Beury v. Shelton

• Decision Date: 20 September 1928
• Citation: 151 Va. 28
• Parties: H. B. BEURY, ET ALS. v. H. B. SHELTON AND H. L. PHLEGAR.
• Court: Virginia Supreme Court

Page 28

151 Va. 28

H. B. BEURY, ET ALS. v. H. B. SHELTON AND H. L. PHLEGAR.

Supreme Court of Virginia, Staunton.

September 20, 1928.

1. PAROL EVIDENCE — Construction of Reservation of Metals and Minerals — Whether Limestone Included — Case at Bar. — The principal question at issue in the instant case was whether a reservation of metals and minerals included limestone. Evidence was admitted to show the intention of the parties as viewed from their situation, the situation of the property, and the circumstances surrounding the transaction. Defendants objected to this evidence on the ground that it violated the parol evidence rule, contending that the reservation, coupled with the language employed in describing the rights reserved, clearly showed that limestone was included therein, and therefore extrinsic evidence could not be permitted. While the rule contended for by defendants is fundamental, it is only applicable where no ambiguity exists, and the necessity of resorting to the description of the rights reserved along with the substance reserved is in itself some indication that what is included in the substance reserved is not clear.

2. MINES AND MINERALS — Whether Limestone is a Mineral. — There is no doubt that limestone is a mineral in the scientific or geological sense, which classifies all matter as animal, vegetable or mineral. But it is rare, if ever, that mineral is intended in this sense in the ordinary trading transactions about which deeds and contracts are made.

3. MINES AND MINERALS — Mineral Varies in Meaning. — The term "mineral" is ordinarily used to denote a class of things less comprehensive than the scientific definition. Just what the term includes varies in different instances, and what the term includes differs as the facts of each case differ.

4. PAROL EVIDENCE — Construction of Reservation of Metals and Minerals — Surrounding Circumstances. — In construing the word "minerals" in a deed or reservation the courts attempt to ascertain what the parties intended, determining this from the language employed in the instrument, if that may be done with certainty, and if not, then calling to their aid the facts and circumstances surrounding the transaction, and the intention of the grantor if it can be ascertained.

5. MINES AND MINERALS — Reservation — Whether Reservation of Metals and Minerals Includes Limestone — Case at Bar. — In the instant case the chief question at issue was whether a reservation in a deed of metals and minerals included limestone. It was well known to all that the section where the deed was to operate was a limestone country. Limestone was everywhere on the land in question. It was a part of the soil, and a conveyance reserving the limestone with the right to remove it would reserve practically everything and grant nothing. In this limestone country, where a grant of land is made, and the minerals and right to remove them are reserved, the language ought to be clear and specific to justify a construction that would allow the reservation to take back or destroy the thing that was granted.

6. DEEDS — Construction — Strict Construction Against Grantor — "Minerals" Restricted by Custom of Country. — It is a familiar rule of construction that the language of a grant is to be taken most strictly against the grantor; and further, in doubtful cases, "minerals" will be restricted to the meaning given it by the custom of the country.

7. MINES AND MINERALS — Reservation of All Metals and Minerals of Every Kind and Character — Limestone — Case at Bar. — A deed reserved all the metals and minerals underlying the land conveyed, together with the right to enter the land and to excavate for such metals and minerals, and the right to mine, dig and remove such metals and minerals, and the right of ingress and egress for mining to be done with as little injury to the growing crops as conveniently might be. The land conveyed was in a limestone country and the right to remove the limestone would practically destroy the use of the property for agricultural purposes.

Held: That the limestone was not included in the reservation of the metals and minerals.

8. MINES AND MINERALS — Estoppel and Laches — Estoppel of Grantee to Claim Title to Limestone — Case at Bar. — In the instant case grantees in a deed claimed to own the limestone in the land conveyed, notwithstanding a reservation by the grantor of minerals and metals. It was claimed that the grantees recognized the claim of the grantor to own the limestone from the date of the deed till suit was brought more than twenty years afterwards, and therefore were estopped to deny the grantor's title. The question involved was a question of title, therefore the conduct of the grantees would not have the effect to divest them of a title actually owned. If the title actually passed to them, their thinking or acting as if it did not would not change the effect of the deed.

9. ESTOPPEL — Laches — Reliance on Advice of Counsel as Excuse for Failure to Bring Suit — Case at Bar. — In the instant case it was claimed that plaintiff recognized and acquiesced in the claim of defendants to own the limestone under a certain tract of land for more than twenty years. Plaintiffs on their behalf asserted that they relied on the advice of reputable attorneys that they did not own the limestone, and that defendants did, and while they were not satisfied with this advice, they did nothing further until another attorney advised them that they were the owners of the limestone.

Held: That plaintiffs' reliance upon the advice of reputable attorneys was a sufficient explanation of their failure to act, and there was no such laches or estoppel as barred the plaintiffs from asserting their title.

10. MINES AND MINERALS — Action for Royalties — Limitation of Actions — Case at Bar. — A deed reserved the metals and minerals. On the theory that limestone was a mineral the grantors had for a certain royalty authorized a limestone company to remove the limestone under the land. The grantees in an attachment suit claimed that the heirs of the grantors owed them $9,000.00 in royalties paid the heirs by the limestone company from 1918 to May 4, 1921.

Held: That as this suit was brought in 1925, plaintiffs' claim was barred by limitation, notwithstanding section 5811 of the Code of 1919, as that section, while it might have applied to a suit by the limestone company against the heirs, could not apply to the present action as the grantees had not paid the heirs any money.

11. MINES AND MINERALS — Trespass — Limestone Company Having License to Remove Limestone by Both Grantors and Grantees in a Deed Reserving Metals and Minerals — Case at Bar. — A deed reserved the metals and minerals. The grantees granted to a limestone company the right to remove limestone and the grantors' heirs entered into a similar contract with the limestone company. Plaintiffs, the grantees under this deed, brought this action against the grantors' heirs for damages for trespass in causing the removal of the limestone from the plaintiffs' property.

Held: That as the plaintiffs themselves had authorized tghe limestone company or its predecessor to remove the stone, the removal was not trespass.

Appeal from a decree of the Circuit Court of Giles county. Decree for complainants. Defendants appeal.

The opinion states the case.

Arthur B. Hodges, Price, Smith & Spilman and Greever & Gillespie, for the appellants.

W. B. Snidow, W. J. Henson, Hall & Buford, Martin Williams, M. P. Farrier and Tazewell Taylor, for the appellees.

WEST, J., delivered the opinion of the court.

By deed dated January 21, 1901, J. L. Beury and wife conveyed to H. B. Shelton and H. L. Phlegar two certain tracts of land on New river in Giles county, Virginia, subject to the following exceptions and reservations, set forth in the deed: "* * * excepting and reserving from this conveyance to the male party of the first part in the two said tracts of land, all the metals and minerals of every kind and character whatsoever in and underlying the entire body of said two tracts of land hereby conveyed, together with the right at all times to enter upon the said tracts of land and to excavate therein and thereon for such metals and minerals, and the right to mine, dig and remove from said tracts of land all such metals and minerals, and the right to ingress, egress and regress over and through said lands for the purpose of mining, digging and removing therefrom any and all metals and minerals therein and thereon, said mining, digging and removing the metals and minerals from said lands to be done with as little injury to the growing crops of the parties of the second part, and their assignees and tenants, as conveniently and reasonably may be."

Upon the death of J. L. Beury his interest in the property and property rights reserved in the deed descended to his heirs at law.

On February 12, 1916, Phlegar and Shelton entered into a contract of lease with C. A. Klotz by which they leased to Klotz for eight years, with the privilege of an extension, the Beury tract and an adjoining tract of land owned by Phlegar and Shelton. This lease gave Klotz, his heirs and assigns, the right to quarry and remove limestone from said lands at a cost of one cent per cubic yard.

Subsequently, Klotz assigned all his interest in the lease to the Virginian Limestone Corporation.

On July 25, 1918, the heirs at law of J. L. Beury entered into an agreement with the Virginian Limestone Corporation, by which they conveyed to the corporation "the exclusive right to quarry and remove, within the time, in the manner and upon the terms and conditions hereinafter set forth, all the limestone in and underlying all those two certain tracts of land situate, lying and being on New River, in Giles county, Virginia, being the same land conveyed by the deed of January 21, 1901," above mentioned.

The Virginia Limestone Corporation quarried and removed limestone...