Bruen v. Thaxton
| Decision Date | 30 November 1943 |
| Docket Number | C.C. No. 670. |
| Citation | 28 S.E.2d 59,126 W.Va. 330 |
| Parties | BRUEN et al. v. THAXTON et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
he used, when, in sale of his land, he used different words, phrases and methods to except, reserve or option various types of minerals.
Blue, Dayton & Campbell, of Charleston, and Root, Clark, Buckner & Ballantine, of New York City, for plaintiffs.
W T. Homberg, Osman Swartz, Harold A. Ritz, and B. J Pettigrew, all of Charleston, for defendants.
On March 2, 1854, Alexander M. Bruen made a deed by which he conveyed to Robert Thaxton a tract of 125 1/4 acres of land located in Kanawha County, referred to in the pleadings as 125 acres, subject to an exception and reservation reading as follows: "Excepting and reserving all the Coal and Iron minerals found in or upon said land to the said Alexander M Bruen his heirs and assigns, with rights of way of ingress and regress necessary to the full enjoyment and use of this reservation and granting to the said Thaxton license to use such quantities of said minerals as may be required for his household and domestic purposes."
Said deed will be hereinafter referred to as the "Bruen-Thaxton deed", and the exception and reservation as "reservation". The plaintiffs are the successors in title to whatever was reserved and excepted by the language of the deed quoted above.
Robert Thaxton continued as the owner of the said tract of land until January 3, 1880, on which date he conveyed the same to Monroe S. Thaxton, by a deed, the habendum clause of which contains the following: "To have and to hold the said tracts of land unto the said Monrow S. Thaxton his heirs and assigns forever, the minerals are reserved to A. M. Bruen and further that said parties of the first part will warrant generally the property hereby conveyed."
A number of conveyances of the said land followed, in most of which some reference is made to the deed of January 3, 1880. H. H. Thaxton finally became the owner, and on June 14, 1919, conveyed the same to G. W. Facemyre and Cora Facemyre, reserving, however, a one-half interest in the oil and gas therein, with the usual mining rights and privileges. On January 16, 1935, G. W. Facemyre and Cora Facemyre leased said land to William O. Ziebold for oil and gas purposes; and on May 13, 1936, H. H. Thaxton and wife leased to the said Ziebold, for the same purposes, 62 1/2 acres, which is assumed to represent the interest claimed by them in the oil and gas in the 125 acre tract. It appears from the record, that these two leases were assigned by Ziebold to the United Carbon Company, and by it to the United Fuel Gas Company, which latter company now claims to be entitled to develop the oil and gas in said land under the leases aforesaid. On November 5, 1939, G. W. Facemyre and Cora Facemyre conveyed the 125 acre tract to Roy L. Facemyre and Minnie M. Facemyre, reserving to the grantors, for and during their natural lives, a one-half undivided interest in the oil and gas therein, with the remainder to the grantees in said deed.
The plaintiffs, claiming to be the owners of the oil and gas in the tract of 125 acres of land, under the exception and reservation of "all the coal and iron minerals" contained in the Bruen-Thaxton deed, instituted this suit, in the Circuit Court of Kanawha County, for the purpose of having removed, as a cloud upon their alleged title thereto, certain deeds and other writings purporting to deal with and vest title to and rights in said oil and gas, as the property of persons and corporations other than the plaintiffs. The bill of the plaintiffs was filed at April Rules, 1941, and the following persons and corporations were made parties defendant thereto, namely: H. H. Thaxton and Florence C. Thaxton, his wife, G. W. Facemyre and Cora A. Facemyre, his wife, William O. Ziebold, United Carbon Company, a corporation, and United Fuel Gas Company, a corporation. The prayer of their bill reads as follows: "Being without remedy, save in a court of equity, plaintiffs pray that the title of the plaintiffs to the oil and gas underlying said tract of 125 acres may be established and quieted; that the leases exhibited and identified as 'the Facemyre-Ziebold Lease' and 'the Thaxton-Ziebold Lease', and the deeds exhibited and identified as 'the Thaxton deed of June 14, 1919', and 'the Facemyre deed of November 15, 1939', to the extent that said deeds purport to reserve any interest in the oil and gas underlying said tract of 125 acres, may be cancelled and set aside as clouds upon the plaintiffs' title to the oil and gas underlying said tract of 125 acres; that the defendants William O. Ziebold, United Carbon Company, and United Fuel Gas Company may be required to make discovery as to the matters hereinbefore alleged with respect to which the plaintiffs have prayed for a discovery; and may plaintiffs have such other, further, general and special relief as the nature of their cause may require and, in duty bound they will ever pray, etc."
On May 15, 1941, in open court, defendants United Fuel Gas Company, William O. Ziebold and United Carbon Company tendered and asked leave to file their joint and separate demurrer and answer to the plaintiffs' bill, and the same were ordered to be and were filed. Subsequently, the said defendants, over the objection of the plaintiffs, were permitted to withdraw their demurrer; whereupon the plaintiffs tendered their demurrer to the said answer, and also their motion to strike out paragraph VI thereof, which demurrer and motion the court ordered filed. At a later date, March 12, 1943, the court sustained plaintiffs' motion to strike out paragraph VI of the answer aforesaid, and said answer was amended accordingly. The court then overruled plaintiffs' demurrer to the said answer, as the same was amended by the court, and upon the joint application of the parties to the suit, and upon its own motion, certified to this court the questions arising upon the demurrer and motion of the plaintiffs aforesaid, and on this record we docketed the cause.
Paragraph VI of the answer filed as aforesaid alleges, in effect, that as early as 1851, Alexander M. Bruen began the conveyance of tracts of land out of what is known as the Sheba tract, a large tract of approximately 47,000 acres then owned by said Bruen; that from time to time he executed a large number of deeds, many of which contained the identical reservation as that involved in this suit; that grantees therein had assumed to own the oil and gas in lands conveyed by deeds containing such reservation, and had leased and otherwise disposed of the same as their property; that developments, involving large expenditures of money, had resulted, of which the plaintiffs had both constructive and actual notice, over a period of many years; and that until the institution of the pending suit the said plaintiffs had neither attempted to interfere with such development and expenditures, nor asserted claims to the oil and gas so developed. By reason of what the respondents refer to as "the inexcusable and unexplained delay, inaction and inactivity on the part of the plaintiffs over a period of many years and in not long since asserting their purported claim to the oil and gas underlying the tract of land here involved and other similarly affected" they plead laches against the plaintiffs' claim.
The trial court having held that the reservation contained in the Bruen-Thaxton deed was unambiguous, we are of the opinion that paragraph VI had no proper bearing on the question at issue, and the action of the court below in striking the same from the said answer is affirmed.
The order of the court below in overruling the demurrer to the answer of the respondents contains the following: "The Court is further of the opinion, and it is accordingly adjudged, ordered and decreed, that the terminology of the reservation contained in said deed (referring to the Bruen-Thaxton deed) and above set forth connotes the plain, explicit and commonly accepted understanding of the words 'coal and iron minerals' and no more and no less, and that there is no uncertainty which requires resort to any rule of construction other than the consideration of the phrase itself, and accordingly the Court is of the opinion that the oil and gas mineral interests were not reserved to the grantor in said deed but passed to the grantee therein."
The questions certified, arising on plaintiffs' demurrer to the answer filed, and amended by the court are:
A reading of the Bruen-Thaxton deeds makes it perfectly clear that Bruen did not intend to except and reserve all of the minerals in the land he conveyed. Had he so intended, he would have reserved the minerals without qualifying words. We think it clear that in 1854 the word "minerals" would have been construed to include coal, oil,...
To continue reading
Request your trial