2021 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
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.)

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

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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 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).

- 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 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).

- 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).

- 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).

- 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).

- 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.

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

- 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.