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2018 Georgia Code 44-5-168 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 44-5-168 Case Law from Google Scholar Amendments to OCGA 44-5-168

TITLE 44 PROPERTY

Section 5. Acquisition and Loss of Property, 44-5-1 through 44-5-230.

ARTICLE 7 PRESCRIPTION

44-5-168. Adverse possession of mineral rights under certain conditions; procedure to obtain title.

  1. Whenever mineral rights are conveyed or whenever real property is conveyed in fee simple but the mineral rights to such property are reserved by the grantor, the owner of the real property in fee simple or his heirs or assigns may gain title to such mineral rights by adverse possession if the owner of the mineral rights or his heirs or assigns have neither worked nor attempted to work the mineral rights nor paid any taxes due on them for a period of seven years since the date of the conveyance and for seven years immediately preceding the filing of the petition provided for in subsection (b) of this Code section.
  2. In order to obtain absolute title to mineral rights in the circumstances described in subsection (a) of this Code section:
    1. The owner of the real property in fee simple or his heirs or assigns may file in the superior court for the county where the land is located a petition requesting relief in the nature of declaratory judgment. The petition:
      1. Shall contain all essential, required paragraphs, including jurisdiction;
      2. Shall contain the name and last known address of the grantor of the property reserving the mineral rights and the names and last known addresses of his heirs or assigns or any other person known by the plaintiff to have an interest in the mineral rights;
      3. Shall show:
        1. That the plaintiff or his predecessors in title were granted and obtained a deed for the property in question;
        2. That the conveyance reserved mineral rights or that the plaintiff or his predecessors in title conveyed the mineral rights and reserved or retained the fee simple title to the real property; and
        3. That, for a period of seven years preceding the filing of the petition after the conveyance, the owner of the mineral rights or his heirs or assigns have neither worked nor attempted to work the mineral rights nor paid taxes on them; and
      4. Shall include any and all prayers regarding the land that the plaintiff may desire. Specifically, the petition may pray that the court find that the plaintiff has obtained title to the mineral rights through adverse possession and that the plaintiff be granted title to mineral rights;
    2. Upon a finding in the plaintiff's favor, the court shall issue a judgment and decree declaring that the mineral rights involved have been lost and that the plaintiff has gained absolute title to such mineral rights; and
    3. Service shall be perfected in the same manner as service on defendants in an in rem proceeding, including service by publication.
  3. Nothing in this Code section shall restrict the court from granting further plenary relief, whether legal or equitable; and the failure of the petition in the plaintiff's favor shall not affect the right of the plaintiff to any other relief, legal or equitable, to which he may be entitled.
  4. Any person named in the petition or any person having an interest in the mineral rights shall have the right to intervene in a case brought under this Code section.
  5. In order to maintain the status quo pending the adjudication of the questions or to preserve equitable rights, the court may grant injunctions and other interlocutory extraordinary relief.
  6. Nothing in this Code section shall apply to a lease for a specific number of years nor to an owner of mineral rights who has leased the mineral rights in writing to a licensed mining operator as defined in Part 3 of Article 2 of Chapter 4 of Title 12.

(Code 1933, § 85-407.1, enacted by Ga. L. 1975, p. 725, § 1; Ga. L. 1987, p. 3, § 44.)

Cross references.

- Provision that owner of real property owns upward and downward indefinitely, §§ 44-1-2,51-9-9.

Law reviews.

- For article discussing the effect of Texaco, Inc. v. Short, 454 U.S. 516 (1982) on marketable title laws, see 34 Mercer L. Rev. 1005 (1983). For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986).

JUDICIAL DECISIONS

Section constitutional.

- Application of O.C.G.A. § 44-5-168 does not violate the state constitutional prohibition against impairment of the obligation of contracts. The preservation of the mineral owner's claim under § 44-5-168 depends only upon the owner's use of the minerals or upon returning them for taxes, which is a minimal burden that does not impair contractual obligations. Hayes v. Howell, 251 Ga. 580, 308 S.E.2d 170 (1983); Georgia Marble Co. v. Whitlock, 260 Ga. 350, 392 S.E.2d 881 (1990), cert. denied, 498 U.S. 1025, 111 S. Ct. 675, 112 L. Ed. 2d 667 (1991).

Protection against retroactive (or retrospective) laws prohibits the impairment of vested rights. Although owners of mineral interests may be said to have "vested rights," that property is held subject to the proper exercise of the police power by legislative bodies. O.C.G.A. § 44-5-168 does not divest the mineral owner of the owner's rights; it conditions the retention of those rights upon the requirements of either using the minerals or paying taxes upon the minerals for the public benefit. Hayes v. Howell, 251 Ga. 580, 308 S.E.2d 170 (1983).

Exclusion of fixed duration leases and leases to certain licensed mining operators contained in subsection (f) of O.C.G.A. § 44-5-168 does not violate the equal protection clause of the fourteenth amendment. Mixon v. One Newco, Inc., 863 F.2d 846 (11th Cir. 1989).

Phrase "worked" or "attempted to work the mineral rights" is not unconstitutionally vague under the first amendment of the state or federal constitutions. Fisch v. Randall Mill Corp., 262 Ga. 861, 426 S.E.2d 883, cert. denied, 510 U.S. 824, 114 S. Ct. 84, 126 L. Ed. 2d 52 (1993).

O.C.G.A. § 44-5-168 actually is a "lapse" statute rather than a traditional "adverse possession" law. Mixon v. One Newco, Inc., 863 F.2d 846 (11th Cir. 1989).

Section strictly construed.

- O.C.G.A. § 44-5-168 is in derogation of the common law and must be strictly construed. Larkin v. Laster, 254 Ga. 716, 334 S.E.2d 158 (1985).

Word "since" in subsection (a) of O.C.G.A. § 44-5-168 does not necessarily imply "immediately following." Moreover, use of the indefinite article in the reference to "a period of seven years" as opposed to "the period" indicates that any seven-year period of nonuse or nonpayment of taxes following the date of conveyance would suffice. Mixon v. One Newco, Inc., 863 F.2d 846 (11th Cir. 1989).

Applicability to mineral rights obtained prior to 1975.

- O.C.G.A. § 44-5-168 may be applied to mineral rights obtained prior to the statute's effective date, 1975, although suit could not be brought until 1982, seven years after the statute's effective date. Milner v. Bivens, 255 Ga. 49, 335 S.E.2d 288 (1985).

Venue.

- Landowner's suit is clearly not in equity if the landowner seeks to establish legal title by adverse possession as a matter of law in reliance on a statute. Venue is constitutionally in the county in which the land lies, as provided in paragraph (b)(1) of O.C.G.A. § 44-5-168. Hayes v. Howell, 251 Ga. 580, 308 S.E.2d 170 (1983).

Words "heirs" and "assigns" means only heirs and assigns of the real property in fee simple. Larkin v. Laster, 254 Ga. 716, 334 S.E.2d 158 (1985).

"Work" defined.

- To meet the requirement of working or attempting to work mineral rights under O.C.G.A. § 44-5-168, the owner of the mineral interests must carry on an operation to explore for, use, produce, or extract minerals in the land - the owner must do more than conduct genealogical research and pick up rock samples to meet this standard. Fisch v. Randall Mill Corp., 262 Ga. 861, 426 S.E.2d 883, cert. denied, 510 U.S. 824, 114 S. Ct. 84, 126 L. Ed. 2d 52 (1993).

Complaint deemed "filed" on date attorney instructs delivery.

- When attorney delivered petition claiming adverse possession to clerk on June 30 but instructed clerk to withhold delivery of summons and complaint to sheriff for service until further notice, complaint was deemed "filed" on the date attorney instructed delivery to be made, even though it was stamped "filed" on June 30. ITT Rayonier, Inc. v. Hack, 254 Ga. 324, 328 S.E.2d 542 (1985).

Rights protected under subsection (f).

- General Assembly intended to exclude from O.C.G.A. § 44-5-168, and thereby protect the rights of, lessees of mineral rights whether such lessees held leases for a specific number of years or were licensed mining operators. Hinson v. Loper, 251 Ga. 239, 304 S.E.2d 722 (1983).

Rights of successors in interest of party reserving mineral rights were protected under subsection (f) of O.C.G.A. § 44-5-168. Hinson v. Loper, 251 Ga. 239, 304 S.E.2d 722 (1983).

Adverse possession rights nonassignable.

- Right to seek good title to mineral rights by adverse possession under O.C.G.A. § 44-5-168 cannot be assigned. Larkin v. Laster, 254 Ga. 716, 334 S.E.2d 158 (1985).

Knowledge of record title holder.

- Nothing in O.C.G.A. § 44-5-168 precludes the holder of record title from acquiring title to mineral rights if one is aware of the mineral right owner's failure to use the rights or to pay taxes during a seven year period. James F. Nelson, Jr. Family Ltd. Partnership v. Miller, 267 Ga. 466, 479 S.E.2d 737 (1997).

Payment of taxes by corporation instead of stockholders avoided lapse of mineral rights.

- Plaintiffs, a corporation and the corporation's three primary stockholders, avoided the lapse of their mineral rights under O.C.G.A. § 44-5-168(a) by paying taxes on the mineral rights, and the fact that taxes were paid by the corporation rather than by simply the individual stockholders for certain periods did not change the outcome since, for the purpose of payment of taxes on the mineral rights, there was such an identity of ownership and interest among the individual stockholders and the corporation that it was impossible to distinguish among the various plaintiffs in the allocation of the tax liability or its payment. Allgood Farm, LLC v. Johnson, 275 Ga. 297, 565 S.E.2d 471 (2002).

Mineral owners cannot claim benefit of tax payments made by landowners.

- O.C.G.A. § 44-5-168 contemplates payment of taxes upon the mineral rights, as such, by the holder of the mineral rights who is not the owner of the real property in fee simple. Having failed to make such payments, the mineral owner is not entitled to claim the benefit of tax payments made by the landowners. Hayes v. Howell, 251 Ga. 580, 308 S.E.2d 170 (1983).

Payment of back taxes after suit immaterial.

- Payment of the seven year's back taxes owed by the owner of mineral rights, after the petition for adverse possession was filed, had no effect under O.C.G.A. § 44-5-168. Larkin v. Laster, 254 Ga. 716, 334 S.E.2d 158 (1985).

Mineral owner must show work or payment of ad valorem taxes.

- To retain one's interest in the mineral rights, the owner must attempt to work or work the mineral rights or return the property for and pay ad valorem taxes. Dubbers-Albrecht v. Nathan, 257 Ga. 111, 356 S.E.2d 205 (1987).

Because the owner actually paid ad valorem taxes on all the mineral rights reserved on the property owned by a ranch, under the clear language of the Mineral Lapse Statute, O.C.G.A. § 44-5-168, the ranch could not prevail on the ranch's adverse possession claim and the owner was entitled to summary judgment. Cartersville Ranch, LLC v. Dellinger, 295 Ga. 195, 758 S.E.2d 781 (2014).

Payment of estate taxes will not suffice.

- Payment of state or federal estate taxes on the interest of the mineral rights owner does not further the purposes of O.C.G.A. § 44-5-168, as there is no assurance payment of such taxes will be required or occur during the seven-year period. Dubbers-Albrecht v. Nathan, 257 Ga. 111, 356 S.E.2d 205 (1987).

Lump-sum tax payments without itemizing specific property interests.

- When an owner of mineral rights had entered into an agreement with the county where the property was located to pay lump-sum taxes without itemizing the specific property interests, the agreement did not meet the requirements of O.C.G.A. § 48-5-15(c), nor did it constitute payment of taxes due within the meaning of O.C.G.A. § 44-5-168. Georgia Marble Co. v. Whitlock, 260 Ga. 350, 392 S.E.2d 881 (1990), cert. denied, 498 U.S. 1025, 111 S. Ct. 675, 112 L. Ed. 2d 667 (1991).

Term of lease construed.

- Agreement which created a lease to mine for a 50-year period and gave an option to continue that had to be exercised by mining within that period, qualified as a lease for a specific number of years, even though it was provided that the lease would continue indefinitely if the option were exercised. Parker v. Reynolds Metals Co., 747 F. Supp. 711 (M.D. Ga. 1990).

Failure to perform duties.

- Trial court did not err in granting the personal representatives of a sister's estate summary judgment in their action against a brother's heirs seeking a declaration that a one-half mineral interest the brother held in certain land had reversed to the sister by operation of O.C.G.A. § 44-5-168 because there was no evidence presented that the brother or the brother's heirs performed the duties that would have avoided the effect of § 44-5-168; neither the heirs nor the brother paid any taxes on the one-half mineral interest after the land became titled in the sister, and there was no evidence that there was any attempt to work the mineral rights during the seven years prior to suit being filed. Knox v. Wilson, 286 Ga. 474, 689 S.E.2d 829 (2010).

Equitable estoppel inapplicable.

- Brother's heirs failed to present evidence justifying the application of the doctrine of equitable estoppel in an action filed by the personal representatives of a sister's estate, seeking a declaration that a one-half mineral interest the brother held in certain land had reversed to the sister by operation of O.C.G.A. § 44-5-168 because there was no evidence of an agreement by which the sister undertook to relieve the brother, and later his heirs, of the obligation to comply with the requirements of § 44-5-168, and there was no evidence that the sister ever made any promise or commitment intended to influence the holders of the one-half mineral interest to neglect their obligations under § 44-5-168; there was no reasonable inference that any holder of any mineral interest relied upon any representation of the sister in neglecting to follow § 44-5-168. Knox v. Wilson, 286 Ga. 474, 689 S.E.2d 829 (2010).

Cited in Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (1977); Johnson v. Bodkin, 241 Ga. 336, 247 S.E.2d 764 (1978); Watson v. Wachovia Nat'l Bank, 207 Ga. App. 780, 429 S.E.2d 111 (1993).

RESEARCH REFERENCES

Am. Jur. 2d.

- 3 Am. Jur. 2d, Adverse Possession, § 278 et seq. 53A Am. Jur. 2d, Mines and Minerals, §§ 19, 20, 119.

C.J.S.

- 58 C.J.S., Mines and Minerals, §§ 129 et seq., 150 et seq., 168, 195.

ALR.

- Oil or gas or other mineral rights in land as affected by language in conveyance specifying purpose for which the property is to be used, 39 A.L.R. 1340.

May adverse possession be predicated upon use or occupancy by one spouse of real property of other, 74 A.L.R. 138.

Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.

Title by or through adverse possession as marketable, 46 A.L.R.2d 544.

Validity and construction of statutes providing for reversion of mineral estates for abandonment or nonuse, 16 A.L.R.4th 1029.

Method of calculating attorneys' fees awarded in common-fund or common-benefit cases - state cases, 56 A.L.R.5th 107.

Cases Citing O.C.G.A. § 44-5-168

Total Results: 12  |  Sort by: Relevance  |  Newest First

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Hayes v. Howell, 308 S.E.2d 170 (Ga. 1983).

Cited 46 times | Published | Supreme Court of Georgia | Oct 26, 1983 | 251 Ga. 580, 79 Oil & Gas Rep. 219

...Supreme Court of Georgia. Decided October 26, 1983. Hatcher, Irvin & Pressley, Henry M. Hatcher, Jr., for appellant. Archer & Elsey, Shepherd L. Howell, for appellees. HILL, Chief Justice. The Howells bring this action against Hayes for declaratory judgment under OCGA § 44-5-168 (Code Ann. § 85-407.1), claiming ownership by adverse possession of certain mineral and oil rights. The trial court granted the Howells' motion for summary judgment. On appeal, Hayes challenges the constitutionality of OCGA § 44-5-168 (Code Ann....
...d, and that the mineral owner has never paid taxes on his mineral rights. For the past twenty-five years, the landowners have paid all taxes, and the mineral owner has made no attempt to *581 exploit the mineral rights. The landowners rely upon OCGA § 44-5-168 (Code Ann....
...may gain title to such mineral rights by adverse possession if the owner of the mineral rights...[has] neither worked nor attempted to work the mineral rights nor paid any taxes on them for a period of seven years since the date of the conveyance. ..." OCGA § 44-5-168(b)(1) (Code Ann. § 85-407.1) provides that the petition shall be brought in the county where the land is located. The mineral owner alleges that OCGA § 44-5-168 (Code Ann....
...The landowners seek to recover an interest in land by asserting a presently enforceable legal title against the defendant's mineral interest claim. Therefore, under the White v. Gordon, supra, rule, as a case at law, venue is constitutionally in the county in which the land lies as provided in OCGA § 44-5-168 (b) (1) (Code Ann....
...not be lost by mere non-user. In Brooke v. Dellinger, 193 Ga. 66, 73 (17 SE2d 178) (1941), it was held that mineral rights conveyed in fee simple could not be lost by adverse possession absent adverse use of the minerals themselves. By enacting OCGA § 44-5-168 (Code Ann....
...Bodkin, 241 Ga. 336 (247 SE2d 764) (1978). See Stith v. Morris, 241 Ga. 247 (1) (244 SE2d 817) (1978); U. S. Fidelity *583 &c. Co. v. Toombs County, 187 Ga. 544 (4) (1 SE2d 411) (1939). Here, the seven years have passed since enactment of the 1975 law (now OCGA § 44-5-168 (Code Ann....
...ment of claim in the county recorder's office [, s]uch a minimal `burden' on contractual obligations is not beyond the scope of permissible state action." Id. at p. 531. The same is true here. The preservation of the mineral owner's claim under OCGA § 44-5-168 (Code Ann....
...rs also own the fee subject to the rights of the mineral owner in one-half of the mineral interests. [5] The payment of taxes by the landowners was made in their capacity as landowners, not as tenants in common of the mineral rights. As we read OCGA § 44-5-168 (Code Ann....
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Georgia Marble Co. v. Whitlock, 392 S.E.2d 881 (Ga. 1990).

Cited 19 times | Published | Supreme Court of Georgia | Jul 5, 1990 | 260 Ga. 350

...Wayne Phears, Michael A. Dailey, Victor L. Moldovan, for appellant. *356 Robert S. Jones, for appellees. BELL, Justice. This appeal concerns, inter alia, the constitutionality of Georgia's statute for the lapse of mineral interests or rights, [1] OCGA § 44-5-168, *351 and whether defendant-appellant Georgia Marble Company has failed to pay taxes due on the mineral interest that is the subject of this litigation and thus has lost that mineral interest under § 44-5-168....
...Plaintiffs-appellees, Cecil and Coleen Whitlock, are the fee owners of approximately 120 acres in the eastern portion of Land Lot 125 of the 4th District, 2nd Section, Pickens County. Georgia Marble obtained its mineral interest on the Whitlock's property in 1924. Relying on § 44-5-168, the Whitlocks filed this action on September 30, 1987, to gain title by adverse possession to Georgia Marble's mineral interest in the Whitlocks' property....
...The parties submitted the case to the trial court for decision on a written record. The issues before the trial court included whether lump-sum tax payments Georgia Marble had made on unspecified property constituted the payment of taxes on the Whitlock mineral interest within the meaning of § 44-5-168, and, if not, whether any tax documents indicated that the Whitlock mineral interest had been specifically returned or that the interest specifically had been considered, valued, and assessed. Georgia Marble also attacked § 44-5-168 as unconstitutional....
...of taxes due. Also submitted for the court's consideration was a 1982 agreement between Georgia Marble and Pickens County tax officials, the purpose of the agreement being to permit Georgia Marble to avoid the loss of unmined mineral interests under § 44-5-168, by filing a general annual return for all mineral rights owned by Georgia Marble without specifying those rights in any way and by paying an annual lump sum as the taxes for the unspecified rights....
...property and the amount of tax due thereon, the court found it necessary to look to evidence extrinsic to the digests to determine whether Georgia Marble had paid the taxes due on the mineral interest at issue in this case. The trial court held that § 44-5-168 would be satisfied either if Georgia Marble had returned the mineral interest or if tax officials had considered and valued it....
...' decision to permit it to return and pay taxes in any manner other than that provided by law. The court concluded that Georgia Marble did not pay taxes on its mineral interest in the Whitlocks' property for the tax years in question, and that under § 44-5-168 Georgia Marble had lost its mineral interest. The trial court also concluded that § 44-5-168 was constitutional....
...in the Whitlock property was specifically considered for tax purposes from 1980 to 1987, under its 1982 agreement with Pickens County, Georgia Marble should be deemed to have paid the taxes due on the Whitlock mineral interest within the meaning of § 44-5-168. In this regard Georgia Marble argues that § 44-5-168 is a departure from the common law and therefore should be strictly construed. Georgia Marble moreover argues that § 44-5-168 should be construed to avoid a forfeiture if possible. For the reasons we will give below, we conclude as a matter of law that the agreement between Georgia Marble and Pickens County tax officials cannot constitute the payment of taxes due, within the meaning of § 44-5-168, on Georgia Marble's mineral interest in the Whitlock property....
...These letters and returns of unspecified mineral interests reflect an agreement between Georgia Marble and Pickens County tax officials that Georgia Marble would pay taxes on the lump-sum valuation to protect all of Georgia Marble's mineral interest from loss under § 44-5-168....
...Georgia Marble has cited two rules of statutory construction, but we find two other rules controlling — that statutes should be construed in pari materia with other statutes and that courts should strive to give effect to the purpose of a statute. As one of the purposes of § 44-5-168 is to encourage the collection of taxes, Hayes v. Howell, 251 Ga. 580, 585 (2 b) (308 SE2d 170) (1983), § 44-5-168 must be considered in pari materia with Georgia's tax statutes, to determine what constitutes the payment of taxes due under § 44-5-168....
...rtain property, they cannot undertake to see that it is properly and fairly taxed. See generally Dubbers-Albrecht v. Nathan, 257 Ga. 111, 112 (2) (356 SE2d 205) (1987), in which we recognized the importance of the taxing scheme within the context of § 44-5-168. The agreement between Georgia Marble and Pickens County was in violation of the taxing laws, and defeats one of the purposes of § 44-5-168 — the collection of taxes on mineral interests....
...Marble, we conclude that the trial court correctly found that Georgia Marble did not pay the taxes due on its interest in the Whitlock property. Accordingly, the trial court properly concluded that Georgia Marble had lost its mineral interest under § 44-5-168. 2. Georgia Marble next argues that § 44-5-168 is unconstitutional in that it effects an uncompensated taking of Georgia Marble's property. We disagree. OCGA § 44-5-168 gives the owners of severed mineral interests three ways to protect their property: they may work the rights; they may attempt to work the rights; they may pay taxes on the rights....
...Hayes v. Howell, supra, 251 Ga. at 584-585; Texaco v. Short, supra, 454 U. S. at 530, "it follows that, after abandonment, the former owner retains no interest for which he may claim compensation." Texaco v. Short, supra, 454 U. S. at 530. Moreover, § 44-5-168 "does not divest the mineral owner of his rights; it conditions the retention of those rights upon the requirements of either using them or paying taxes upon them for the public benefit." Hayes v....
...Thus, under the statute, the State has not taken Georgia Marble's property; Georgia Marble has simply failed to make any use of the property or pay taxes on it, and has let its rights in the property lapse. Texaco v. Short, supra, 454 U. S. at 530. Accordingly, we find that § 44-5-168 does not work a taking of property without just compensation. 3. We find no merit in Georgia Marble's remaining contentions. Judgment affirmed. All the Justices concur. NOTES [1] We use the terms mineral interests and mineral rights interchangeably in this opinion. [2] We agree with the court that § 44-5-168 would be satisfied by the return of the mineral interest and a lump-sum payment of tax on unspecified property....
...nce showed that tax officials, through inadvertence or otherwise, had not included the tax due on the mineral interest within the lump-sum tax on the tax digest. Moreover, we assume, for purposes of this opinion, that the court correctly interpreted § 44-5-168 by ruling that actual consideration and taxation by local tax officials (plus a lump-sum payment) would be sufficient compliance, even absent a return....
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Fisch v. Randall Mill Corp., 426 S.E.2d 883 (Ga. 1993).

Cited 10 times | Published | Supreme Court of Georgia | Mar 15, 1993 | 262 Ga. 861, 93 Fulton County D. Rep. 1158

...We hold that the statute is not vague and affirm the trial court's order that Randall Mill Corporation has gained absolute title to the disputed mineral rights. Randall Mill purchased property in North Fulton County in 1989 and filed a petition for declaratory judgment under OCGA § 44-5-168....
...al rights nor paid any taxes due on them for a period of seven years since the date of the conveyance and for seven years immediately preceding the filing of the petition provided for in subsection (b) of this Code section. (Emphasis supplied.) OCGA § 44-5-168 (a)....
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Allgood Farm, LLC v. Johnson, 565 S.E.2d 471 (Ga. 2002).

Cited 7 times | Published | Supreme Court of Georgia | Jun 25, 2002 | 275 Ga. 297, 2002 Fulton County D. Rep. 1996, 158 Oil & Gas Rep. 227

...s' motion for summary judgment are accurate copies of those filed in the Chattooga County Deed Room. 3. Allgood Farm also contends that a genuine issue of material fact exists regarding whether plaintiffs' mineral rights have lapsed pursuant to OCGA § 44-5-168....
...at all, Allgood Farm urges that any payment of *475 taxes for the mineral rights by the corporate plaintiff should not inure to the benefit of the individual plaintiffs. But the evidence on summary judgment compels a contrary conclusion. Under OCGA § 44-5-168(a), an owner of the mineral rights loses them by nonuse plus the nonpayment of taxes because the purpose of the statute is "to encourage the use of the state's mineral resources and the collection of taxes, or to encourage the use of land...
...plaintiffs and the corporation that it is impossible to distinguish among the plaintiffs in the allocation of the tax liability or its payment. Therefore, it can hardly be said that any of the plaintiffs' mineral rights have lapsed pursuant to OCGA § 44-5-168, and therefore, that any of the plaintiffs are precluded from recovery under the petition for ejectment....
...d The New England Improvement Company have lapsed due to their failure to pay taxes on their property interest, they are not entitled to summary judgment. Therefore, this Court should reverse the trial court's grant of summary judgment to them. OCGA § 44-5-168 provides for the lapse of mineral interests to the surface owner of the property when the mineral owner fails to use its rights or pay taxes on its interest for seven years....
...the action or after service of a motion for summary judgment by the adverse party." OCGA § 9-11-56(a). [6] Contrary to Allgood Farm's assertion, the affidavit is not "vague and indefinite," and therefore, insufficient as evidence of title. [7] OCGA § 44-5-168 provides in relevant part: (a) Whenever mineral rights are conveyed or whenever real property is conveyed in fee simple but the mineral rights to such property are reserved by the grantor, the owner of the real property in fee simple or h...
...covery to the petition for the recovery of land and mesne profits. [1] See Dubbers-Albrecht v. Nathan, 257 Ga. 111, 112-113, 356 S.E.2d 205 (1987) (mineral owner's payment of state or federal estate taxes does not defeat fee owner's claim under OCGA § 44-5-168)....
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Milner v. Bivens, 335 S.E.2d 288 (Ga. 1985).

Cited 7 times | Published | Supreme Court of Georgia | Oct 17, 1985 | 255 Ga. 49, 87 Oil & Gas Rep. 259

...s" and "timber rights" in the remaining acreage. In this suit, the appellee's argument, which was accepted by the trial court, is that the appellants, as present owners of the mineral rights to the subject property, have lost these rights under OCGA § 44-5-168 by neither working nor attempting to work the mineral rights, nor paying taxes on them, since the 1910 conveyance. As to OCGA § 44-5-168, supra, see Division 2, infra. The appellee also sought a declaration that the option to repurchase is void as violative of the rule against perpetuities. OCGA § 44-6-1. The trial court ruled in favor of the appellee under OCGA § 44-5-168, supra, and, as a result, did not consider the rule-against-perpetuities issue....
..., whereas two or more persons were parties to an indenture. Sterling v. Park, 129 Ga. 309, 312 (58 SE 828) (1907). [1] This common-law distinction is now obsolete. Id. Therefore, the 1910 conveyance will be referred to hereinafter as a deed. 2. OCGA § 44-5-168, supra, which is the statute under which the appellee is proceeding, was enacted, and became effective, in 1975. Hayes v. Howell, 251 Ga. 580 (2) (308 SE2d 170) (1983). Section 44-5-168 (a) provides, "Whenever mineral rights are conveyed or whenever real property is conveyed in fee simple but the mineral rights to such property are reserved by the grantor, the owner of the real property in fee simple or his heirs or...
...ork the mineral rights nor paid any taxes on them for a period of seven years since the date of the conveyance and for seven years immediately preceeding the filing of the petition..." In Hayes v. Howell, supra, it was held, among other things, that § 44-5-168 can be applied to mineral rights obtained prior to the effective date of the statute, i.e., 1975, although, in accordance with Nelson v....
...264 (232 SE2d 547) (1977), suit cannot be brought under the 1975 Act until seven years after its effective date. [2] In Hinson v. Loper, 251 Ga. 239 (304 SE2d 722) (1983), it was held that the owner of the surface rights in that case had not acquired title to the mineral rights, because under subsection (f) of § 44-5-168 the statute does not apply where, as in Hinson, the mineral rights have been leased in writing to a licensed mining operator....
...In a collateral action, there is no estoppel. Coldwell Co. v. Cowart, 138 Ga. 233, 237 (75 SE 125); 21 C.J. 1091, § 73." Hughes v. Cobb, 195 Ga. 213, 234 (5) (23 SE2d 701) (1942). [3] In addition, if the appellants were correct in this argument, OCGA § 44-5-168, supra, could have no sphere of operation....
...ply with the requirements of this section shall be proceeded against as a defaulting taxpayer." This Code section was repealed in 1978, effective January 1, 1980. Ga. L. 1978, p. 309 et seq. The appellants argue that the appellee's rights under OCGA § 44-5-168, supra, cannot be exercised until January 1, 1987, which will be seven years after the effective date of the repeal of § 92-104....
...of immediate interests. Norton on Deeds, 24. And was never applied to deeds poll, but was limited to deeds inter partes. Norton on Deeds, 24; Cooker v. Child, 2 Levinz, 74." [2] As noted in Hayes v. Howell, 251 Ga., supra at p. 582, the enactment of § 44-5-168 was intended to abrogate the rule of Brooke v....
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James F. Nelson, Jr. Fam. Ltd. P'ship v. Miller, 479 S.E.2d 737 (Ga. 1997).

Cited 5 times | Published | Supreme Court of Georgia | Jan 21, 1997 | 267 Ga. 466, 97 Fulton County D. Rep. 212

...Family Limited Partnership (Nelson) is the present owner of record title to the tract, but, since 1986, Sidney Miller has been the owner of record title to the mineral rights therein. In 1975, Nelson's predecessor in title brought a declaratory judgment action pursuant to the newly enacted OCGA § 44-5-168, seeking to establish title to the mineral rights in the tract....
...ey: 1) worked or attempted to work those rights; or, 2) paid taxes on those rights. Although the evidence showed both non-user and non-payment, we held that the action was "premature" because it was commenced less than seven years from the date OCGA § 44-5-168 became effective. Nelson v. Bloodworth, 238 Ga. 264, 267(2), 232 S.E.2d 547 (1977). Here, Nelson likewise brought a declaratory judgment action and sought to establish its ownership of the mineral rights pursuant to OCGA § 44-5-168....
...Miller urges that he should retain his title to the mineral rights on the 269.5-acre tract, since Nelson was aware that he had not returned his interest in those rights and that he had continued to pay taxes on the mineral rights in his homeplace. However, nothing in OCGA § 44-5-168 precludes the holder of record title from acquiring title to mineral rights if he is aware of the mineral rights owner's failure to use the rights or to pay taxes during a seven-year period....
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Dubbers-Albrecht v. Nathan, 356 S.E.2d 205 (Ga. 1987).

Cited 5 times | Published | Supreme Court of Georgia | May 27, 1987 | 257 Ga. 111

...The appellants are the fee owners of a tract of land comprising approximately 625 acres in Jeff Davis County. The appellees own the mineral rights to that tract as tenants-in-common. Appellants filed a petition for declaratory judgment, seeking a determination under OCGA § 44-5-168 [1] that they had gained title to the mineral rights by adverse possession on the grounds the appellees had neither attempted to work the mineral rights nor paid taxes on them for seven years preceding the filing of the petition....
...iod. 1. In granting summary judgment to the appellees the trial court reasoned that the payment of ad valorem taxes by Byars inured to the benefit of the other co-tenants and would therefore defeat the appellant's adverse possession claim under OCGA § 44-5-168 (a)....
...If Byars paid ad valorem taxes on this interest, it would mean that ad valorem taxes had not been paid on the remaining interests in the mineral rights, during the seven-year period, and the mineral rights, with the exception of Byar's interest, would be subject to the rule for adverse possession under OCGA § 44-5-168....
...ed in granting the appellees' motion for summary judgment. 2. We reject the appellees' argument that payment of either state or federal estate taxes by a mineral rights owner will defeat an adverse possession claim by the owner of the fee under OCGA § 44-5-168 (a)....
...OCGA §§ 48-5-10 and 48-5-15 (a) place a duty on the owner of improved and unimproved real property subject to taxation to return the property annually for ad valorem taxes to the tax commissioner of the county in which the property is located. We have stated that "[t]he preservation of the mineral owner's claim under OCGA § 44-5-168 [depends] only upon his use of the minerals or returning them for taxes." Hayes v....
...(Emphasis supplied.) We hold that to retain his interest in the mineral rights, the owner must attempt to work or work the mineral rights or return the property for and pay ad valorem taxes. The payment *113 of state of federal estate taxes on the interest of the mineral rights owner does not further the purposes of OCGA § 44-5-168, as there is no assurance payment of such taxes will be required or occur during the seven-year period. Judgment reversed. All the Justices concur. NOTES [1] OCGA § 44-5-168 (a) provides, "whenever mineral rights are conveyed or whenever real property is conveyed in fee simple but the mineral rights to such property are reserved by the grantor, the owner of real property in fee simple or his heirs or assigns...
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Cartersville Ranch, LLC v. Dellinger, 295 Ga. 195 (Ga. 2014).

Cited 4 times | Published | Supreme Court of Georgia | May 19, 2014 | 758 S.E.2d 781

...beneficiary of the trust created in the will of Evelyn Satterfield Dellinger), and Any Other Persons Claiming or Having an Interest in Certain M ineral Rights 3 reserved mineral rights by adverse possession pursuant to OCGA § 44-5-168 (the Mineral Lapse Statute) based on non-use of the rights and non-payment of taxes for the previous seven years....
...mmary judgment in favor of Dellinger on this claim. 3. Finally, Cartersville Ranch asserts the trial court erred in granting summary judgment to Dellinger on its claim that the reserved mineral rights on the property had lapsed under OCGA § 44-5-168 (the Mineral Lapse Statute). OCGA § 44-5-168 (a) provides that the owner of real property in fee simple may gain title to mineral rights by adverse possession ....
...rem taxes on entire tract during seven- year period preceding suit). Because Dellinger actually paid ad valorem taxes on all the mineral rights reserved on the property owned by Cartersville Ranch in Land Lot 270, under the clear language of OCGA § 44-5-168, Cartersville Ranch could not prevail on its adverse possession claim, and Dellinger was entitled to summary judgment. Case No....
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Larkin v. Laster, 334 S.E.2d 158 (Ga. 1985).

Cited 4 times | Published | Supreme Court of Georgia | Sep 5, 1985 | 254 Ga. 716

...had conveyed to appellants-intervenors. Appellant also agreed to sell and appellants-intervenors agreed to purchase, at a stated price, the mineral rights once they were obtained by appellant. Appellant sought a declaratory judgment pursuant to OCGA § 44-5-168 to have the mineral rights on the entire 367.94 acres terminated....
...re not lost by the appellees under the property that was conveyed to appellants-intervenors. We affirm in part and reverse in part, and hold that the mineral rights were lost by the appellees and gained by the appellants-intervenors pursuant to OCGA § 44-5-168. 1. Appellant asserts that the trial court erred in holding that OCGA § 44-5-168 is in derogation of the common law and must be strictly construed, that the words "heirs" and "assigns" mean only heirs and assigns of the real property in fee simple, and that at the time of the conveyance and agreement there was no cause of action that could be assigned....
...empted to work the mineral rights nor paid any taxes on them for a period of seven years since the date of the conveyance and for seven years immediately preceding the filing of the petition provided for in subsection (b) of this Code section." OCGA § 44-5-168....
...Clearly the additional method for obtaining good title by adverse possession is limited to the "owner of the real property in fee simple or his heirs or assigns" of the real property in fee simple. (c) The right to seek good title to mineral rights by adverse possession under OCGA § 44-5-168 cannot be assigned....
...The parties stipulated that they were the proper parties to the action, and that appellant and appellants-intervenors were the fee simple owners of the property. The court correctly found that the appellant obtained the appellee's mineral rights pursuant to OCGA § 44-5-168 on the property that remained in his possession....
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Hinson v. Loper, 304 S.E.2d 722 (Ga. 1983).

Cited 4 times | Published | Supreme Court of Georgia | Jul 7, 1983 | 251 Ga. 239

...LOPER et al. 39860. Supreme Court of Georgia. Decided July 7, 1983. Walker, Richardson, Hulbert & Gray, Lawrence C. Walker, Jr., for appellant. *241 James G. Maddox, for appellees. HILL, Chief Justice. This case is the first to arise on its merits under OCGA § 44-5-168 (formerly Code Ann....
...Yara Engineering was not made a party to the suit. This appeal is from the grant of summary judgment to the defendants on the ground that the plaintiff has not acquired title to defendants' mineral rights by adverse possession. Plaintiff claims title to the mineral rights under OCGA § 44-5-168 (Code Ann....
...ion. ..." Actually, it might be more accurate to say that under this statute the owner of the mineral rights loses them by nonuse plus nonpayment of taxes, as opposed to losing such rights by adverse possession of the fee simple owner. However, OCGA § 44-5-168 (f) (Code Ann....
...mineral rights" in that it was C. H. Loper who leased such rights, not these defendants. Plaintiff points to the use of the words "or his predecessors in title" elsewhere in the Code section and to the absence of such phrase in paragraph (f) of OCGA § 44-5-168 (Code Ann....
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Knox v. Wilson, 689 S.E.2d 829 (Ga. 2010).

Cited 2 times | Published | Supreme Court of Georgia | Feb 8, 2010 | 286 Ga. 474, 176 Oil & Gas Rep. 389, 2010 Fulton County D. Rep. 326

...This appeal concerns a tract of land held by the heirs of Emma Thomson; that tract has been subject to a one-half interest in the mineral rights in the land, now claimed by the heirs of L.G. Hardman, Jr. The Thomson heirs sought to extinguish the outstanding mineral interest under OCGA § 44-5-168, [1] and the Hardman heirs appeal from the trial court's order on summary judgment extinguishing the one-half mineral interest....
...L. G. Hardman, Jr., and all other persons claiming an interest in the mineral rights, seeking a declaration that the one-half mineral interest held by L. G. Hardman, Jr., under the 1970 court order, had reverted to Emma Thomson by operation of OCGA § 44-5-168. Shell Hardman Knox and other heirs of L. G. Hardman, Jr. (collectively "Knox") answered, and contended that OCGA § 44-5-168 did not apply. The trial court granted Wilson's motion for summary judgment. 1. Under OCGA § 44-5-168, "the owner of the mineral rights loses them by nonuse plus nonpayment of taxes, as opposed to losing such rights by adverse possession of the fee simple owner." Fisch v....
...Hardman, Jr., before his death, paid any taxes on the one-half mineral interest at any time after the land became titled in Emma Thomson in 1970. Nor is there any evidence that there was any attempt to work the mineral rights during the seven years prior to suit being filed in 2008. [2] Nonetheless, Knox contends that OCGA § 44-5-168 does not apply to fractional mineral interests, asserting that the Code section's reference in subsection (a) to " the mineral rights" (emphasis supplied) requires the interpretation that OCGA § 44-5-168(a) applies only if the mineral rights have been severed from the fee and are held as a whole....
...Rather, this Court has previously applied the statute when, as here, half of the mineral rights were retained by a grantor. Hayes v. Howell, 251 Ga. 580, 308 S.E.2d 170 (1983). And, the construction Knox proposes would frustrate the purposes of the statute. OCGA § 44-5-168 "serves dual purposes: to encourage the use of the state's mineral resources and the collection of taxes, or to encourage the use of land free of interference by the holders of mineral rights who neither use nor pay taxes upon them." Hayes, supra at 585(2)(b), 308 S.E.2d 170....
...Hardman, Jr., and later his heirs, and an intention on Emma Thomson's part to respect that ownership. However, there is no evidence of an agreement by which Emma Thomson undertook to relieve L.G. Hardman, Jr., and later his heirs, of the obligation to comply with the requirements of OCGA § 44-5-168, and there is no evidence that Emma Thomson ever made any promise or commitment intended to influence the holders of the one-half mineral interest to neglect their obligations under OCGA § 44-5-168. See Ward, supra. Nor is there a reasonable inference that any holder of any mineral interest relied upon any representation of Emma Thomson's in neglecting to follow OCGA § 44-5-168....
...ey knew of no effort by anyone, including their aunt Emma Thomson, to pay taxes on the mineral rights, shows no act on Emma Thomson's part to influence anyone else to ignore their obligations that, if fulfilled, would have avoided the effect of OCGA § 44-5-168; these averments also fail to show any reliance on the part of L....
...ined within every seven-year period, or that she would pay taxes on the mineral rights on behalf of others. [3] As there was no evidence presented that L. G. Hardman, Jr., or his heirs, performed the duties that would have avoided the effect of OCGA § 44-5-168, or that Wilson should be equitably estopped from asserting the operation of the statute, the trial court did not err in granting Wilson's motion for summary judgment. Judgment affirmed. All the Justices concur. NOTES [1] OCGA § 44-5-168 reads: (a) Whenever mineral rights are conveyed or whenever real property is conveyed in fee simple but the mineral rights to such property are reserved by the grantor, the owner of the real property in fee simple or his heirs or assigns...
...[3] Knox suggests that the mineral rights were never separately assessed, but even if that is the case, it is of no moment; there is no evidence that either L. G. Hardman, Jr., or his heirs, ever took action intended to secure an assessment that might facilitate compliance with the obligations of OCGA § 44-5-168....
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ITT Rayonier, Inc. v. Hack, 328 S.E.2d 542 (Ga. 1985).

Cited 1 times | Published | Supreme Court of Georgia | Apr 16, 1985 | 254 Ga. 324, 85 Oil & Gas Rep. 241

...Rehearing Denied May 10, 1985. Dubberly & McGovern, B. Daniel Dubberly, Jr., for appellant. Charles C. Stebbins III, for appellees. GREGORY, Justice. The appellant, ITT Rayonier, Inc., brought this action seeking a declaratory judgment pursuant to OCGA § 44-5-168 against appellees, the executors of the estate of Charles C....
...Therefore, the doctrines of estoppel by deed and after-acquired title are not applicable. *325 2. In its second enumeration of error appellant contends the trial court erred in denying its motion for summary judgment based upon adverse possession of the subject mineral rights pursuant to OCGA § 44-5-168....