WEST virginia Legislature
2017 regular session
By
[
to the Committee on Energy then the Judiciary.
A BILL to repeal §55-12A-3,
§55-12A-6, §55-12A-7, §55-12A-8 and §55-12A-9 of the Code of West Virginia,
1931, as amended; and to amend and reenact §55-12A-1, §55-12A-2, §55-12A-4 and §55-12A-5
of said code, all relating to the procedure for claiming abandoned mineral
interests; creating a procedure to quiet title to abandoned mineral interests
by serving notice on a mineral rights owner; and requiring the filing of an
affidavit with the county clerk within sixty days thereafter.
Be it enacted by the
Legislature of West Virginia:
That §55-12A-3, §55-12A-6,
§55-12A-7, §55-12A-8 and §55-12A-9
of the Code of West Virginia, 1931, as amended, be repealed; and that §55-12A-1, §55-12A-2,
§55-12A-4 and §55-12A-5 of said code be amended and reenacted, all to
read as follows.
ARTICLE 12A. LEASE AND CONVEYANCE OF MINERAL INTERESTS
OWNED BY MISSING OR UNKNOWN OWNERS OR ABANDONING OWNERS.
§55-12A-1. Legislative intent.
It is the intent of the Legislature in empowering the
circuit courts of the state, as provided by this article to facilitate
development of coal, oil, gas, and other minerals, as part of the public policy
of the state, by removing certain barriers to such development caused by
interests in minerals owned by unknown or missing owners or by abandoning
owners.
§55-12A-2. Definitions.
As used in this article, the following definitions shall
apply:
(1) "Abandoning owner" means any person, vested
with title to any interest in minerals, who is proved to have abandoned the
interest, that is, to have relinquished any right to possess or enjoy the
interest with the expressed intention of terminating ownership of the interest,
but without vesting the ownership in any other person.
(2) "Claim" means any affidavit or other
information filed with the county clerk, pursuant to this article, to assert a
mineral interest.
(2) (3) "Development of
the minerals" or "mineral development" means: (a) Mining coal by
any method; or (b) drilling for and producing oil or gas by conventional
techniques, or by enhanced recovery by injection of fluids of any kind into the
producing formation; or (c) utilization of a gas-bearing formation as an
underground gas storage reservoir within the meaning of article nine, chapter
twenty-two of this code; or (d) production of other minerals by any method.
(3) (4) "Interest in
minerals Mineral interests" means any interest, real or
personal, in coal, oil, gas or any other mineral, for which interest the
property taxes are not delinquent as of the date of the filing of a petition
under this article.
(4) (5) "Surface
owner" or "owner of the surface" means any person vested
with any interest in fee in the surface estate overlying the particular
minerals sought to be developed under this article. A surface owner's rights under this article
shall be subject to any deed of trust or other security instrument, lien,
surface lease, easement or other non possessory interest in the surface owned
by any other person; but such persons other than the surface owner shall have
no right to notice and no standing to appear and be heard hereunder.
(5) (6) "Unknown or
missing owner" or "holder" means any person, vested with
title to any interest in minerals, whose present identity or location cannot be
determined from the records of the clerk of the county commission, the sheriff,
the assessor and the clerk of the circuit court in the county in which the
interest is located or by diligent inquiry in the vicinity of the owner's last
known place of residence, and shall include such owner's heirs, successors and
assigns not known to be alive.
§55-12A-4. When court may appoint special
commissioner; persons authorized to institute proceedings Abandonment of
mineral interest and vesting in surface owner.
(a) If the title to any mineral interest is vested in an
unknown or missing owner or an abandoning owner and it is proved that the
development of the minerals would be advantageous to a prudent owner, and if it
appears that the development of the minerals furthers the public policy stated
in section one of this article, the circuit court of the county having
jurisdiction under section three of this article shall have the power to
appoint a special commissioner and authorize the special commissioner to sell,
execute and deliver a valid lease of the mineral interest on terms and
conditions customary in the area for the mineral interest to be leased. The lease shall continue in full force and
effect so long as there are operations under its terms unless the lease has
previously expired by its own terms.
(b) A petition to the circuit court for the appointment of a
special commissioner may be instituted by any person who is:
(1) Vested with an interest in fee in the surface estate
overlying the particular minerals sought to be developed; or
(2) Vested with an interest in fee in the particular minerals
sought to be developed; or
(3) The lessee or the assignee or successor to the lessee,
under a valid and subsisting mineral lease, the lessor of which is a person entitled
to file a petition by reason of subdivision (2) of this subsection.
Any mineral interest held
by any person, other than the surface owner of the lands subject to the
interest, shall be deemed abandoned and vested in the owner of the surface of
the lands subject to the interest if the requirements established in section
five of this article are satisfied and none of the following applies:
(1) The mineral interest is in coal, or in mining or other rights
pertinent to or exercisable in connection with an interest in coal. However, if a mineral interest includes both
coal and other minerals that are not coal, the mineral interests that are not
in coal may be deemed abandoned and vest in the surface owner.
(2) The mineral interest is held by the United States, this
state, or any political subdivision, body politic, or agency of the United
States or this state.
(3) Within the twenty years immediately preceding the date on
which notice is served or published under section five of this article, one or
more of the following has occurred:
(A) The mineral interest has been the subject of a title
transaction that has been filed or recorded in the office of the county clerk
of the county in which the lands are located.
(B) There has been actual production or withdrawal of
minerals by the holder from the lands covered by a lease to which the mineral
interest is subject, from a mine a portion of which is located beneath the
lands, or, in the case of oil or gas, from lands pooled, unitized, or included
in unit operations, in which the mineral interest is participating: Provided,
That the instrument or order creating or providing for the pooling or
unitization of oil or gas interests has been filed or recorded in the office of
the county clerk of the county in which the lands that are subject to the
pooling or unitization are located.
(C) The mineral interest has been used in underground gas
storage operations by the holder.
(D) A drilling or mining permit has been issued to the
holder, provided that an affidavit that states the name of the permit holder,
the permit number, the type of permit, and a legal description of the lands
affected by the permit has been filed or recorded, pursuant to any applicable
requirements of chapter twenty-two-c of this code, in the office of the county
clerk of the county in which the lands are located.
(E) A claim to preserve the mineral interest has been filed
in accordance with section five of this article.
(F) In the case of a separated mineral interest, a separately
listed tax parcel number has been created for the mineral interest in the
county assessor's tax list and the county treasurer's duplicate tax list in the
county in which the lands are located.
§55-12A-5. Persons to be joined as defendants; Contents of
verified petition claim; notice guardian ad litem.
(a) The person filing a
petition under this article shall join as defendants to the action all unknown
or missing owners or abandoning owners having record title to the particular
minerals sought to be developed, and the unknown heirs, successors and assigns
of all such owners not known to be alive. All persons not in being who might
have some contingent or future interest therein, and all persons whether in
being or not in being, having any interest, present, future or contingent, in
the mineral interests sought to be leased, shall be fully bound by the
proceedings hereunder.
(b) The petition shall
be verified. It shall contain allegations of the facts showing (1) the
entitlement of the petitioner to file the petition, (2) an identification of
the defendants and the mineral interest of each as far as practical under the
circumstances, (3) a description of the tract of land which is the subject of
the petition, (4) the interest in the particular minerals sought to be
developed, (5) the nature of the proposed development of the minerals, (6) the
efforts to locate unknown or missing owners, if any, (7) the relinquishment by
abandoning owners, if any, of any right to possess or enjoy their interest with
the expressed intention of terminating ownership of the interest, but without
vesting the ownership in any other person, (8) such other information known to
the petitioner which might be helpful in identifying or locating the present
owners thereof, and, as exhibits to the petition, (9) a certified copy of the
most recent recorded instrument embracing the interest to be leased, (10) such
additional instruments as are necessary to show the vesting of title to the
minerals in the last record owner thereof, and (11) a certified copy of any
competing lease or easement of record, that is to say, a lease or easement from
landowners who are not defendants, embracing all or part of the tract of land
which is the subject of the petition, for any mineral development by the lessee
or easement owner of record of the minerals sought by the petition; and the
petition may contain allegations of the facts showing that (12) mineral
development would be advantageous to the defendants and would further the
public policy stated in section one of this article; and the prayer shall be for
the court to order the sale of a lease covering the subject mineral interest
under section six of this article, and thereafter, in the case of any defendant
or heir, successor or assign of any defendant who does not appear to claim
ownership of the defendant's interest for seven years after the date of the
lease, for the court to order a conveyance of the defendant's mineral interest
under section seven of this article, subject to the lease, to the owner of the
surface overlying the mineral interest.
(c) If personal service
of process is possible, it shall be made as provided by the West Virginia rules
of civil procedure. In addition, immediately upon the filing of the petition,
the petitioner shall (1) publish a Class III legal advertisement in compliance
with the provisions of article three, chapter fifty-nine of this code, and (2)
no later than the first day of publication, file a lis pendens notice in the
county clerk's office of the county wherein the mineral estate or the larger
portion thereof lies. Both the advertisement and the lis pendens notice shall
set forth (1) the names of the petitioner and the defendants, as they are known
to be by the exercise of reasonable diligence by the petitioner, and their last
known addresses, (2) the date and record data of the instrument or other
conveyance which immediately created the mineral interest, (3) an adequate
description of the land as contained therein, (4) the source of title of the
last known owners of the mineral interests, and (5) a statement that the action
is brought for the purpose of authorizing the execution and delivery of a valid
and present mineral lease for development of the particular minerals described
in the petition, and thereafter, in the case of any defendant or heir,
successor or assign of any defendant who does not appear to claim ownership of
the defendant's interest within seven years after the date of the lease, for
the court to order a conveyance of the defendant's mineral interest under
section seven of this article, subject to the lease, to the owner of the
surface overlying the mineral interest. In addition, the petitioner shall send
notice by certified mail, return receipt requested, to the last known address,
if there be such, of all named defendants. In addition, the court may in its
discretion order advertisement elsewhere or by additional means if there is
reason to believe that additional advertisement might result in identifying and
locating the unknown or missing owners.
(d) The circuit court
shall appoint a guardian ad litem for any unknown or missing owner or
abandoning owner and their unknown heirs, successors and assigns not known to
be alive. The compensation and expenses of the guardian ad litem shall be fixed
by the court and paid by the petitioner under terms ordered by the court
(a) A claim to preserve a mineral interest from being deemed
abandoned under section four of this article may be filed for record by its
holder. The claim shall be recorded in
accordance with article one, chapter thirty-nine of this code, and shall
consist of a notice that does all of the following:
(1) States the nature of the mineral interest claimed and any
recording information upon which the claim is based;
(2) Describe the property and any covenants; and
(3) States that the holder does not intend to abandon, but
instead to preserve, the holder's rights in the mineral interest.
(b) A claim that complies with subsection (a) of this section
preserves the rights of all holders of a mineral interest in the same lands.
(c) Any holder of an interest for use in underground gas
storage operations may preserve the holder's interest, and those of any lessor
of the interest, by a single claim, that defines the boundaries of the storage
field or pool and its formations, without describing each separate interest
claimed. The claim is prima-facie evidence of the use of each separate interest
in underground gas storage operations.
(d) A mineral interest may be preserved indefinitely from being
deemed abandoned under section four of this article by the occurrence of any of
the circumstances described in subdivision three, subsection (a), section four
of this article, including, but not limited to, successive filings of claims to
preserve mineral interests under this section.
(e) Before a mineral
interest becomes vested under section four of this article in the owner of the
surface of the lands subject to the interest, the owner of the surface of the
lands subject to the interest shall do both of the following:
(1) Serve notice by certified mail, return receipt requested,
to each holder or each holder's successors or assignees, at the last known
address of each, of the owner's intent to declare the mineral interest
abandoned. If service of notice cannot
be completed to any holder, the owner shall publish notice of the owner's
intent to declare the mineral interest abandoned at least once in a newspaper
of general circulation in each county in which the land that is subject to the
interest is located. The notice shall contain all of the information specified
in subsection (f) of this section; and
(2) At least thirty, but not later than sixty days after the
date on which the notice required under subdivision (1) of this subsection is
served or published, as applicable, file in the office of the county clerk of
each county in which the surface of the land that is subject to the interest is
located an affidavit of abandonment that contains all of the information
specified in subsection (g) of this section.
(f) The notice required under subdivision (1), subsection (e) of
this section shall contain all of the following:
(1) The name of each holder
and the holder's successors and assignees, as applicable;
(2) A description of the
surface of the land that is subject to the mineral interest. The description
shall include the volume and page number of the recorded deed or other recorded
instrument under which the owner of the surface of the lands claims title.
(3) A description of the
mineral interest to be abandoned. The description shall include the volume and
page number of the recorded instrument on which the mineral interest is based.
(4) A statement attesting that nothing specified in
subdivision (3), subsection (a), section four of this article has occurred
within the twenty years immediately preceding the date on which notice is
served or published under subsection (e) of this section; and
(5) A statement of the
intent of the owner of the surface of the lands subject to the mineral interest
to file in the office of the county clerk an affidavit of abandonment at least
thirty, but not later than sixty days after the date on which notice is served
or published, as applicable.
(g) An affidavit of abandonment shall contain all of the
following:
(1) A statement that the person filing the affidavit is the
owner of the surface of the lands subject to the interest;
(2) The volume and page number of the recorded instrument on
which the mineral interest is based;
(3) A statement that the mineral interest has been abandoned
pursuant to subsection (a), section four of this article;
(4) A recitation of the facts constituting the abandonment;
and
(5) A statement that notice was served on each holder or each
holder's successors or assignees or published in accordance with subsection (e)
of this section.
(h)(1) If a holder or a holder's successors or assignees
claim that the mineral interest that is the subject of a notice under
subsection (e) of this section has not been abandoned, the holder or the
holder's successors or assignees, not later than sixty days after the date on
which the notice was served or published, as applicable, shall file in the
office of the county clerk of each county where the land that is subject to the
mineral interest is located one of the following:
(A) A claim to preserve the mineral interest in
accordance with this section; or
(B) An affidavit that identifies an event described in
subdivision three, subsection (a), section four of this article that has
occurred within the twenty years immediately preceding the date on which the
notice was served or published under subsection (e) of this section.
(2) The holder or the holder's successors or assignees shall
notify the person who served or published the notice under subsection (e) of
this section of the filing under this division.
(3) If a holder or a holder's successors or assignees who
claim that the mineral interest that is the subject of a notice under subsection (e) of this section
has not been abandoned fails to file a claim to preserve the mineral interest, files such a claim more than sixty
days after the date on which the notice was served or published under
subsection (e) of this section, fails to file an affidavit that identifies an
event described in subdivision (3), subsection (a), section four of this
article that has occurred within the twenty years immediately preceding the
date on which the notice was served or published under subsection (e) of this
section, or files such an affidavit more than sixty days after the date on
which the notice was served or published under that division, the owner of the
surface of the land subject to the interest who is seeking to have the interest
deemed abandoned and vested in the owner shall file in the office of the county
clerk of each county where the land that is subject to the mineral interest is
located a notice of failure to file. The notice shall contain all of the
following:
(A) A statement that the person filing the notice is the
owner of the surface of the lands subject to the mineral interest;
(B) A description of the surface of the land that is subject
to the mineral interest;
(C) The statement: "This mineral interest abandoned
pursuant to affidavit of abandonment recorded in volume, page "; and
(4) Immediately after the notice of failure to file a mineral
interest is recorded, the mineral interest shall vest in the owner of the
surface of the lands formerly subject to the interest, and the record of the
mineral interest shall cease to be notice to the public of the existence of the
mineral interest or of any rights under it.
In addition, the record shall not be received as evidence in any court
in this state on behalf of the former holder or the former holder's successors
or assignees against the owner of the surface of the lands formerly subject to
the interest. However, the abandonment and vesting of a mineral interest
pursuant this article only shall be effective as to the property of the owner
that filed the affidavit of abandonment under subsection (e) of this section.
(i) For purposes of a recording under this section, a county
clerk may charge a reasonable fee.
NOTE: The purpose of this bill is
to create a procedure to streamline the process to claim abandoned mineral
interests.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.