Southern Illinois Oil & Gas Attorneys

A mineral estate can be created by severing the surface rights from the underlying mineral rights. This can be accomplished either by a conveyance of the mineral rights alone, or by a conveyance of the surface estate, whereby the grantor reserves the interest in the underlying minerals. The legal result is two separate and distinct estates in land, subject to independent ownership and separate taxation, either of which may be conveyed or devised.

Until January 1, 1984, the Illinois statutes provided that dormant mineral interests would be deemed abandoned when there was no actual production of minerals and when the interest in the minerals had not been devised, sold, leased, mortgaged, or transferred by recorded instrument for a period of twenty-five years. Ill.Rev.Stat., c. 96½, ¶9211 (1982) As of January 1, 1984, a statutory provision was adopted by which, through court proceedings, the interests of unknown or missing owners could be terminated seven years from the date of judgment, based on the theory that the owner of the surface estate overlying the severed mineral interest is exercising presumptive adverse possession over the mineral interest. 765 ILCS 515/11. This seven-year period could be reduced to one year if the severance took place more than twenty years prior to the date of the filing of the original petition and other statutory requirements are met.

As to missing or unknown owners, the Illinois Severed Mineral Interest Act provides for presumptive adverse possession. Any surface owner may lay adverse claim to the underlying severed mineral interests of missing or unknown owners. The adverse claimant must file a petition with the clerk of the court which includes a legal description of the lands; a statement of the claimant’s interest in the lands, as well as that of the defendant owner(s); the name(s) and last known address(es) of the missing or unknown owner(s); a statement that said owner(s) cannot be located or ascertained after diligent search; evidence of the diligent search; and a statement that the undeveloped mineral interest impairs the enjoyment of that interest presently held by the adverse claimant. The clerk will serve notice to the known owner(s) by certified mail, and to the unknown or missing owner(s) by publication. The court will then render judgment as to presumptive adverse possession. The presumptive adverse possessor will take title to the interests of any and all unknown or missing persons who fail to contest the claim within seven years after the initial judgment, so long as he pays all taxes legally assessed to the property. 765 ILCS 515/11, et seq


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