Dolan v. Dolan

• Decision Date: 05 December 1911
• Citation: 73 S.E. 90,70 W.Va. 76
• Parties: DOLAN et al. v. DOLAN et al.
• Court: West Virginia Supreme Court

73 S.E. 90

70 W.Va. 76

DOLAN et al. v. DOLAN et al.

Supreme Court of Appeals of West Virginia.

December 5, 1911

Submitted February 8, 1910.

Syllabus by the Court.

Quære what does the word "surface" alone, without qualifying words, in a devise of land mean? Does it pass minerals in the land?

The will in this case confers upon Michael P. Dolan the land devised to him, including minerals, except coal.

(Additional Syllabus by Editorial Staff.)

Where testator devised to his son the surface of his farm excepting coal underlying the same, the word "surface" is more limited than the word "land," and prima facie means only "vestimenta terra," but may be used in a secondary sense to denote the whole of the soil down to the center of the earth, except the coal, and, when land is purchased with the exception of mines and minerals, the purchase includes, not merely the surface, but the whole of the subsoil which does not consist of mines and minerals, and surface means not the mere plane surface, but all of the land except mines.

Robinson, J., dissenting.

Charles Powell, Kemble White, and J. E. Law, for plaintiffs in error.

Davis & Davis and Osman E. Swartz, for defendants in error.

BRANNON J.

Patrick Dolan died owner of a very considerable landed and personal estate, leaving five children, John J. Dolan, Mary, Catherine, Anna J., and Michael P. Dolan. He left a will. Its fourth clause reads as follows: "I will and devise to my son, Michael P. Dolan, in fee the surface of my farm at Wolf Summit containing three hundred and seventeen acres, also six acres of the coal underlying said three hundred and seventeen acres to be located around the dwelling houses and buildings on said three hundred and seventeen acres, so as to preserve and protect the said buildings when the residue of the coal underlying the said three hundred and seventeen acres is at any time hereafter mined or removed." In clause 7 is the following language: "I further will and devise to my said daughter Catherine all the coal underlying the said tract of three hundred and seventeen acres of land hereinbefore devised to my son Michael P. Dolan, with the exception of six acres of the coal hereinbefore reserved and devised to my said son Michael P. as hereinbefore mentioned." By other clauses he made bequests and devises. To his wife his furniture during life, with remainder to Anna J. and Catherine Dolan, and $1,000 money; and to John J. Dolan 289 acres of land; to his daughter Mary $1; to Michael P. Dolan all live stock and farming utensils; to Catherine Dolan $2,000, to be paid by John J. Dolan; to Catherine Dolan a note on Robert Hoggsett for $2,510.33 and horses; to Annie J. Dolan a like note on Hoggsett; to Anna J. Dolan a brick house in Clarksburg, and a frame house in Wilsonburg; to a son of John J. Dolan a farm of 100 acres and a lot of live stock; to Catherine and Annie J. all money in bank after payment of $1,000 legacy to his wife.

Michael P. Dolan, claiming to own the oil and gas in the tract of 317 acres devised to him by the fourth clause of the will, leased the same to the South Penn Oil Company for the production of oil and gas, and this company transferred to the Hope Natural Gas Company the gas right estate under the lease. Thus the right to develop oil under lease is vested in South Penn Oil Company, and right to develop gas is vested in the Hope Natural Gas Company. John J. Dolan, Mary Flanagan, Catherine Dolan Burns, and Annie J. Coleman, four of the children of Patrick Dolan, deceased, claiming right to oil and gas in the tract of 317 acres devised to Michael P. Dolan (except a part which they quitclaimed to him), made a lease to John W. Davis for development of oil and gas in a tract of 180 acres, that part of the 317 acres not quitclaimed, and Davis transferred such lease to the Washington Gas Company. Later John J. Dolan, Mary Flanagan, Catherine Dolan Burns, Annie J. Coleman, and the Washington Gas Company brought an action of ejectment against Michael P. Dolan, South Penn Oil Company, and Hope Gas Company to recover the oil and gas in that 180 acres, and recover verdict and judgment for the same, and those defendants come to this court by writ of error.

Did Michael P. Dolan take the oil and gas under his father's will? If he did, the plaintiffs have no title to them. What does the word "surface" in a will mean? Or, rather, what does it mean as used in this particular will, for that is our question?

Briefs of counsel upon this and other questions show great ability and research, but cite a legion of diverse authority confusing and bewildering to the mind. It is said that there is no subject of law on which cases are less useful than wills, as no two are alike, and the particular intent of each, under its own provision, must be the guide. As to this word "surface," a brief says that the English and law dictionaries give it no definition useful in construction of legal writings. It will not do to define it by geometry, "a magnitude that has length and breadth, without thickness, superficies, as a plane surface or a spherical;" nor to define it as does the Standard Dictionary, "the exterior part of anything that has length, breadth and thickness, the outside of a body." These definitions will not help in this case. They would not give the word "surface" in this will a depth of one inch in soil. Nor do the law authorities definitely define its legal meaning as applicable to land conveyance. Counsel for the plaintiff would limit the effect of the word to the arable or agricultural surface, the depth of the ploughshare. Does it go down to the center of the earth, taking all minerals under the maxim, "Cujus est solum, ejus est usque ad c lum et ad inferos"? I would say that a conveyance of surface of land, without more, means all the solum or land except minerals. Why not minerals? Because the word "land" is not used. If it were, it would take in minerals. The word "surface" is used, more limited, and the courts have said it excepts minerals. The testator has used this particular word never used in ordinary conveyances, which almost invariably use the word "land," which passes everything. Something is meant by the word "surface." McSwinney on Mines, § 33, says: "'Surface' or 'superficies,' prima facie, means, of course, nothing more than mere vestimenta terra. Surface may, however, be used in a secondary sense, to denote the whole of the soil down to the center of the earth, except the mines. Pountney v. Clayton, 11 Q. B. D. pages 833, 839, 840." When land is purchased, with an exception of the mines and minerals, the purchase includes, not merely the surface, but the whole of the subsoil, which does not consist of mines and minerals. Pountney v. Clayton, supra. "'Surface' means, not the mere plane surface, but all the land except mines." Pountney v. Clayton, S. R. Q. B. Div. p. 840.

Under this principle, devise to Michael P. Dolan by the fourth clause of the will of the 317 acres would except the oil and gas, and leave them in the testator's heirs. But we must look at other parts of the will...