The Seventh District Court of Appeals, based in Youngstown, held that denial of surface access to the lessee of the underlying mineral estate constituted force majeure under the lease’s broadly worded clause.  Force majeure, literally "superior force," generally means an event or effect that can be neither anticipated nor controlled.  When in this circumstance, denial of access resulted in non-production during the primary term, the court deemed the surface owner’s denial of access to be a force majeure which tolled the lease’s primary term.

In Haverhill Glen, LLC vs. Eric Petroleum Corp., decided December 2, 2016, the Seventh District Court upheld the Harrison County, Ohio, trial court’s grant of summary judgment to mineral lessee Eric Petroleum in lessor Haverhill Glen’s suit for a declaration that the lease expired due to non-production.

The lease covered 3,583 acres.  Eric determined that the best potential development site was in the 363 surface acres owned by New Rocky Valley Farms.  New Rocky repeatedly denied access to Eric; its representatives even threatened Eric’s representatives.  Eric had previously attempted to gain surface access for potential development on a 2,400-acre tract within the lease known as Faith Ranch and Farms, also to no avail.  Two months before the end of the primary term, Eric invoked the force majeure provision in its lease with Haverhill, based on repeated denial of access by surface owners.  After the primary term ended, Haverhill filed suit seeking a declaration that the lease had expired. 

The appellate court acknowledged with approval the trial court’s statement that

Drilling and placing an oil and gas well into production is an expensive endeavor.  The Defendant bargained and paid for the right to do so on the acreage which provided them with the best opportunity to succeed in their venture.  They further negotiated and paid for the inclusion of a force majeure clause in their Lease.  They have the right to rely upon the language contained therein to protect their investment.

Ohio law interpreting force majeure clauses is sparse.  The particular language of the clause may differ from lease to lease, and will control in each circumstance.  However, this case stands for the proposition that any unanticipated and uncontrollable event that results in the lessee’s inability to comply with obligations under the lease qualifies as a force majeure.