FRANK v. FORTUNA ENERGY INC (2008)

 Plaintiff commenced this action pursuant to RPAPL article 15 seeking a determination that he is the lawful owner of subsurface oil and gas on his property.   Fortuna Energy, Inc., Richard Uhl, David L. Manning and Allen P. Uhl (defendants) moved to dismiss the complaint against them or, alternatively, for summary judgment pursuant to CPLR 3211(c).  Supreme Court treated the motion as one for summary judgment pursuant to CPLR 3211(c) and granted the motion. We affirm.   Defendants met their initial burden by establishing that, when Joseph E. Uhl and Florence P. Uhl conveyed the property in question to defendants' predecessors in title, they reserved to themselves and their heirs title to all of the subsurface minerals, including oil and gas.   That reservation of title constitutes a fee simple interest in the subsurface minerals, which includes both title to the minerals and the right to use any reasonable means to extract them (see generally Marvin v. Brewster Iron Mining Co., 55 N.Y. 538, 548-550, reh. denied 56 N.Y. 671;  Miles v. Home Gas Co., 35 A.D.2d 1042, 1043, 316 N.Y.S.2d 908).   Contrary to the contention of plaintiff, he did not gain title of the subsurface minerals through adverse possession based on the longstanding residential use of the surface of the property (see Marvin, 55 N.Y. at 555-556).   Plaintiff failed to raise a triable issue of fact sufficient to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: