Section 18-11-105 - Surface rights of cotenants or tenants-in-common - Waiver(a) All right or claim of right, title, interest, equity, and estate by a cotenant or tenant-in-common, including minors, to surface rights in real property, which the cotenant or tenant-in-common is not possessing, having been created by intestate descent and distribution or under the testate distribution of those surface rights by the cotenant or tenant-in-common's grantor, shall be conclusively deemed waived, abandoned, and forfeited to the other person or legal entity, holding title as cotenant, or tenant-in-common, and in possession, on the condition that:(1) The cotenant or tenant-in-common, not in possession, and whose whereabouts are unknown, has made no written demand upon the cotenant or tenant-in-common, in possession, for rents, profits, or possession of the surface rights for a twenty-year period; and(2)(A)(i) After the expiration of the twenty-year period, whether commencing before or after July 15, 1991, the cotenant or tenant-in-common, in possession, publishes notice in a newspaper of general circulation in the county in which the surface rights are located, of an intent to oust the cotenant or tenant-in-common, not in possession, from the lands described in the notice, as a result of the abandonment and waiver referred to in this subsection.(ii) The notice shall be published once a week for two (2) consecutive weeks.(B)(i) Not less than ninety (90) days nor more than three hundred sixty-five (365) days following the last date of publication referred to in this section, the cotenant or tenant-in-common, in possession, may maintain an action to quiet title in the county in which the surface rights are situated and located, with the rights or claim of right of the cotenant or tenant-in-common, not in possession, having been conclusively deemed waived, abandoned, and forfeited to the person or legal entity, holding as cotenant, or tenant-in-common, and in possession thereof.(ii) Upon successful prosecution of the action to quiet title, the cotenant, or tenant-in-common, in possession, shall hold the surface rights free and clear of any claim or title in the cotenant or tenant-in-common, including minors, not in possession.(c) For purposes of the action to quiet title referred to in this section, an affidavit or other evidence denying the receipt of written demand referred to in subdivision (a)(1) of this section, above, and an affidavit or other evidence affirming the publication of notice of intent to oust referred to in subdivision (a)(2) of this section, shall be sufficient evidence to sustain the plaintiff's burden of proof in the action, with no other evidence necessary. It shall not be necessary that the notice or the action to quiet title name the missing or absent cotenant or tenant-in-common, not in possession, as those missing persons may be collectively referred to as "missing or absent claimants" to the lands described in the notice or action.(d)(1) This section shall not apply to mineral rights or other subsurface rights held by cotenants or tenants-in-common.(2) For purposes of this section, cotenants or tenants-in-common shall include joint tenants.Acts 1991, No. 660, §§ 1-3.