Dingess v. Huntington Development & Gas Co.

• Decision Date: 15 February 1921
• Docket Number: 1828.
• Citation: Dingess v. Huntington Development & Gas Co., 271 F. 864 (4th Cir. 1921)
• Parties: DINGESS et al. v. HUNTINGTON DEVELOPMENT & GAS CO.
• Court: U.S. Court of Appeals — Fourth Circuit

271 F. 864

DINGESS et al. v. HUNTINGTON DEVELOPMENT & GAS CO.

No. 1828.

United States Court of Appeals, Fourth Circuit.

February 15, 1921

Maynard F. Stiles, of Charleston, W. Va., and C. S. Minter, of Logan W.Va. (Pendleton L. Williams, of Huntington, W. Va., on the brief), for plaintiffs in error.

W. C W. Renshaw and W. R. Thompson, both of Huntington, W.Va. (H A. McCarthy, of Philadelphia, Pa., and Z. T. Vinson and J. H Meek, both of Huntington, W. Va., on the brief), for defendant in error.

Before KNAPP, Circuit Judge, and ROSE, District Judge.

ROSE District Judge.

The defendants below are plaintiffs in error here, but it will be more convenient to refer to them and to their adversary in accordance with the positions they had in the trial court.

The plaintiff in an ejectment suit sought to recover from the defendants a number of tracts of land aggregating upwards of 1,300 acres, all parts of what are known as the Samuel Smith grants, the exterior bounds of which inclose some 206,000 acres, but from which previously granted tracts having a combined surface of 86,000 acres had been excepted. Of the land in controversy the plaintiff claimed the full ownership of over 1,200 acres and the mineral rights under some 165 more. The court instructed a verdict for the defendants for 11 acres, and for the plaintiff for all the rest, except 4 acres, and the jury gave the last to the plaintiff. Such of the defendants as have sued out this writ of error seek the reversal of the entire judgment, in so far as it affects them, and in the alternative to set it aside as to certain tracts or interests claimed by them.

Such of their objections as go to the whole case assail the admission of certain evidence given by the plaintiff for the purpose of sustaining the burden of proof resting upon it to locate the exterior boundaries of the Smith grants, and to show that none of the land within those boundaries, but excepted from the grants, included any part of the land claimed by defendants. We cannot feel that there is any substantial merit in any of them. The exterior lines of the Smith grant have been before established in other cases. There appears to be no real question as to their location. We do not find it necessary or expedient to consider whether any of the somewhat meticulous objections made to some of the testimony of one of the surveyors produced by the plaintiff are as a matter of technical law well founded. If all of them in which there is any shadow of substance are sustained, there would be enough proof left to justify the instruction given by the court that the plaintiff had shown an undisputed record title to all those portions of the Smith grants included in this litigation. The evidence by which the plaintiff attempted to show that none of the land it sought to recover was included in any of the tracts excepted from the Smith grants was, under the West Virginia law as we understand it, both admissible and, in the absence of any attempt at rebuttal, conclusive. Winding Gulf Colliery Co. v. Campbell et al., 72 W.Va. 474, 78 S.E. 384; Hector Coal Land Co. v. Jones et al., 79 W.Va. 627, 92 S.E. 102.

The purpose of rules of evidence is to ascertain the truth as to facts in issue, and not to take up the time of court and jury in listening to testimony as to something about which there is no real question. What has been said disposes of all the objections as to the rulings below, in so far as they affect by far the greater portion of the land in controversy. But as to that part of it in which confessedly plaintiff is not entitled to the surface other contentions are made. It appears that some 40 years ago the predecessors in title of the plaintiff had brought or threatened an ejectment suit against those through whom some of the defendants derived title. A compromise was made under the terms of which the plaintiff's grantors deeded the land with which we are now concerned to the predecessors in title of the defendants. Each of these deeds contained a provision by which the grantors reserved and excepted from its operation--

'all the minerals, mineral substances and oils of every sort and description, * * * with the privilege of mining, digging and excavating for said minerals, mineral substances and oils, and of boring and pumping for said oils, and of erecting and maintaining thereon all the necessary buildings, oil tanks, machinery and apparatus for working and operating all mines, pits, excavations and oil wells which now are or may be hereafter opened, worked and operated,' on any part of the real estate, and 'for storing and taking proper care of the products thereof. * * * '

The reservation also included all necessary rights of way, with the right and privilege to operate and maintain railroads and other roads and pipe lines, such as might be necessary to the successful and convenient discovery, working and operating of the mines, pits, excavations, and oil wells, and for carrying away the products thereof. The defendants say that the exceptions and reservations did not include natural gas, and they assign as error that the court below otherwise ruled, and that it refused to permit them to prove that at the time the deeds were made natural gas was not a commercial product in that neighborhood. In some states, such as Pennsylvania, grants or reservations of minerals, nothing else appearing, do not cover natural gas. Dunham & Shortt v. Kirkpatrick, 101 Pa. 36, 47 Am.Rep. 696; Silver v. Bush, 213 Pa. 195, 62 A. 832; Preston et al. v. South Penn Oil Co. et al., 238 Pa. 301, 86 A. 203.

Some 13 years ago the Supreme Court of Appeals of West Virginia, upon full consideration, declined to follow Dunham & Shortt v Kirkpatrick, supra, and held that a...