22.1 In General
The title examiner should carefully review and, where still in effect, disclose the existence of:
(1) Instruments that reserve or except mineral interests;
(2) Instruments that sever surface and mineral rights;
(3) Mineral Leases.
Where the mineral interest has been completely separated from the remainder of the fee simple estate, it should be excepted from the legal description.
Comment: Fee simple title to land includes ownership of all minerals located thereon. A conveyance of real estate transfers the mineral interest unless rights are reserved or there has already been a severance of the surface and mineral estates.
22.2 Rights of Ingress and Egress
Instruments granting or reserving mineral interests often include rights of ingress and egress and possession of so much of the surface as may be necessary for prospecting, extraction, and removal. Even if such rights are not expressly conveyed, they may be implied as necessary to the use and enjoyment of the estate conveyed and should always be identified and disclosed to the owner of the surface estate.
22.3 Non-Use of Mineral Rights
Mineral interests conveyed or reserved by deed or other instrument are not normally lost by mere non-use, regardless of the period of time, and adverse possession of the surface alone will not bar outstanding claims to minerals. However, O.C.G.A. Section 44-5-168 provides a statutory bar of mineral rights where the mineral owner or such owner’s assigns have neither worked nor attempted to work the mineral rights nor paid taxes due thereon for a period of seven years if a civil action has been filed in accordance with this Code Section and has been successfully concluded in favor of the petitioner.
Comment: The Georgia Mineral Lapse Statute, O.C.G.A. Section 44-5-168, is not an automatic remedy for outstanding mineral interests. A legal proceeding is required. Where a judgment or decree terminating a mineral interest is found, thorough examination of the case is necessary in order to ascertain that all statutory requirements have been satisfied. The statutory bar does not apply to a mineral lease for a specific number of years nor can it affect a lease to a “licensed mining operator.”