Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the November 19, 2014 mailing of "Constructive Notice":

Unrecorded Mineral Rights Can't be Preserved

In the latest of many recent cases out of Nebraska concerning the Dormant Mineral Act, that state’s Supreme Court has expanded the requirements to preserve mineral rights by a filing in the local land records. Specifically, the Court terminated certain interests because the instrument creating them was not recorded in the local land records. Rice v. Bixler, 289 Neb. 294 (October 3, 2014).

Pursuant to Neb. Rev. Stat. §27-229(3), a “record owner” of mineral rights may file a ”verified claim of interest” in the local land records as a means of preventing its severed mineral rights from merging into the surface estate. The statute says this document “shall describe the land and the nature of the interest claimed [and] shall properly identify the deed or other instrument under which the interest is claimed….” The language of the Act doesn’t require recordation of the instrument under which the interest is claimed, only that it be “properly identified.”

Rice concerned several verified claims filed by different claimants. Two claims referred to a “Joint Tenancy Mineral Deed” dated December 17, 1958, but did not reference a book and page where the deed is recorded in the public records. The Court found this inadequate to “identify the deed” for purposes of §27-229(3): “Reference to an unrecorded deed that may or may not exist does not establish the proper chain of ownership necessary to comply with the requirements for filing a verified claim.”

Two other mineral claimants filed a verified claim, but the last deed of record indicated their mother was the most recent owner. The mother had passed away in Alabama eight years earlier, leaving her mineral interest to her sons. Although the verified claim included documents that traced the interests from the mother to the sons, this devolution was not previously made part of the Nebraska public records. Hence, the sons were not the “record owners” under §27-229(3) and their claimed interests were terminated.


In recent years, Dormant Mineral Acts have been a fruitful source of litigation. For instance, the North Dakota version just withstood a constitutional challenge, Capps v. Weflen, 2014 ND 201 (Oct. 31, 2014). Skyrocketing energy demand as well as renewed interest in shale gas production from the Utica and Marcellus Shale deposits have been driving this trend. Mineral rights owners in states with a Dormant Mineral Act should enlist the aid of counsel to comply with the statutory scheme.