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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 866

## Text

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

«Gs
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

IEEE SL ARB INR TALE OES TENN EIS LG TRIN IM SEE DS MR RN Wg NAM IIR Kea

+ &
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

-ll-

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

Ǥ%>
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1265%3A1. Public record. Not legal advice.