to

purchase as much of the surface of the land as is needed for

mining operations at a stipulated sum does not violate the

rule against perpetuities even though exercised after the

period provided by such rule.

In Buck v. Walker, 115 Minn. 239, 132 N.W. 205, the

Minnesota Supreme Court held than an exception in a

deed of all minerals in the land conveyed, and a reser-

vation of the exclusive and perpetual right of the grantor,

his heirs and assigns, to enter on the lands to explore for

and remove such minerals on payment to the owners of

the land of the damages thereto by reason of such mining

operations, or, at the grantor’s option, on the payment of

«23.

an amount not to exceed $30 per acre for the land which

would be injured therby, and to take a conveyance

thereof, do not create a perpetuity, nor unreasonably

restrict the grantee’s use and alienation of his interest in

the land, and are valid.

However, the conveyance of mineral rights was in

deeds dated in 1903 and the Buck case was decided in

1911; therefore, the case was decided within the period

provided by the statute against perpetuities. We agree

with the result in this case, although we disagree with the

implications of the case that the option to repurchase the

land extended beyond the period provided by the statute

against perpetuities.

In Post v. Bailey, 110 W. Va., 504, 159 SE. 524, the

West Virginia Supreme Court of Appeals held that a

provision in a deed conveying coal underlying the

grantor '’s land which provides that if the grantee desires to

construct and maintain railroads, tramways, tipples,

houses, or permanent improvements on any part of the

grantor'’s land, the grantee should pay the sum of $40.00

per acre for every acre so used and occupied, does not

violate the rule against perpetuities, since any rights

granted by such provision vested at the time the deed took

effect, although such rights may not be exercised im-

mediately. The conveyance of coal rights was in a deed

dated in 1900 and the Post case was decided in 1931.

However, our interpretation of the Post case is that the

payment of $40.00 per acre was the stipulated con-

sideration for the easement granted for constructing

permanent improvements on the surface land when

needed for the mining of such coal rather than an option to

purchase such surface estate. If our interpretation is

correct , we agree with the result and reasoning of the Post

case.

We hold that when the right to purchase as much of the

surface land as is needed for mining operations for a

a.

stipulated price is part of the rights incident to mining

specifically conveyed in a deed, such right is not

prohibited by R.C. 2131.08 (A) if exercised within the

period provided by such statute. (See R.C. 2131.08 (C) ). If

no life can be taken as a measure for such statute, the

maximum period is twenty-one years.

We further hold that if such right to purchase surface

land is not exercised within the period provided by R.C.

2131.08 (A), such right is prohibited by R.C. 2131.08 (A).

The exercise of the right to purchase surface land is the

acquisition of the title of such surface land rather than use

of an easement. If no limit is placed on the exercise of such

right. it could be exercised 100, 500, or 1,000 years after

such right was granted. Such right would seriously

restrict the use to which such surface property could be

used and would affect the alienability of such property for

an indefinite period of time. The use and value of the

property would generally change considerably in a 66

vear period which has elasped since the grant of the option

to purchase to plaintiff's predecessors in title and the

exercise of its option to purchase such property. We

recognize the importance of the coal industry, and its need

for certain mining rights to mine the coal that it owns.

However, the owner of the surface has rights that also

must be recognized. We conclude that the exercise of an

objection to purchase surface land for mining purposes

beyond the period provided by R.C. 2131.08 (A) would

violate the public policy purposes of such statute.

In the instant case, the record does not reveal the

identity of any person whose life can be taken as a

measure, therefore, the maximum period during which

the option in this case could be exercised expired in 1927

and was void thereafter. Since plaintiff did not exercise

the option to purchase until 1972, the option was void at

that time.

We feel that defendant’s contention that the option of

. -

defendant to purchase as much of the surface of the land as

is needed for mining operation for a stipulated price is an

executory contract that would be barred after fifteen years

pursuant to R.C. 2305.06 has merit; however, no

authority has been cited on this question, and it is un-

necessary to decide this question because of our decision

on the application of R.C. 2131.08.

We feel that defendant’s contentions as to adverse

possession and the application of R.C. 1335.05 have little

merit, but it is unnecessary to decide these questions

because of our decision on the application of R.C. 2131.08.

_ We hold that the trail court’s orders that defendant,

Asher Litman, execute and deliver a deed for 1.320 acres

of his land to plaintiff for $132.00 and that defendant,

Juanita Litman, execute and deliver a deed for 1.568 acres

of her land to planitiff for $313.60 is error, and we reverse

the judgment of the trail court to this extent.

Plaintiff still has an easement over the property of both

defendants for the transportation of coal of other lands

over the property of both defendants. However, neither

counsel for the parties in this case briefed the question

whether plaintiff's easement rights over the property of

both defendants includes an overhead belt line planned by

plaintiff. Because of this, this case is continued pending

receipt of briefs from both parties.

Judgment of Monroe County Common Pleas Court

that defendant, Asher Litman, execute and deliver a deed

for 1.320 acres of his land to plaintiff for $132.00 and that

defendant, Juanita Litman, execute and deliver a deed for

1.568 acres of her land to plaintiff for $313.60 reversed.

Case continued on question whether plaintiff’

easement rights over the property of both defendants

includes an overhead belt line planned by plaintiff pen-

ding receipt of briefs from both parties.

Donofrio, J., Concurs.

ONeill, J., Concurs.

APPROVED:

John J. Lynch

Judge

RT RR RI ROMS SI Ee ENTE: 5 8 ONTO

-27-

APPENDIX C

STATE OF OHIO, MONROE COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

QUARTO MINING COMPANY,

[ PLAINTIFF-APPELLEE,

“sn

ASHER LITMAN,

DEFENDANT-APPELLANT.

QUARTO MINING COMPANY,

PLAINTIFF-APPELLFE,

ue

JUANITA LITMAN,

DEFENDANT-APPELLANT.

Case No. 465

N SECOND AND FINAL OPINION.

f Case No. 466

APPEARANCES.

Thornburg & Furbee, St. Clairsville, Ohio, and Thomas &

Thomas, Bridgeport, Ohio, for Plaintiff-Appellee.

Allan Sherry , Woodsfield, Ohio, for Defendants-Appellants.

-28-

Hon. Joseph Donofrio,

Hon. John J. Lynch,

Hon. Joseph E. O'Neill, JJ.

Dated: January 23, 1974.

Grace Marten,

Court of Appeals Reporter,

Mahoning County Courthouse,

Youngstown, Ohio.

TOPIC INDEX.

Easement right of way of transporting coal from other

lands - Overhead belt line - Electric power transmission

line.

SYLLABUS

A deed conveying coal in place and rights of way for

transporting coal, including coal under other lands, over

the surface of the granted tract when the express and im-

plied terms of the grant to the mineral owner permitted

whatever use of the surface overlying the coal which might

be reasonably necessary or useful in the mining of such coal

as well as coal under other lands allows the owner of

mineral rights to locate and erect an overhead belt line

for the transportation of such coal over the

surface land of the granted tract.

LYNCH, P. J.

Since our first opinion both sides have submitted briefs

on the question of whether plaintiff's easement rights over

the property of both defendants includes on overhead belt

line planned by plaintiff and we had another hearing on

January 9, 1974 on this question.

oS —

Ox... =

- 29-

The two deeds executed in 1906 both granted general

rights of way for transporting coal, including coal under

other lands, over the surface of defendants’ properties

without any designation as to any specific mode of tran-

sportation.

In all probability, the overhead belt line planned by

plaintiff was not generally used in mining operations in

1906, thus it could not have been specifically contemplated

by the parties to the deeds in question.

However, the deed in the Asher Litman tract grants “all

the rights and privileges necessary and useful in the mining

and removing of said coal”, and the deed in the Juanita

Litman tract grants “all necessary or convenient rights of

way’.

We overrule defendants’ contentions that R. C. Section

5301.53 (E) is limited to mining rights appurtenant to the

coal under the surface of the land and that plaintiff's

easements on defendants’ properties have been terminated

by adverse possession.

No case concerning an overhead beltline has been called

to our attention. However, there are cases in point con-

cerning electric power transmission lines.

In Creasey v. Pyramid Coal Corporation, 116 Ind. App.

124,61 N. E. 2d 477, the court held that a deed executed in

1905 conveying the coal in place and all surface rights

reasonably necessary to the mining of such coal and coal

under adjoining lands permitted the grantees’ successor in

title to construct and maintain across the surface of the

granted tract a high voltage electric transmission pole line

necessary for safe, effecient mining of coal under such land

and under adjoining and other land. The court pointed out

that since the use of electricity for mine operations in 1905

was unknown, the fact that such high voltage electric

transmission pole line was not specifically enumerated

among the rights granted raised no implication that such

use was meant to be excluded, and that under the express

-30-

and implied terms of the grant the mineral owner might

make whatever use of the surface overlying the coal which

might be reasonably necessary in the mining of coal from

adjoining and other lands. :

In Case v. Elk Horn Coal Corporation, 210 Ky. 700, 276

S. W. 573, the court held that a deed executed in 1908

conveying the right to use surface land and to erect any

buildings. machinery or equipment that it deemed

necessary or convenient for the mining of all minerals

permitted the location and construction of an electric power

transmission line on such property. The court stated that

unless this power was exercised “oppressively, arbitrarily,

wantonly. or maliciously”, the owner of the surface land

could not complain. Case v. Elk Horn Coal Corporation,

supra, was followed in Trivette v. Comsokdation Coal, Co.,

2% Ky. 529, 177 S. W. 2d 868.

We hold that a deed conveying coal in place and rights of

way for transporting coal, including coal under other lands,

over the surface of the granted tract when the express and

implied terms of the grant to the mineral owner permitted

whatever use of the surface overlying the coal which might

be reasonably necessary or useful in the mining of such coal

as well as coal under other lands allows the owner of

mineral rights to locate and erect an overhead belt line

necessary for the transportation of such coal over the

surface land of the granted tract.

Therefore. plaintiff's easement rights over the property

of both defendants includes the overhead belt line planned

by plaintiff, an electric power line and an access road along

the belt line.

The complete holding of this court is now as follows:

Judgment of Monroe County Common Pleas Court that

defendant. Asher Litman, execute and deliver a deed for

1.320 acres of his land to plaintiff for $132.00 and that

defendant, Juanita Litman, execute and deliver a deed for

1.568 acres of her land to plaintiff for $313.60 reversed.

-3)]-

Defendants. Asher Litman and Juanita Litman. are enjoved

from interferring with Plaintiff exercising its easement

rights over their Property to locate and erect an overhead

belt line. an electric power line and an access road along the

belt line.

Donofrio. J.. Concurs.

ONeill. J.. Concurs.

APPROVED:

JOHN J. LYNCH

PRESIDING JUDGE.

o 22s

APPENDIX D

MINING CO. v. LITMAN.

Statement of the Case

Quarto Mining Co.. Appellant. v. Litman, Appellee.

Quarto Mining Co.. Appellee. V. Litman, Appellant.

(Cite as Quarto Mining Co. v. Litman (1975),

42 Ohio St. 2d 73)

Real property—Deed to mining rights—Option to purchase

overlying surfact estate—Uniimited in time—Not void as

restraint on alienation, when—Option appurtenant to

mineral estate—Limited in use—Construction of overhead

belt system—Contracts—Specific performance—

Discretionary with court.

A land purchase option which is appurtenant to a mineral estate

and is limited to the necessary and reasonable use of the

overlying surface estate for the exercise of mining rights. is a

vested part of the mineral estate and is not void as a restraint

upon alienation, although unlimited in time.

(Nos. 74-251 and 74-316—Decided April 16, 1975.)

Appeals from the Court of Appeals for Monroe County.

This cause involved actions for specific performance of mining

rights granted to Quarto Mining Company, plaintiff herein, as

successor in interest under the deeds to two parcels of land owned

by Asher and Juanita Litman, defendants herein. Plaintiff is

Ee TNS AWWA in Aa) RT SPE PR IO Se ON on

22

3A +

engaged in mining coal in Monroe County. Ohio. and is the

owner of 51,700 acres of the Pittsburgh or No. 8 vein of coal.

within the county. The coal under the surface lands owned by the

defendants was conveyed by deed to the plaintiff's predecessor in

title in 1906, along with grants of mining rights. rights of way for

the purpose of transporting coal both from the defendants” land

and from other lands, and options to purchase the surface land for

prices of $100 per acre of the Asher Litman tract. and $200 per

acre of the Juanita Litman tract. Defendants’ tracts of land lie in a

valley near the Ohio River. and plaintiff seeks to operate an

overhead conveyor belt across defendants’ lands which would

transport coal from a mine entrance on other lands to loading

docks on the Ohio River. The total length of the conveyor belt

line would be approximately 5.000 feet. and it would be used to

transport about 3.2 million tons of coal a year. It would pass

across defendants” lands at a height of from 25 to 32 feet. sup-

ported by columns affixed to the land and accompanied by electric

power transmission lines and an access road.

The Court of Common Pleas held that the options to purchase

were ‘‘an integral part of the bundle of rights which vested in the

owner of the coal when it was conveyed separately from the

surtace,"’ and were thereofer not subject to the rule against

perpetuities. The court also found the proposed belt line to be

“necessary and useful and convenient in obtaining and tran-

sporting the coal,’” and therefore ordered the conveyance to the

plaintiff of 1.32 acres from the Asher Litman tract and 1.568

from the Juanita Litman tract, upon payment of the prices

speictied in the deeds.

Appeals were taken to the Court of Appeals. In its *‘First

Opinion’’ on November 14, 1973, the court reversed the

judgments of the Court of Common Pleas and found the

provisions in defendants’ deeds void by virtue of the rule against

perpetuities, but found that plaintiff had an easement over

defendants’ lands. Accordingly, the Court of Appeals continued

the cases on the question of whether plaintiffs easement included

an overhead belt line. In its ‘Second and Final Opinion’’ of

BR

January 23, 1974, the court found that plaintiff's easement did

extend to the construction and operation of an overhead belt line,

electric power transmission lines, and an access road along the

belt line. Both plaintiff and defendants appealed the judgments of

the Court of Appeals, and the cause is now before this court

pursuant to the allowance of motions to certify the record.

MINING CO. v. LITMAN.

Opinion, per STERN, J.

Messers. Sherry & Yoss and Mr. Allan Sherry, for Asher and

Juanita Litman.

Messers. Thormburg G& Furbee, Mr. Carter Thornburg,

Messers. Thomas & Thomas and Mr. Harold B. Thomas, for

Quarto Mining Company.

Stern, J. The dispute in these cases is between the owner of

recoverable coal and of mining rights to the coal, and the owners

of the surface land overlying that coal. Plaintiff seeks to obtain

title or use of a strip of defendants’ lands in order to construct a

belt line to transport its coal, under the provisions of two 1906

deeds: defendants claim that the rights to use of the surface

estates granted by those deeds are void.

The relevant provisions of the 1906 deeds are that plainuff may

take surface ground required for mining purposes, including

ground for the purpose of transporting the coal of other lands, and

that the plaintiff may require the conveyance of the surface

ground taken at specified prices. '

1 The deed in the Asher Litman tract granted ownership of a specified

vein of coal. and contained the following provision:

“***Together with all the rights and privileges necessary and useful

in the mining and removing of said coal, including the right of mining

the same without leaving any support for the overlying strata, and

without any liability for any injuries which may result to the surface

from the breaking of said strata, the right of ventilation and drainage

and of access to the mines for men and material; the shafts or openings

for ventilation and drainage however, to be in the ravines and waste

EIT SR MAR RNS AUT LONE ATONE NE MRL PS CAI CONUS ree ON ME TP NOUS rk A ie gt

OA aes tase

=

The trial court and the Court of Appeals found that the

proposed use of the surface land was necessary and useful for

plaintiff's mining operations, and that finding is not di by

defendants. The essential issue, as it was prescxted to the trial

court, was whether an option, without time limitation, to

purchase surface ground necessary for the exercise of mining

rights granted incident to the sale of the underlying coal was

specifically enforcable, or was void by reason of the rule against

perpetuities as a restraint against alienation. Our resolution of

that issue makes it unnecessary to consider other issues raised in

the Court of Appeals.

place upon said lands and not nearer than twenty rods of the principal

buildings thereon. Any surface ground required for shafts or openings,

or machinery, ways, roads, houses for employees, etc. may also be taken

by the grantee, his heirs or assigns, but shall be paid for before being

occupied at the rate of one hundred dollars per acre, which payment shall

thereupon entitle the grantee, his heirs or assigns, to a deed in fee for the

same. Also the exclusive rights of way for the purpose of mining, ven-

tilating, draining and transporting the coal of other lands through the

mines and openin

gsin,upon, and over the said lands of the grantor.***”

The deed to the Juanita Litman tract contained the following

provisions:

“* * * Together with all necessary or convenient mghts of way on

the surface and under it for the of approaching. mining. re-

moving and transporting said coal, at also the coal under other lands

and to at pleasure, place, maintain, f ve and replace on the surface

>

Sp BiB essa AEE pot bee EP AIG FREI:

aie

4-

The fundamental purpose of the rule against perpetuities, as it

developed in common law, was to prevent restrainst on the

alienation of property which might be perpetual or unreasonably

long, while permitting restraints limited within the strict period

of the rule, in recognition of a property owner’s rights to the use

and disposition of his property. The complexities of the common -

law rule are familiar to every first-year law student, although full

understanding of its application and logic is no doubt a rare

achievement.

A bare option exercisable outside the period of the rule is

generally held to be void as an unreasonable restraint upon

aliention. London & South Western Ry. Co. v. Gomm (1882), L.

R., 20 Ch. D. 562; 3 Simes and Smith, The Law of Future In-

terests (2 Ed.), 156-163, Section 1244; Annotation, 162 A. L.

R. 581.

As the courts have recognized, an option to purchase land can

be a severe restraint on the free alienability of property. The

fundamental defect of a perpetual option is that the right to

alienate the property is divided into two roughly equivalent in-

terest, and these interests may be so antagonistic as to effectively

prevent the transfer of a fee simple estate. Where a definite option

price is stated, an efiective ceiling price is imposed on the

property, above which no one may, with safety, purchase the

property ; the holder of the option in such case holds the effective

power to alienate. Development and improvement of the property

may thereby be severely retarded, for the existence of the option

threatens the developer with loss of the profit from his efforts if

the option is exercised. The possibility of fluctuation in land

values and in the buying power of the dollar must further render

imponderable the safety of any purchase of property encumbered

by an option.

Because of this potential for the indefinite suspension of the

*‘practical’’ power of alienation, and because the exercise of the

option is so likely to depend upon changes in market valne and

Tevel of development of the property over time, the courts have

eee en

-37

generally held such an option to be a non-vested contigent

equitable interest in property, subject to the rule against per-

petuities. As one commentator has said: ‘The law would be in a

chaotic state with respect to this particular problem if current

fluctuating market prices were to be the criteria for determining

the validity of long-term options in gross. It must be conceded

that the market price of land has ever-present potentialities for

change. That being the case, it also follows that the long-term

land purchase option which expresses a fixed amount as to the

price to be paid upon its being exercised may possibly bring about

a restraint upon the practical power of alienating the optioned

land. ***”* Berg. Il Long-Term Options and the Rule Against

Perpetuities, 37 Cal L. Rev. 235, 267.

However, the same objections do not apply to all forms of

options, and the courts have excepted certain types of options not

considered to fall within the rule. Thus. courts have generally

held that an option to purchase land is valid as a part of a long-

term lease of that land. Keogh v. Peck (1925), 316111. 318. 147

N. E. 266; Hollander v. Central Metal & Supply Co. (1908). 109

Md. 131.71 A. 442. Annotation, 162 A. F.R. 581. 599.

The Restatement similarly holds such option to be outside the

tule. 4 Restatement of the Law, Property, 2326, Section 395. The

reason for excepting options contained in leases, aside from the

complexities of the common-law rule, is that the practical benefits

of enabling the actual user of the property to acquire full title

justifies such an exception, especially in commercial leases. 4

Restaurant of the Law, Property, supra, Comment a. Further.

the actual interest of a long-term lessee in the property which he

leases is one of substantial value and is of itself a significant

restraint upon alienability value and is of itself a significant

restraint upon alienability, so that the addition of an option term

to the provisions of a lease does not greatly affect alienability,

where the option is limited to the lease term. Certainly an option

term in a lease does not restrain alienability in any greater than

~ covenants for renewal of the lease, to which the rule does not

apply. See Hollander v. Central Metal & Supply Co., supra (109

_ Md. 131). Realistically, in long-term commercial leases, the

ia nhl I a i Sta I A Scag SOL St OS IE, PE TERE

-38-

granting to the lessee of an option to purchase is more likely to act

‘as an aid, rather than a hindrance, to alienability , since the long

term occupant of the property is thereby able to convey both the

lease and the fee estate, and thus is more likely to encourage

development and improvement of the property.

A similar problem is posed by options for the purchase of a part

of an overlying surface estate, granted as a part of a mineral

estate. The courts have uniformly considered such options to be

vested in possession as a part of the mineral estate where the

option does not in face act as a restraint upon alienation.

In Buck v. Walker (1911), 115 Minn. 239, 132 N. W. 205,

the property owner sold the surface estate, but reserved mining

rights and the ownership of any minerals. The deed provided that ,

if mining activities injured or destroyed the land or any buildings

or improvements therean, the owner of the mining rights should

pay to the property owner “‘all reasonable and proper damages

occasioned by such mining operations; or, at the option of the

*** (owners of the miming rights), they may demand a con-

veyance to themselves of such portion of said lands as they may

designate in writing from time to time, and at a price not ex-

ceeding thirty dollars per acre of the lands so designated***.’’

The court held that this provision was not void for uncertainty or

because it created a perpetuity, because the option was

*** * * simply an incident to the exercise by the grantor of his right

to explore and remove the minerlas, an alternative provision, at

the election of the grantor, in place of the agreement to pay the

actual damages. It begins and ends with the exercise by the

grantor of his right to explore for and remove the minerals.’’ (115

Minn., at 246.) The court considered the option right to be an

incident to the mineral estate alienable as a part of that estate, and

therefore held the option to be valid under the Minnesota rule

against perpetuities, which provided that no interest in land be

inalienable beyond the limitation of two lives in being at the

creation of the estate.

In Threlkeld v. Inglett (1919), 289 Ill. 90, 124.N. E. 368, the

Supreme Court of Illinois upheld an option in a deed which

-39-

provided for the taking of such portion of the surface land as

necessary for the purpose of the mining rights conveved. t> be

paid for at $150 per acre plus the full cash value of any permanent

improvements. The court held that this option was only 4 means

to attain the fruits and effects of the mining rights to the property.

and as such was not subject to the rule against perpetuities. As

the court. at page 97, stated: *'** * the deed. when made. wouid

not only pass the coal, oil and gas. with the nght to mine and

remove the same. but also the right to enter upon and use ©

much of the surface for the land as might be necessary tc the

enjoyment of the property and rights conveyed. and the

agreement was merely that the land taken for such use shou:d be

paid for. when located. at the rate of $150 an acre. It was aot

within the rule against perpetuities.” See. also. C/iccec.

Wilmington G Franklin Coal Co. v. Ford (C. A. 7. 1943 . 123 F.

2d 610.

The rationale of those cases is that the use of the surface estate

is a necessary incident to the use and enjoyment of an underlying

mineral estate. as the courts have long recognized. and that the

taking of a part of the surface estate necessary for mining. by

means of an option. is a reasonable incident to the mineral estate.

Indeed, the requirement that necessary property taken for mining

be conveyed and paid for may protect the property owner trom

uncompensated use of his property. Since mining rights include

necessary uses of the surface such as the sinking of shafts. rights

of way above and below the surface, use of the land for the

housing of miners, and other uses, an option which requires

payment for actual use of the surface does not render the surtace

estate to any greater degree inalienable, where the option is

limited to the exercise of those mining rights. The option. in tact.

prevents an uncompensated taking for use under an easement.

Other courts have held options in mineral deeds to be void. but

in each of these cases the option was exercisable either for pur-

poses other than mining, or for a use which was not necessary for

mining.

In Barton v. Thaw (1914), 246 Pa. 348, 92 A. 312. the

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- 40 -

Supreme Court of Pennsylvania held that an option to purchase

land for $100 per acre, unlimited in time , was void under the rule

against perpetuities. Although the option was contained in a deed

which conveyed the coal and other underlying minerals , the court

considered the option to be exercisable independently of the

muning rights. As the court, at page 358, stated:

‘****The event upon which the estate is to arise, to wit, the

acceptance of the option to purchase, is uncertain, being un-

confined as to limit of time. The interest created by this option

therefore is not vested, but contingent, and is within the mule

against perperpetuities. Ix that respect this case differs from one

where the owner of land conveys the coal thereunder, with

general mining rights and the right to use surface for mining

purposes, as in Dewey v. Great Lakes Coal Company, 2% Pa.

498, ***. Ina case like that the rights are conveyed by deed and

vest immediately. There a present fixed right of future enjoyment

is conveyed, although the right of enjoyment may not be exer-

cised immediately.’ (Emphasis added.)

In Rocky Mountain Fuel Co. v. Heflin (1961), 148 Cobo. 415,

366 P. 2d 577, an action to quiet title, the deed had been con-

veyed subject to the reservation of mineral rights, and contained

an option to repurchase any part of the surface necessary to carry

on mining operations, and up to 30 acres ‘“for housing facilities,

in carrying on mining operations,’’ for $25 per acre. The

Supreme Court of Colorado relied upon Barton v. Thaw, supra,

in holding that the option was void under the common-law rule

against perpetuities, stating, at page 422, that:

***** the right to repurchase any 30 acres in the reservation is

a right to reacquire the complete estate or fee in all the acreage

which the Fuel Company might at some undetermined time in the

future elect to take. Such a taking goes far beyond any interest in

the minerals and amounts to a naked option in so far as it exceeds

the interest which might be connected with the mineral estate.

The reservation to repurchase, therefore, violates the common

law against perpetuities.’’

The judgment in that case leaves undecided the question of

oi} »

whether a more limited option would be held valid. but the

language of the court indicates that if such an option were limited

to the necessary and reasonable use of the mineral estate. it wouid

be considered a vested part of the rights making up the mineral

estate. and would be valid.

Middleton v. Western Coal and Mining Co. (D.C.W.D. Ark.

1965), 241 F. Supp. 407. was also a suit to quiet title. A 1904

deed had conveyed the coal and other minerals to detendant.

along with mineral rights. The deed provided that the defendant

could at any time elect to take the surface for an amount to be

agreed upon by the parties. or in default of an agreement. by

binding arbitration. The option was independent of the mining

rights granted by the deed. and was exercisable at the discretion of

the grantee and its successors or assigns. The court relied on

Barton v. Thaw. supra, in holding that the option was in effect a

grant of a contingent interest in the surface in fee. unlimited in

time and thus void under the common-law rule against per-

petuities. Since the option in that case was exercisable solely at

the discretion of the grantee, for purposes not limited to the

mining rights granted in the deed, the court’s decision was

clearly correct under the general rule that such options are invalid

as restraints upon alienation.

The decisions of the West Virginia courts are not completely

clear on this issue, but do appear to follow the general rule that an

option is valid where limited to surface property necessary for the

use of the mineral estate. In Post v. Bailey (1931). 110 W. Va.

504, 159 S. E. 524, an option which permitted the owner of

underlying coal to purchase areas of the surface at $40 per acre to

be used for coal mining facilities was held to be valid. The court

held the option to be a vested right to the use of the surface.

because the right to use parts of the surface sufficient for mining

had been acquired appurtenant to the purchase of the underlying

coal. The effect of the option, the court stated, at page 510. ‘‘was

therefore merely to fix a price of $40 per acre to be paid for the use

of so much of the surface as might be employed by the grantee and

his assigns under the provisions of the deed.’’

-42-

However, in West Virginia-Pittsburgh Coal Co. v. Strong

(1947), 129 W. Va. 832, 42 S. E. 2d 46, the Supreme Court of

Appeals held an option provision void. The court, at page 842,

characterized the opinion in the Post case as concerning ‘‘the

distinction between a covenant granting mining rights together

with the right to the use of the surface to be paid for at an agreed

price and the right to acquire the title to the land itself***.’’ That

distinction is not strictly correct, since the option of the Post case

was for the purchase of title to the surface, and not merely

payment for use. However, the option provision struck down by

the court was apparently not limited to purchase of surface land

necessary for mining , but permitted purchase of all land overlying

the vein of coal, and the plaintiff was seeking to exercise the

option in order to strip mine, which the court found exceeded the

mining rights granted by the deed.

A single principle is expressed in all of the above cases: A bare

option to purchase land which is unlimited as to time is void as an

impermissible restraint upon alienation, but an option which is

appurtenant to a mineral estate and is limited to the necessary and

reasonable use of the overlying surface estate for the exercise of

mining rights is a presently vested part of the mineral estate, and is

not void as a restraint upon alienation.

This principle is consistent both with the legal relationship

between a surface estate and an underlying maineral estate, and

_ with the realities of mining practice. The mining of a deposit

inevitably requires some use of the surface for the sinking of

shafts, rights of way for removal of the minerals, and other such

uses dependent upon the type of mining operation. Unless the

language of the conveyance by which the minerals are acquired

repels such construction, a severed mineral estate is considered to

include those rights to use of the surface as are reasonably

necessary for the proper working of the mine and the obtaining of

the minerals. 37 Ohio Jurisprudence 2d 19, Mines and Minerals,

Section 14; Harper v. Jones (1946), 49 Ohio Law Abs. 289, 74

N. E. 2d 397. Similarly, the owner of the land has the right to

subjacent support, and any conveyance or waiver of this right

a PUIG: PORES PELL PILE GRE IEE III OIE IE

—— eer So

43»

must clearly appear in the instrument conveying the estate. Ovio

Collieries Co. v. Cocke (1923), 107 Ohio St. 238, 140 N. E. 356.

The owner has the right to enjoy the land free from annoyance .

except such as reasonably arises from the need to exercise the

mining rights of the mineral estate. Harper v. Jones, supra. at

294.

In our recent decision , Skivolocki v. East Ohio Gas Co. (1974),

38 Ohio St. 2d 244, the issue was also that of the relationship

between a surface estate and the underlying mineral estate. The

mining rights granted in the deed conveying the mineral estate

were similar to those in the instant case, and included an option.

““*** that for any and all surface used by the grantee. its suc-

cessors and assigns. it or they shall pay at the rate of fifty dollars

per acre."” This court held that the option did not give an

unqualified right to use the surface, and specifically did not give

gramee the right to strip mine. As we said. at page 248: ‘‘***

(W)e cannot ignore the additional fact that strip mining, although

similar to deep mining insofar as both represent a means to a

legitimate end, necessarily and unavoidably causes total

disruption of the surface estate. Time-honored rules of law.

meant to insure the mutual enjoyment of severed mineral and

surface estates, cannot be blindly applied to resolve a question

involving the right to strip mine.***”’

We also noted the legal principle, cited in 54 American

Jurisprudence 2d 389, Mines and Minerals, Section 210. that.

““*** unless the language of the conveyance by which the

minerals are acquired repels such construction, the mineral estate

carries with it the right to use as much of the surface as may be

reasonably necessary to reach and remove the minerals,’’ and

commented :

‘*This implied right of the mineral owner is best explained as a

practical attempt to insure that both he, and the surface owner.

can enjoy their respective estates. To construe the “right to use’

as including the right to strip mine would be to pervert the basic

purpose of a principle designed to mutually accommodate the

owner of the mineral estate and the owner of the surface estate in

-44-

the enjoyment of their separate properties.

The holding in Skivoloki recognized that strip mming causes

the total disruption of the surface estate, and is therefore in

fundamental conflict with the general rule that owners of the

respective estates are entitled to the enjoyment and reasonable use

of those estates. As we said. at page 251, **because strip mining

is totally incompatible with the enjoyment of a surface estate. a

heavy burden rests upon the party seeking to demonstrate that

such right exists.”

In the instant cases. the taking is limited to necessary use of

the surface estate for deep mining. and the use is for a mining

right specifically included in the deed, namely. the night to use

the surface to transport coal from other lands. In Skolocki, we

specifically recognized the validity of surface rights granted in-

cident to a mineral estate, and the same principles require

recognition of the mining rights granted by the deed in these

cases. The options in these deeds provide only that the use of the

surface necessary for the exercise of granted mining rights may be

effected by payment and conveyance of necessary parts of the

surface. This is a reasonable commercial arrangement, par-

ticularly in view of the length of time needed to explore and

acquire contiguous blocks of territory for operation of a deep coal

mine, an operation which may continue for serving decades. It is

an arrangement which does not in any way create an option

exercisable beyond the mining rights granted by deed. and im-

poses no greater restraints upon the property than would an

easement. See Moore v. Indian Camp Coal Co. (1907), 75 Ohio

St. 493. 80 N. E. 6.°

We therefore reverse the judgments of the Court of Appeals

which held these options to be void.

eee?

2 Because the options in the instant cases do not act as a restraint

against alienation. and do not fall within the scope of the common-law

rule against perpetuties. we need not decise the extend to which the

common-law rule was in effect in 1906, the date of the original con

veyances herein.

SINE EAL STOEL AEGON IE LIE LOE BIO LEME RSS SEL SOE LA LEE LAID PG ELT BT ON OE ETE RS MTOM EF

BONES

-45-

I-

Defendants raise three other defenses to specific performance of

the mining-right clauses in their deeds.

Defendants first claim that the conveyance is too uncertain in

its description of the land to be conveyed, relying upon King v.

Bordner (1901), 65 Ohio St. 86. However, the provision herein

clearly complies with the requirement in Bordner, for “‘it

contains the essential terms of the agreement expressed with such

clearness and certainty that they may be understood from the

memoramdum itself* **.’° Defendants’ reliance upon Schmidt v.

Weston (1948). 150 Ohio St. 293, is also misplaced. No claim is

made as to any discrepancies or deficiencies in the descriptions

contained in the defendants’ deeds, and in Schmidt v. Weston,

supra, at 299, the court stated that “‘if the agreement upon

which the action is brought or some memorandum or note thereof

in writing signed by the party to be charged therewith identifies

the parties and their respective obligations and the land in

question, courts will apply such terms and descriptions even

though parol evidence or evidence aliunde is necessary for the full

understanding of the terms and descriptions set forth ***.”’

The right of way granted for use of the surface to transport coal

from other property is also not extinguished by the Marketable

Title Act (R. C. 5301.47 et seg). R. C. 5301.53 (E) specifically

states that the Marketable Title Act does not apply ‘‘to bar or

extinguish any right, utle. estate or interest in and to minerals,

and any mining or other rights appurtenant thereto or exercisable

in connection therewith. ° Defendants argue that the use of the

beltline to transport coal mined primarily from other lands is not

‘appurtenant. However that may be. the proposed use is

clearly ‘*exercisable in connection ° with the mineral estate, for

the belt line may be used to transport coal from that estate as well

as coal trom other property.

The right to use of the surface is also not barred by R. C.

2305.06. A cause of action for conveyance of the property did not

accrue until the surface was needed for the exercise of grantee’s

mineral rights.

- 46 -

III

The present actions are for specific performance, seeking the

conveyance of real property. Specific performance of a contract is

a distinctively equitable remedy. Commrs. of Muskingum County

v. State (1908), 78 Ohio St. 287, 305, 85 N. E. 562.

As this court said in Spengler v Sonnenberg (1913), 88 Ohio

St. 192, 203: ***** Specific performance of contracts is a matter

resting in the sound discretion of the court, not arbitrary, but

controlled by principles of equity. on full consideration of the

arcumstances of each particular case.”

Although we find the option provisions in the Litman deeds to

be valid. the circumstances of the instant cases make proper the

exercise of the principles of equity.

The provisions in the Litman deeds required payments of $100

and $200 per acre for any land conveyed to the grantee. These

provisions date from 1906, and the changes in the purchasing

power of the dollar, the likelihood of changes in the level of

development and value of the property, and the simple fact that

almost 70 years have passed since these deeds were written are all

factors indicating that the 1906 prices cannot be conclusive.

Although those prices might have expressed the intent of the

parties at that time, and for a reasonable time thereafter, it is

most unlikely that such prices are at present equitable, in light of

widespread economic changes. ‘‘Depreciation of the currency or

other medium of payment contracted for has frequently been held

to justify the court in withholding specific performance, or at

least conditioning it upon payment of the actual value of the

property contracted for. ***’’ 71 American Jurisprudence 2d

120, Specific Performance, Section 88.

In the instant cases, unless the parties agree on a price for the

property to be conveyed, the trial court should condition the

granting of specific performance upon ghe payment of the actual

value of the property sought by plaintiff.

Judgments reversed.

O'Neill, C. J., Herbert, Corrigan, Celebrezze, W. Brown and

P. Brown, JJ., concur.

sao

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iT

APPENDIX E

AMENDMENT XIV

UNITED STATES CONSTITUTION

Section 1. All persons born or naturalized in the United States.

and subject to the jurisdiction thereof. are citizens of the United

States and of the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or immunities

of citizens of the United States: nor shall any State deprive any

person of life. liberty. or property, without due process of law:

nor deny to any person within its jurisdiction the equal protection

of the laws. i

Section 2. Representatives shall be apportioned among the

several States according to their respective numbers, counting the

whole number of persons in each State. excluding Indians not

taxed. But when the right to vote at any election for the choice of

electors for President and Vice President of the United States.

Representatives in Congress. the Executive and Judicial officers of

a State, or the members of the Legislature thereof, is denied to

any of the male inhabitants of such State, being twenty-one vears

of age, and citizens of the United States, or in any way abridged.

except for participation in rebellion, or other crime, the basis of

representation therein shall be reduced in the proportion which

the number of such male citizens shall bear to the whole number

of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in

Congress, or elector of President and Vice President, or hold any

office, civil or military, under the United States, or under any

State, who having previously taken an oath, as a member of

Congress, or as an officer of the United States or as a member of

any State legislature, or as an executive or judicial officer of any

State, to support the Constitution of the United States, shall have

engaged in insurrection or rebellion against the same, or given aid

or comfort to the enemies thereof. But Congress may by a vote of

two-thirds of each House, remove such disability.

- 48 -

Section 4. The validity of the public debt of the United States.

authorized by law, including debts incurred for payment of

pensions and bounties for services in suppressing insurrection or

rebellion , shall not be questioned. But neither the United States

nor any State shall assume or pay any debt or obligation incurred

in aid of insurrection or rebellion against the United States. or

any claim for the loss or emancipetion of any slave; but all such

debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by ap-

propriate legislation, the provision: of this article.

USC 28 Section 1275 State courts; appeal; certiorari

Final judgments or decrees rendered by the highest court of a

state in which a decision could be had, may be reviewed by the

Supreme Court as follows:

(1) By appeal, where is drawn in question the validity of a

treaty or statute of the United States and the decision is against its

validity.

(2) By appeal, where is drawn in question the validity of a

statute of any state on the ground of its being repugnant to the

Constitution, treaties or laws of the United States, and the

decision is in favor of its validity.

(3) By writ of certiorari, where the validity of a treaty or

statute of the United States is drawn in question or where the

validity of a State Statute is drawn in question on the ground of its

being repugnant to the Constitution, treaties or laws of the

United States, or where any title, right, privilege or immunity is

specifically set up or claimed under the Constitution , treaties or

Statutes of, or commission held or authority exercised under, the

United States. June 25, 1948, C 646, 62 Stat. 929.

Ohio Revised Code Section 2305.06 Contract in writing

An action upon a specialty or an agreement, contract, or

promise in writing shall be brought within fifteen years after the

cause thereof accrued.

SO OEE RENE: ULI MAIS Te. RIE pNEH BS 2s BA 2 eA EE ae

-49-

MARKETABLE TITLES

Ohio Revised Code Section 5301.47 Definitions

As used in section 5301.47 to 4301.56, inclusive, of the

Revised Code:

(A) *‘Marketable record title’’ means a title of record, as

indicated in section 5301.48 of the Revised Code, which operates

to extinguish such interests and claims, existing prior to the

effective date of the root of title, as are stated in section 5301.50

of the Revised Code.

(B) “‘Records’’ includes probate and other official public

records, as well as records in the office of the recorder of the

county in which all or part of the land is situate.

(C) **Recording’’, when applied to the official public records of

the probate or other court, includes filing.

(D) **Person dealing with land’’ includes a purchaser of any

estate or imterest therein, a mortgage, a levying or attaching

creditor, a land contract vendee, or any other person seeking to

acquire an estate or interest therein , or impose a lien thereon.

(E) “Root of title’? means that .comveyance or other title

transaction in the chain of title of a person, purporting to create

the interest claimed by such person, upon which he relies as a

basis for the marketablity of his title, and which was the most

recent to be recorded as of a date forty years prior to the time

when marketability is being determined. The effective date of the

“root of title’’ is the date on which it is recorded.

(F) **Title transaction’’ means any transaction affecting title to

any imteresi in land, including title to any interest in land, in-

cluding title by will or descent, title by tax deed, or by trustee’s

assignee’s, guardian’s, executor’s, administrator’s, or sheriff’s

deed, or decree of any court, as well as warranty deed, quit claim

deed, or mortgage.

Ohio Revised Code Section 5301.48 Unbroken chain of recorded

title.

a se A a ae

- 50-

Any person having the legal capacity to own land in this state,

who has an unbroken chain of title of record to any interest in

land for forty years or more, has a marketable record title to such

interest as defined in section 5301.47 of the Revised Code,

subject to the matters stated in section 5301.49 of the Revised

Code.

A person has such an unbroken chain of title when the official

public records disclose a conveyance or other title transaction, of

record not less than forty years at the time the marketability is to

be determined, which said conveyance or other title transaction

purports to creat such interest, either in:

(A) The person claiming such interst; or

(B) Some other person from whom, by one or more con-

veyances or other title transactions of record, such purported

interest has become vested in the person claiming such interest ;

with nothing appearing of record, in either case, purporting to

divest such claimant of such purported interest.

Ohio Revised Code Section 5301.50 Prior Interests.

Subject to the matters stated in section 5301.49 of the Revised

Code, such record marketable title shall be held by its owner and

shall be taken by any person dealing with the land free and clear of

all interests, claims, or charges whatsoever, the existence of

which depends upon any act, transaction, event, or omission that

occurred prior to the effective date of the root of title. All such

interests, claims, or charges, however denominated, whether

legal or equitable, present or future, whether such interests,

claims, or charges are asserted by a person sui juris or under a

disability, whether such person is within or without the state,

whether such person is natural or corporate, or is private or

governmental, are hereby declared to be null and void.

Ohio Revised Code Section 5301.53 Certain rights not barred.

The provisions of sections 5301.47 to 5301.56, inclusive, of

-$51-

the Revised Code, shall not be applied:

(A) To bar any lessor or his successor as reversioner of his right

to possession on the expiration of any lease or any lessee or his

successor of his rights in and to any lease ;

(B) To bar or extinguish any easement or interest in the nature

of an easement created or held for any railroad or public utility

purpose ,

(C) To bar or extinguish any easement or interest in the nature

of an easement, the existence of which is dearly observable by

physical evidence of its use;

(D) To bar or extinguish any easement or interest in the nature

of an easement, or any rights granted, excepted, or reserved by

the instrument creating such easement or interest, including any

rights for future use, if the existence of such easement or interest

is evidenced by the location beneath, upon, or above any part of

the land described in such instrument of any pape, valve, road,

wire, cable, conduit, duct, sewer, track, pole, tower, or other

physical facility and whether or not the existence of such facility

is observable ;

(E) To bar or extinguish any right, title, estate, or interest in

and to minerals, and any mining or other rights appurtenant

thereto or exercisable in connection therewith;

(F) To bar or extinguish any mortgage recorded in conformity

with section 1701.66 of the Revised Code ;

(G) To bar or extinguish any right, title, or interest of the

United States, or of the state of Ohio, or any political subdivision ,

body politic, or agency thereof.

«$9

APPENDIX F

USC 28, Section 1257 State Courts: appeal: certiorari

final judgments or decrees renered by the highest

court of a state in which a decision could be had. may

be reviewed by the Supreme Court as follows:

(1) By appeal, where is drawn in question the validity

of a treaty or statute of the United States and the

decision is against its validity.

(2) By appeal, where is drawn in question the validity

of a statute of any state on the ground of its being

repugnant to the Constitution, treaties or laws of the

United States, and the decision is in favor of its

validity.

(3) By writ of certiorari, where the validity of a

treaty or statute of the United States is drawn in

question or where the validity of a state statute is

drawn in question on the ground of its being

repugnant to the Constitution, treaties or laws of the

United States, or where any title, right, privilege or

immunity is specially set up or claimed under the

Constitution, treaties or statutes of, or commission

: held or authority exercised under, the United States.

4 June 25. 1948, C 646, 62 Stat. 929.

EEL PINS E PRIETO GE TONE ILE LRG IS PEGE GLE OME DIRE LOL GLYN NOSE HI RENEE FE