Surface owners can acquire rights to minerals under their property
</element><element id="paragraph-1" type="body"><![CDATA[As oil and gas companies have announced their intent to drill in southeastern Illinois in recent months, many in our area have taken an newfound interest in mineral rights issues.
Of particular interest is the issue of severed mineral rights, those whose owner is different than the surface owner. Some of those mineral rights may be abandoned due to the last owners being deceased or unable to be determined.
Surface landowners may not own mineral rights under their surface land and -- other than agreements of compensation for surface damage, possible rental agreements or court action -- have no influence over the work of a drilling company under the surface owner's land.
If the mineral rights owners are missing, surface owners in Illinois can use a legal procedure to gain control of the mineral rights through the Severed Mineral Interest Act.
The newspaper contacted an attorney familiar with the act, C. Mart Watson of Eldorado to explain the process.
"In this part of the country mineral rights were probably severed many years ago, in the '20s or '30s or years before. Over the years people die and maybe their heirs inherit the mineral rights and they move off, they die and things get divided up," Watson said.
The living generation may not know if they own or have inherited mineral rights. Also if people do not leave wills it makes determining an owner more problematic.
Watson described the process of the Severed Mineral Interest Act as fairly complicated to someone unskilled in navigating the court system and recommends landowners contact an attorney.
The entire process could take a year or could take seven years. It could also cost thousands of dollars in fees to attorneys, abstractors and court costs. The result is gaining ownership of the mineral rights and being able to allow or disallow mineral abstraction and to receive royalties from successful mineral abstraction.
The first step in determining who owns the mineral rights is to perform a title search at the courthouse or hire an abstractor or title searcher to perform it.
Once the most recent owner of record of the mineral rights is determined the surface owner or representative is to make a diligent effort to locate and contact the mineral rights owner and document the methods used to attempt to contact the owner.
If the attempt to contact is unsuccessful, the surface owner goes to court.
The surface owner files a petition in court naming the owner of record and unknown heirs along with documenting a diligent effort has been made to contact the owner. The petition will state the intent of the surface owner is to acquire the title to the mineral rights by adverse possession and cannot determine who or where the mineral rights owners are. Included in the petition is the legal description of the land which is provided by the abstractor.
After the petition is filed a legal notice to the mineral rights title owner is published in the newspaper a suit has been filed by the surface owner to acquire the title through adverse possession. The notice includes a date by which the mineral rights owner is to contact the surface owner. The notice is to be published for three consecutive weeks. Also the court will send a notice to the last known address of the last known mineral rights owner.
If the court determines the information is true that a diligent effort has been made to find the mineral rights owners and that owner has not come forward the court enters an order approving the petition.
If the mineral rights owner is a ward and not represented by a guardian the court will appoint a guardian to represent the interests of the missing mineral rights owner.
The next step is to wait, either one year or seven years for any owner to make contact.
If 20 years had passed between the time the mineral rights became severed and the time the surface owner petitioned the court the wait is one year. If the mineral rights became severed more recently than 20 year ago, the wait is seven years.
After the year or seven years have passed, the surface owner basically goes through the process all over again.
The surface owner or representative asks the court to declare the surface owner is the owner of minerals. The surface owner again attempts to contact the mineral rights owner, publishes the notice in the newspaper three more times and if the court determines all has been done properly with no mineral rights owner having come forward it may grant the deed to the mineral rights to the surface owner.
If the mineral rights owner comes forward at any point the case is dismissed.
The cost of the procedure is determined in a large part by the amount of time required to research court records, Watson said.
Title searches for minerals can be fairly expensive depending on how much digging through records an abstractor or title searcher must do. It could be the abstractor may have to research all the way back to when the real estate was first sold by the federal government.
Attorney fees are also a function of time involving reviewing and analyzing a title search for the individual who must be given notice, drafting necessary pleading for the court case as well as proper notices to be served or published.
There are also court costs and publication fees involved.
"It certainly can involve a few thousand dollars by the time it's said and done," Watson said.
In the case of drilling companies leasing severed mineral rights from missing owners -- as has been done in Saline County -- the surface owner could also wind up in control of the mineral rights if no missing owners are located.
If oil and gas explorations prove successful and the owner of the mineral rights is unknown, the companies are to set aside royalty payments for the minerals in a fund to go to the missing mineral rights owner. A trustee is appointed by the court to represent the interests of the missing mineral rights owner.
The surface owner could wind up owning the mineral rights and receiving royalties if seven years pass after the original judgement authorizing the drilling lease and no mineral rights owner has come forward during that time.
Under the statute after seven years the court-appointed trustee representing the still-missing mineral rights owner petitions the court to name the surface rights owner as an additional party to its drilling suit. If a surface owner appears and proves his title to the surface, the court is to convey title to the severed minerals to the owner of the surface.
The trustee is then to pay the remaining money, after fees and expenses to the surface owner.
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DeNeal receives e-mail at bdeneal@yourclearwave.com.</li>
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