Freeport Coal Co. v. Valley Point Min. Co., CC823

• Decision Date: 06 December 1955
• Docket Number: No. CC823,CC823
• Citation: 90 S.E.2d 296,141 W.Va. 397
• Court: West Virginia Supreme Court
• Parties: FREEPORT COAL CO. v. VALLEY POINT MINING CO. et al.

Page 296

90 S.E.2d 296

141 W.Va. 397

FREEPORT COAL CO. v. VALLEY POINT MINING CO. et al.

No. CC823.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1955.

Decided Dec. 6, 1955.

Syllabus by the Court.

A clause in a deed, conveying all the coal under a certain tract of land, 'reserving and excepting [to the grantor] from the said tract the upper vein of coal, locally known as the Three-foot vein and a sufficient quantity of lower veins for farm and domestic use, together with the right to dig and sell coal from the upper 3-foot vein, for farm and domestic use' is an exception of such upper vein of coal, and the grantee acquired no right or title thereto.

Robert T. Donaley, Morgantown, for plaintiff.

Jacob S. Hyer, Milford L. Gibson, Elkins, Cramer W. Gibson, Kingwood, for defendants.

BROWNING, Judge.

The Circuit Court of Preston County, on joint application of the parties, certified to this Court the questions arising on the demurrers of the plaintiff, Freeport Coal Company, to the separate answers of the defendants, Valley Point Mining Company and J. E. & H. K. Kelly, to plaintiff's bill of complaint seeking to restrain defendants from mining and removing coal from the Bakerstown or upper seam of a 194.6 acre tract of land in Preston County.

Plaintiff's bill alleges ownership of the Bakerstown seam in the plaintiff, and its predecessors in title, by virtue of a severance deed executed in 1902. This deed, designated 'Exhibit A' and filed with the bill, conveyed 'all the coal upon and underlying' a certain farm or tract of land, with all necessary rights, 'the said Grantors hereby expressly reserving and excepting from the said tract the upper vein of coal, locally known as the Three-foot vein and a sufficient quantity of lower veins for farm and domestic use, together with the right to dig and sell coal from the said upper 3 foot vein, for farm and domestic use and all rights to operate for oil, gas and other minerals.'

The defendants derive their right and title, by successive conveyances, from the grantors referred to in 'Exhibit A', the last conveyance being from J. E. Kelly to Hugh K. Kelly, dated February 11, 1954, and designated 'Exhibit B', and attached to the bill. This deed conveys 'all of that certain tract or parcel of real estate', less certain out conveyances not here material, and contains the following provisions: 'There is also reserved and excepted from this conveyance, in addition to the lands shown above, all the coal and mining rights as have been heretofore sold to other parties.' Also, 'The land hereby actually conveyed is assessed on the 1953 Land Book, Pleasant District, Preston County, West Virginia, as: Surface, 194.6 acres, Muddy Creek, in name of J. E. Kelly.'

It is alleged in the bill of complaint that the defendant, Valley Point Mining Company has been strip mining the Bakerstown or Three-foot seam of coal under an oral agreement with the defendants J. E. Kelly and Hugh K. Kelly, and selling such coal to the Monongahela Power Company, and the Potomac Edison Company.

The defendants answered separately, as heretofore noted, to which answers the plaintiff demurred, which demurrers were overruled. It is not deemed necessary to set out the matters contained in the separate answers, inasmuch as such matters are readily apparent in the questions certified to this Court, which may be briefly stated as follows: (1) The severance deed, 'Exhibit A', is clear and unambiguous in its terms and the exception contained therein created a mere license in the grantor to use the coal for 'farm and domestic use'; (2) Therefore, parol evidence is inadmissible to vary the legal effect of an unambiguous instrument, or to show an 'intention' of the parties different from that expressed in the instrument, or to show a 'practical construction' of the instrument different from that expressed therein; and (3) No lapse of time, during which there was an erroneous interpretation of the severance deed; adverse claim; payment of taxes thereon by defendants; or failure of plaintiff's predecessors to assert their claim; or nonuser by the plaintiff, can change the legal effect of the instrument.

This Court is in agreement with the contentions of both the plaintiff and the defendants that the deed in question is a clear and unambiguous instrument, and that to determine the intent of the parties, it is not necessary to resort to the rules of construction. The litigants are, of course, not in agreement as to the intent of the parties to the instrument as shown by the words they used, and each would have this Court reach a different conclusion as to what the parties meant by the language contained in the deed. The words 'for farm and domestic use' are common in oil and gas leases, but we find no case in this jurisdiction where a determination was made of the effect of such language in a reservation where coal was conveyed or leased.

The case of Bruen v. Thaxton, 126 W.Va. 330, 28 S.E.2d 59, 60, involved a similar provision set forth in the deed in this language: "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 reservationk and granting to the said Thaxton license to use such quantities of said minerals as may be required for his household and domestic purposes." Unfortunately, the controlling question in that case did not require consideration of the latter of that quotation, and it was not discussed in the opinion. However, the principles applicable to the general subject are well established. In Kohlsaat v. Main Island Creek Coal Co., 90 W.Va. 656, 112 S.E. 213, 216, this Court said: 'It is elementary that, when a written agreement is clear and unequivocal in its terms, its meaning must be determined by its contents alone, and the courts will not give it a meaning other than that clearly expressed.' There are, of course, many decisions of this Court to the same effect.

The plaintiff contends that the grantor in the severance deed reserved only a personal right to use coal from the upper or Bakerstown vein for farm and domestic use, and the right to dig and sell from that vein for farm and domestic use.

In Yukon Pocahontas Coal Co. v. Ratliff, 181 Va. 195, 24 S.E.2d 559, 561, a severance deed contained this clause: "The parties of the first part reserve one half an acre around the graveyard and also the rights to use coal for domestic purposes * * *." The court said: 'Finally, it is contended that the trial court erred in refusing to hold that 'the right to use coal for domestic purposes' was terminated upon the death of James M. Ratliff.' 'This contention is well founded. The language of the deed clearly indicates the reservation of a personal right which since the death of Ratliff has ceased to exist.'

The plaintiff maintains also that if the, grantor in...