CHAPTER 5 CONSTRUCTIVE NOTICE--A MULTI-STATE PERSPECTIVE

• Jurisdiction: United States

Mineral Title Examination
(Feb 2012)
CHAPTER 5
CONSTRUCTIVE NOTICE--A MULTI-STATE PERSPECTIVE
George A. Snell, III
Snell Law Firm
Amarillo, Texas

GEORGE A. SNELL, III, Snell Law Firm, was born in Pampa, Gray County, Texas. He attended Baylor University and Baylor Law School graduating in 1972 with BA and JD degrees. Since 1972, George has practiced law in Amarillo. He maintained a general practice, including litigation, until 1979. In 1979, George joined an attorney who had been preparing title opinions for oil and gas purposes since 1966. George also limited his practice to the oil and gas and real property areas, focusing primarily on the preparation of title opinions for all purposes. George and his former partner, now deceased, have together prepared over 7,000 title opinions. From 1985 to 1991, he was one of the team of speakers teaching AAPL's Certification Review course. He taught NADOA's Certification Review course from 1993 to 1996. George has spoken at many other industry seminars for landmen, division order analysts and bar associations. Many of his articles have been published in The Landman. Since 1989, George has served on the Texas Bar's Title Standards Joint Editorial Board. The purpose of title standards is to summarize the law on a real property subject and provide practical solutions to common conveyancing problems. All real estate practitioners, including oil and gas practitioners, should be familiar with the title standards of any state where they conduct business. While George is not a member of a firm in the traditional sense, George has put together a network of title lawyers in 16 states who work together for both business and writing purposes. All other 15 lawyers have written articles comparing the oil and gas law of their state to Texas, using the same format as in the prototype article written in 1989 which compares the oil and gas law of Oklahoma to Texas.

GEORGE A. SNELL, III

2201 Civic Circle, Ste. 508

Amarillo, TX 79109

(806) 359-8611; 355-3339 (FAX)

E-Mail - george@georgesnell.com

www.george@georgesnell.com

BIOGRAPHICAL INFORMATION

EDUCATION: J. D. Baylor Law School, Waco, Texas - 1972

B.A. Baylor University, Waco, Texas - 1972

PROFESSIONAL ACTIVITIES:

Member of the following bar associations: Texas, Oklahoma, Amarillo, Austin, Houston and Tarrant County

Member of the following professional landman associations: American, Texas Panhandle, Oklahoma City, Tulsa, Fort Worth, Dallas, Denver and Permian Basin

Member of the National Association of Division Order Analysts (NADOA), the Oklahoma City Chapter (CAPDOA) and the Tulsa Chapter (SADOA)

Member of the State Bar of Texas Title Standards Joint Editorial Board (1992 - Present)

Member of the National Association of Scholars

LAW RELATED PUBLICATIONS:

Significant Differences in Oil and Gas Principles between Producing States: From the Landman's Perspective - Texas and Oklahoma - Co-author - published in The Landman, 11-12/89 and 1-2/90 issues;

Title Examination of Fee Lands (Constructive Notice Revisited) Author/speaker - Mineral Title Examination III (1992) Rocky Mountain Mineral Law Foundation, Denver, Colorado;

Probate Estates in Texas, Oklahoma and Louisiana Author/Speaker - 19th Annual NADOA Institute (1992), Dallas, Texas;

A Comparative Review of Oil & Gas Law: Texas-Oklahoma-Arkansas - Co-Author/Co-Speaker - Natural Resources Law Institute (1993), Hot Springs, Arkansas;

Revenge Against the Title Nerds! (How Texas' proposed title standards can help you avoid technical title objections) - Author/Speaker - Review of Oil and Gas Law VIII(1993)- Energy Law Section of the Dallas Bar Association;

Due Diligence Title Review: The Problem Areas, Where to Look and How to Solve. - Author/Speaker - Sixth Annual Dallas Energy Symposium (1994), Dallas, Texas;

Suspense Issues that Affect the Division Order Analyst. - Author/Speaker - 21st Annual NADOA Institute (1994), San Antonio, Texas;

Non-Consenting Mineral Owners. - Author/Speaker - 24th Annual NADOA Institute (1997), New Orleans, Louisiana;

Drafting Tips For Oil & Gas Leases and Conveyance - Author/Speaker - University of Texas 24th Annual Oil, Gas and Mineral Law Institute (1998), Houston, Texas;

State Royalty Payment Statute - State Check Stub Requirement Statutes - Author/Speaker - 2nd Annual National Oil & Gas Royalty Conference (1998), Houston, Texas;

A Model Form Title Opinion Format - Is it Possible? Is it Practical? - Author - Vol. 25, No. 2 - Oil, Gas and Mineral Law Section Report (December, 2000) - State Bar of Texas;

Shut-In Gas Royalty - How to Avoid a Train Wreck - Author/Speaker - St. Mary's University School of Law Mineral/Royalty Owners & Producers Institute (2002), Midland, Texas;

Constructive Notice (A Multi-state perspective) - Author/Speaker - 20th Annual Advanced Oil, Gas & Energy Resources Law Institute (2002), Dallas, Texas;

Pooling - From A to Horizontal - Author/Speaker - St. Mary's University School of Law, Mine Fields & Minerals Institute (2003), Midland, Texas;

Accessing Local Records - Preparing the Chain of Title - Author/Speaker - Mineral Title Examination IV (2007) Rocky Mountain Mineral Law Foundation, Denver, Colorado;

Legal Descriptions and Wellbore Assignments - Co-Author/Speaker - 25th Annual Advanced Oil, Gas & Energy Resources Law Institute (2007), Houston, Texas.

Basics of Oil & Gas Conveyances - Speaker - 29th Annual Advanced Oil, Gas & Energy Resources Law Course (2011), Houston, Texas.

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CONTRIBUTING FRIENDS

Arkansas

Tom Daily

Daily & Woods

58 South 6th Street

Fort Smith, AR 72902-1446

Stephens Building

(479) 782-0361

tdaily@dairywoods.com

Colorado

Greg Danielson

Davis Graham & Stubbs, L.L.P.

1550 17th Street, Suite 500

Denver, CO 80202

(303) 892-9400

greg.danielson@dgslaw.com

Firm Website: www.dgslaw.com

Louisiana

Richard W. "Rick" Revels

Liskow & Lewis

P. O. Box 52008

Lafayette, LA 70505

(337) 232-7424

rwrevels@liskow.com

Firm Website: www.liskow.com

Mississippi

W. Eric West

McDavid, Noblin & West, PLLC

248 E. Capitol Street, Suite 840

Jackson, MS 39201

(601) 948-3305

ewest@mnwlaw.com

Firm Website: www. mnwlaw.com

California

James M. Day, Jr.

Day, Carter & Murphy, L.L.P.

3620 American River Drive, Suite 205

Sacramento, CA 95864

(916) 570-2500

jday@daycartermurphy.com

Firm Website:: www.daycartermurphy.com

Kansas

Chris Steincamp

Depew Gillen Rathbun & McInteer, L.C.

8301 E. 21st Street North, Suite 450

Wichita KS 67206-2936

(316) 262-4000

chris@depewgillen.com

Firm Website: www.depewgillen.com

Michigan

Susan Hlywa Topp

Topp Law PLC

213 East Main

Gaylord, MI 49734

(989) 731-4014

susan@topplaw.com

Firm Website: www.topplaw.com

Montana

Brian R. Bjella

Crowley Fleck, PLLP

P. O. Box 2798

Bismarck, ND 58502

(701) 223-6585

brbjella@crowleyfleck.com

Firm Website: www.crowleyfleck.com

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Montana

Craig C. Smith

Crowley Fleck, PLLP

P. O. Box 2798

Bismarck, ND 58502

(701) 223-6585

csmith@crowleyfleck.com

Firm Website: www.crowleyfleck.com; /span >

New York

John H. Heyer

Attorney at Law

604 Exchange National Bank Bldg.

P. O. Box 588

Olean, NY 14760

(716) 372-0395

jhh@heyerlaw.com

Firm Website: www.heyerlaw.com

Ohio

Timothy M. McKeen

Steptoe & Johnson PLLC

1233 Main Street, Suite 3000

WheelingrWV 26003

(304) 233-0000

timothy.mckeen@steptoe-johnson.com

Firm Website: www.steptoe-johnson.com

Pennsylvania

Russell L. Schetroma

Steptoe & Johnson, PLLC

201 Chestnut Street, Suite 200

Meadville, PA 16335

(814) 336-6400

russell.schetroma@steptoe-johnson.com

Firm Website: www.steptoe-johnson.com; /span >

New Mexico

Greg Nibert

Hinkle, Hensley, Shanor & Martin, L.L.P.

P. O. Box 10

Roswell, NM 88202-0010

(575) 622-6510

gnibert@hinklelawfirm.com

Firm Website: www.hinklelawfirm.com

North Dakota

Brian R. Bjella

Crowley Fleck, PLLP

P. O. Box 2798

Bismarck, ND 58502

(701) 223-6585

brbiella@crowleyfleck.com

Firm Website: www.crowleyfleck.com; /span >

Oklahoma

Timothy C. Dowd

Elias, Books, Brown, & Nelson

211 N. Robinson

Suite 1300

Oklahoma City, OK 73102-7114

(405) 232-3722

timdowd@eliasbooksbrown.com

Firm Website: www.eliasbooks.com

Texas

George A. Snell, III

Snell Law Firm

2201 Civic Circle, Suite 508

Amarillo, Texas 79109

(806) 359-8611

George@georgesnell.com

Firm Website: www.georgesnell.com

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Utah

Angela L. Franklin

Holme, Roberts & Owen, LLP

299 South Main Street, Suite 1800

Salt Lake City, UT 84111-2263

(801) 323-3267

angela.franklin@hro.com

Firm Website: www.hro.com

Wyoming

Craig Newman

Attorney at Law

P.O. Box 2310

123 W. 1st Street, Suite 675

Casper, WY 82602

(307) 237-9588

cmannew@aol.com

West Virginia

Richard L. Gottlieb

Lewis, Glasser, Casey, & Rollins, PLLC

300 Summers Street, Suite 700

Charleston, WV 25301

(304) 345-2000

rgottheb@igcr.com

Firm Website: www.lgcr.com

Blog: wvnaturalgasblog.blogspot.com

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TABLE OF CONTENTS

PART I

INTRODUCTION

I. The Plan

A. The Common Law Background

B. The Statutory Purposes

C. The Statutory Definitions

II. The Pattern

A. Race

B. Notice

C. Race-Notice

III. The Procedure

A. Instruments not required to be Recorded

B. Constructive Notice

1. From proper recording

2. From improper recording?

3. From possession?

C. Actual Notice/Implied Notice-Duty to Inquire/Imputed Notice

D. How They Operate

E. Taking Notice to the Extreme in Texas (and your state too?)

1. The Duhig Rule - Ignoring Notice

2. Westland Oil - Pushing Duty to Inquire off the Page

IV. The Problems

Situation A - Deed from a Stranger to Record Title

Situation B - Does a Purchaser have Notice of Easements Created by Instruments Covering Adjacent Lands that Affect his Land?

Situation C - Does a Purchaser have Actual Notice of an Instrument in his Chain of Title that is Unrecordable but which...