BRIEF OF AMICI CURIAE
TRUSTEES OF THE THOMAS E. PROCTOR HEIRS TRUST;
TRUSTEES OF THE MARGARET O.F. PROCTOR TRUST;
HOYT ROYALTY, LLC; AND THORNE HERITAGE RESOURCES, LLC
“…plaintiffs’ contention they have acquired title to the subsurface minerals because they have not been separately assessed for tax purposes is … without merit. Title to realty may not be acquired by payment of taxes.”
THOMAS v. OVIATT
5 Pa. D. & C. 4th 83 (1989)
No. 334 of 1988.
Common Pleas Court of Warren County, Pennsylvania.
July 18, 1989.
Thomas D. Heberle, for plaintiff.
Gregory J. Hammond, for defendants.
WOLFE, P.J., July 18, 1989.
Defendants have filed preliminary objections to plaintiffs’ amended complaint to quiet title.
The subject matter of dispute is the ownership of the oil, gas and minerals underlying plaintiffs’ 70-acre tract in Spring Creek Township. Plaintiffs’ complaint alleges they are the owners in fee of these premises and seek to quiet title thereto by reason of defendants’ claim to the oil, gas and minerals. The parties do not dispute the oil, gas and minerals were excepted in a prior conveyance to plaintiffs’ predecessor in title and that the oil, gas and minerals currently rest in defendants by virtue of a quitclaim deed on November 28, 1934. Likewise, the parties do not disagree plaintiffs have resided on the premises since 1953, and defendants have never exercised any drilling operations on the surface to extract the oil, gas and minerals. It is further not disputed plaintiffs entered into and recorded three separate oil and gas leases over a 23-year period. The leases were made for periods of 10 years, five years, and five years. Notwithstanding, there were never any drilling operations by the lessees of these leases.
It is plaintiffs’ contention they have acquired title to the OGM rights by virtue of adverse possession, evidenced by the recorded deeds which placed defendants on notice of plaintiffs’ claim as being open, hostile and notorious and existing for a period in excess of 21 years without defendants taking any action to the contrary. In turn, defendants argue it is totally insufficient to vest title in plaintiffs by reason of their contract in granting a lease which is recorded in absence of drilling activity on the surface. We agree.
We have found no cases, nor have there been any submitted to us by counsel in their respective briefs, addressing the issue of oil and gas; however, the case of Delaware & Hudson Canal Co. v. Hughes, 183 Pa. 66, 38 Atl. 568 (1897) supports defendants’ conclusion. In this case there was a severance of the coal from the surface. The court held the conveyance of the coal creates in the vendee an interest in land, and the recording of that interest gives notice to the world thereof of an estate in fee or any lesser estate, in the same manner as by the same words of grant made use of in conveyances of the surface. “When such a conveyance has been made of the coal or other mineral it works a severance of the estate so conveyed from the surface, and if the deed be recorded it is constructive notice to all the world of the fact of severance. Thenceforward the owner of the soil may cultivate, enclose and reside upon his estate for any length of time, but his possession will not extend below it. It will not grasp or affect in the slightest degree the estate below him which has been severed by the deed.”
It is now settled beyond argument, and the courts have not wandered from the stereotype definition of adverse possession, to-wit, the possession must be hostile, adverse, open, visible, notorious and continuous for a period of 21 years. Burns v. Mitchell,252 Pa.Super. 257, 381 A.2d 487 (1977). Plaintiffs’ contention, that plaintiffs intention to hold the subsurface for themselves, was manifested by the granting of the aforesaid three leases is woefully lacking in that one may not lose title to realty simply by one claiming a right thereto. If this were so, no estate would be free from attack and acquisition. Plaintiffs argue defendants could have, with due diligence, checked the indexes at the courthouse periodically to determine if there was any activity affecting their oil, gas and minerals. A property owner does not have to daily visit the Recorder’s Office to ascertain if one is making a claim for his property.
Finally, plaintiffs’ contention they have acquired title to the subsurface minerals because they have not been separately assessed for tax purposes is likewise without merit. Title to realty may not be acquired by payment of taxes.
Because it is not possible for plaintiffs to plea a better cause of action under these facts, we enter the following
And now, July 18, 1989, defendants’ demurrer to plaintiffs’ complaint to quiet title is granted.