Collins v. Columbia Gas Transmission Corp.

• Decision Date: 11 December 1992
• Docket Number: No. 20919,20919
• Citation: 188 W.Va. 460,425 S.E.2d 136
• Parties: Howard COLLINS and Margaret Collins, His Wife, et al., Plaintiffs Below, Appellees, v. COLUMBIA GAS TRANSMISSION CORPORATION, et al., Defendants Below, Appellants.
• Court: West Virginia Supreme Court

Page 136

425 S.E.2d 136

188 W.Va. 460

Howard COLLINS and Margaret Collins, His Wife, et al Plaintiffs Below, Appellees, v. COLUMBIA GAS TRANSMISSION CORPORATION, et al., Defendants Below, Appellants.

No. 20919.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 1992.

Decided Dec. 11, 1992.

Syllabus by the Court

1. "A deed must be both delivered and accepted to operate as a deed." Syl., Campbell v. Fox, 68 W.Va. 484, 69 S.E. 1007 (1910).

2. "Delivery of a deed by the grantor with intent that it take effect as his deed and its acceptance, express or implied, by the grantee are essential to its validity." Syl. pt. 3, Bennett v. Neff, 130 W.Va. 121, 42 S.E.2d 793 (1947).

3. "A deed must not only be delivered by the grantor but must be accepted by the grantee. Acceptance may be express by signing the deed or otherwise or may be implied from circumstances. The assent of the grantee will be presumed, where the deed is beneficial to him, until dissent appear. Where dissent or disclaimer appears, the deed is inoperative, and the title to the thing granted reverts to the grantor by remitter from such disclaimer." Syl. pt. 3, Guggenheimer v. Lockridge, 39 W.Va. 457, 19 S.E. 874 (1894).

4. "Documentary evidence establishing the acceptance of an ancient deed by a deceased grantee, such as ... his conveyance of the land referring to the deed as source of title, will prevail over proof of indefinite parol declarations by the grantee that he did not accept the deed." Syl. pt. 2, in part, Lynch v. Brookover, 72 W.Va. 211, 77 S.E. 983 (1913).

5. " 'Where conflicting theories of a case are presented by the evidence, each party is entitled to have his view of the case presented to the jury by proper instructions. Whitmore v. Rodes, 103 W.Va. 301 [137 S.E. 747 (1927) ]' Syllabus Point 2, Morris v. Parris, 110 W.Va. 102, 157 S.E. 40 (1931)." Syl. pt. 5, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988).

6. " 'Where [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested to do so.' Syl. pt. 3, State v. Foley, 128 W.Va. 166, 35 S.E.2d 854 (1945)." Syl. pt. 3, Blackburn v. Smith, 164 W.Va. 354, 264 S.E.2d 158 (1980).

7. " ' "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence." Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767.' Syllabus point 1, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957)." Syl. pt. 4, Cardinal State Bank, Nat. Ass'n v. Crook, 184 W.Va. 152, 399 S.E.2d 863 (1990).

8. " ' "In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved." Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).' Syl. Pt. 2, Jarvis v. Modern Woodmen of America, 185 W.Va. 305, 406 S.E.2d 736 (1991)." Syl. pt. 4, Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756 (1991).

H.L. Snyder, William Roy Rice, Benjamin N. Snyder, E. Forrest Jones, Jr., Albertson & Jones, Charleston, for appellants.

James W. St. Clair, St. Clair & Levine, Huntington, for appellees.

PER CURIAM:

This is an appeal by Columbia Gas Transmission Corporation, Columbia Coal Gasification Corporation, Columbia Natural Resources, Inc., and Laurel Creek Co., Inc. (the appellants), from a judgment order of the Circuit Court of Lincoln County upholding a jury verdict in favor of the appellees, heirs of the late Louisa Collins. The jury verdict and judgment order awarded title to the minerals underlying three tracts of land (consisting of five, eighty, and 457 acres, respectively) in Lincoln and Wayne Counties to the appellees. The appellees contend that their predecessors in title granted severance deeds to the appellants' predecessors in title whereby the appellants' predecessors were granted only title to the surface of the properties in question. The trial court refused to instruct the jury that the appellees' predecessors in title may be presumed to have accepted the severance deeds in the absence of direct proof to the contrary, because the severance deeds were beneficial to them. The appellants contend that the trial court's failure to so instruct the jury was reversible error, and that on the evidence presented, they are entitled to a new trial. For the reasons that follow, we agree.

The controversy in this case surrounds a series of severance deeds issued by the appellants' predecessors in title (A.A. Low, et al.) to the appellees' predecessors in title (the Collinses) in the late 1800's. Prior to the granting of the severance deeds, A.A Low, et al. brought an ejectment action against the Collinses in the United States Circuit Court for the Southern District of West Virginia. A.A. Low, et al., claimed the tracts of land in dispute in this case under land patents granted to their predecessor in title in 1796 and 1797. The record in this case shows that the Collinses were granted land patents to the same property by the Commonwealth of Virginia sometime after 1797. The ejectment action was brought by A.A. Low, et al., to remove the Collinses, who were in possession of the land at that time, from the property. The appellees admit that an ejectment action was filed against the Collinses, and that the action was successful. ¹ It is undisputed that the ejectment actions vested title to both the land and minerals in the appellants' predecessors in title.

Several months prior to the final order in the ejectment action, A.A. Low, et al., granted a severance deed to "Louisa Collins" for the 80-acre parcel of land. The actual severance deed is lost, but was recorded in both Lincoln and Wayne counties. The deed granted the surface of the tract to "Louisa Collins," but reserved the mineral rights to the land to A.A. Low, et al. The integrity of this severance deed is called into question by the appellees because it was (1) granted prior to the final disposition of the ejectment action, and (2) granted in the name of "Louisa Collins" several months prior to Louisa's marriage to George Collins, and therefore prior to Louisa's taking of the Collins surname. Apparently, this severance deed was recorded by Louisa's husband, George, in 1903. ² The severance deed to Louisa Collins was cited in a later lease agreement signed by Louisa, specifically acknowledging the reservation of minerals to A.A. Low, et al. ³ Louisa Collins also signed a deed granting a 160-acre tract of land and a 6-acre tract of land wherein the deed by "A.A. Low and others" was cited as source of title.

A.A. Low, et al. also succeeded in an ejectment action against George F. Collins in May of 1880 concerning the 457-acre tract of land. Over two years later, in September of 1882, A.A. Low, et al., executed a severance deed in favor of George F. Collins whereby Mr. Collins was given title to the surface of 305 acres of the property while A.A. Low, et al., reserved "all the minerals, mineral substances and oils" to themselves. George F. Collins was a predecessor in title to the appellees.

The 5-acre tract of land was conveyed to Isabelle Collins in 1882 (subject to a life estate in Isabelle's mother) by way of severance deed from A.A. Low, et al. ⁴ Again, A.A. Low, et al., reserved for themselves the minerals underlying the property while granting title in the surface to the appellees' predecessor in title. In a 1904 sale of timber interest in the property, Isabelle cited the A.A. Low severance deed as her source of title. Isabelle Collins was a predecessor in title to the appellees.

In all three severance deeds, the following language is found: "[T]he party of the second part hereby accepts this deed and the estate hereby conveyed upon the terms and conditions and subject to the exceptions and reservations herein contained and set forth." Although all three severance deeds were signed by A.A. Low, et al., none were signed by the Collinses.

At trial in this case, the appellants offered the following instruction as Instruction No. 6:

Columbia has offered evidence of three severance deeds from A.A. Low and others, which purport to grant to certain predecessors of the Collins Heirs, part or all of the surface of the Disputed Tracts herein. The Court instructs the jury that where a deed is in proper form, and the grantor has signed and acknowledged it for record and it is beneficial to a grantee, acceptance by the grantee will be presumed unless the dissent of the grantee is shown. Therefore, if you find that one or more of the three severance deeds executed by A.A. Low and others mentioned above was in proper form, signed and acknowledged by the grantors, then you must find that such severance deed was legally accepted unless you also find that the Collins Heirs have offered certain or reasonably conclusive proof that the grantee of such a severance deed actually dissented to accepting such deed. ⁵

The trial court refused to give this instruction.

On April 8, 1991, a Lincoln County jury found for the appellees. This verdict awarding title to both the surface and minerals of the disputed properties was entered by judgment order of the Circuit Court of Lincoln County on May 22, 1991. The appellants' motions for judgment notwithstanding the verdict and,...