Phillips v. Fox

• Decision Date: 14 April 1995
• Docket Number: No. 22194,22194
• Court: West Virginia Supreme Court
• Parties: , 131 Oil & Gas Rep. 414 Don PHILLIPS, Appellant, v. Steven FOX and Debra Fox, His Wife, and Mabel Fox, Appellees. Mabel FOX, Appellee, v. Don PHILLIPS, Appellant.

Page 327

458 S.E.2d 327

193 W.Va. 657, 131 Oil & Gas Rep. 414

Don PHILLIPS, Appellant, v. Steven FOX and Debra Fox, His Wife, and Mabel Fox, Appellees.

Mabel FOX, Appellee, v. Don PHILLIPS, Appellant.

No. 22194.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 28, 1995.

Decided April 14, 1995.

Syllabus by the Court

The grant of a right to surface mine may be express or implied. The right to surface mine will only be implied if it is demonstrated that, at the time the deed was executed, surface mining was a known and accepted common practice in the locality where the land is located; that it is reasonably necessary for the extraction of the mineral; and that it may be exercised without any substantial burden to the surface owner.

David R. Rexroad and Steven B. Nanners, Rexroad & Rexroad, Buchannon, for appellant.

J. Thomas Lane and Charles B. Dollison, Bowles Rice McDavid Graff & Love, Charleston, for appellees.

McHUGH, Justice:

This is an appeal from the August 24, 1993 order of the Circuit Court of Randolph County prohibiting appellant, owner of a severed mineral estate, from conducting surface mining ¹ activities on appellees' surface estate absent an express right to do so. ² This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, the order of the circuit court is reversed and this case is remanded.

I Factual and Procedural Background

The parties herein, appellant, Don Phillips, and appellees, Steven and Debra Fox and Mabel Fox, jointly stipulated and agreed to the following facts, all of which were adopted by the circuit court in its August 24, 1993 order:

By order of the Circuit Court of Randolph County, dated August 29, 1988, Davis Elkins v. Paul Phillips, et al. and Davis Elkins v. Don Phillips, et al., Civil Action Numbers 88-C-98 and 88-C-192, respectively, were consolidated and suit was instituted for the partition of seven tracts of land located in Middle Fork District, Randolph County, West Virginia. The tracts were owned jointly by the parties to the consolidated suit. In its order of October 3, 1988, the circuit court determined "the seven tracts of land [to be] so varied in composition and [to] have such diverse fractional ownership interests that partition cannot be conveniently made[.]" It, accordingly, ordered "that a partition sale of the real estate ... shall be had without the appointment of commissioners to independently determine the susceptibility of the property for partition." ³ (footnote added).

The circuit court, by order of November 1, 1988, ordered the partition sale to take place on November 12, 1988 at the Randolph County Courthouse, Elkins, West Virginia. The circuit court entered no other orders concerning how the property was to be sold.

The subject real estate was advertised for sale in "The Inter-Mountain," a newspaper of general circulation in Randolph County, once a week for three successive weeks. ⁴ At the real estate sale, held on November 12, 1988, the special commissioners offered first the surface of each tract for sale and then the minerals underlying each tract. However, no definition was given either the word "surface" or "minerals" nor was mention made of any rights which were being sold with the minerals, particularly as such rights might affect the surface.

Appellees were the high bidders for the surface, offering the sum of $248,000, while appellant was the high bidder for the minerals, offering $13,500. Following the bidding, on November 18, 1988, the respective purchasers paid the amount of their bids, which were accepted by the special commissioners.

One of the special commissioners, Stephen Jory, prepared the deeds for the purchasers, at which time appellant requested that his deed include language giving him rights to mine the coal. The issue of mining rights was addressed but not resolved at a hearing held in conjunction with confirming the sale of the surface and minerals. The circuit court, at the December 19, 1988 hearing, deferred ruling upon the issue of mining rights, including whether surface mining would be permitted under the proposed deed. By order entered December 19, 1988, the circuit court confirmed the sales of both the surface and minerals and directed the special commissioners to deliver deeds to the respective purchasers.

Accordingly, the special commissioners conveyed the surface to appellee Mabel Fox and the underlying minerals to appellant, each by deed dated December 19, 1988. Both deeds contained the following reservation:

The Special Commissioner [sic] reserve, for the benefit of the purchaser of the minerals underlying the real estate herein conveyed, the perpetual rights, privilege and easement of entering onto the surface to prospect, explore, mine, extract, produce, store, procure, transport, market and dispose of any and all of the oil, gas, coal and other minerals by any method or machinery now employed. ⁵

(footnote added).

In addition to these stipulated facts, the record indicates that on or about April 23, 1991, appellant went onto the surface and attempted to drill test holes in the strata and overburden in order to determine the coal's feasibility for mining. Appellees resisted appellant's presence on their land and his attempt to drill holes in it and to commence surface mining operations. ⁶ Both the appellant and the appellees moved for temporary restraining orders, each against the other and, by order of May 6, 1991, following a hearing on the matter, the circuit court ordered the following: that the cases be consolidated; that appellant complete within two days the drilling of "test holes" to determine the feasibility of coal mining, without interference from appellees; that, upon completion of the drilling, all equipment used for testing be removed from the surface; that the surface be reclaimed; and that appellant refrain from conducting "any further prospecting or other acts associated with mining operations" until the rights of the respective parties are determined.

The parties subsequently sought a declaration from the circuit court ⁷ interpreting the two deeds and, particularly, the appellant's right to mine and extract the coal by the surface mining method. Following a hearing on the matter, the parties submitted the aforementioned stipulated facts and agreed that the court should decide the case based upon such stipulated facts, memoranda and pleadings. Accordingly, by order of February 10, 1993, the circuit court found that the "surface" conveyed to appellees "includes all of the land from the space overhead to the center of the earth except only for the oil, gas, coal and other similar minerals which can be mined and extracted without destruction of the surface[;]" that the "oil, gas, coal and other minerals" conveyed to appellant "includes all of the oil, gas, coal and other similar minerals which can be mined and extracted without destruction of the surface." The order further stated that "[o]wnership of the oil, gas, and coal and other similar minerals as described in the deed to [appellant] ... includes such rights to use the surface for the extraction of the oil, gas, coal, and other similar minerals as are reasonable and necessary, and such rights do not include the right to destroy any portion of the surface by surface mining, by removing support, or by any other mining method or operation which would destroy the surface."

On February 19, 1993, appellant filed a motion for reconsideration of the circuit court's February 10, 1993 order on the basis that said order "fails to provide for findings of fact and conclusions of law of the Court in order to determine the reason for the Court's ruling." At the hearing on appellant's motion for reconsideration, held on June 18, 1993, the circuit court reconsidered the parties' arguments on the merits of the case, and, for the first time, considered a motion that it should correct a "scrivener's error" in appellant's deed, changing the word "reserve" in the reservation clause to "grant." Also at the hearing, the parties agreed to submit to the circuit court a revised final order to supersede the previous one and to address additional matters raised at the hearing.

In its final order of August 24, 1993, the circuit court adopted and set forth the parties' stipulation of facts previously filed and made numerous conclusions of law including, inter alia, that based upon the facts and circumstances of the case, the respective deeds issued by the special commissioners "must be viewed as having conveyed the exact property which was sold at the sale, without the addition of rights or imposition of burdens not expressly made a part of the sale." ⁸ (footnote added). It is from this order that appellant now appeals.

II Standard of Review

In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review. See syl. pt. 1, Burnside v. Burnside, No. 22399, --- W.Va. ----, 460 S.E.2d 264 (Mar. 24, 1995).

When an action is tried upon the facts without a jury, the circuit court "shall find the facts specially and state separately its conclusions of law thereon ... [and these] [f]indings ... shall not be set aside unless clearly erroneous[.]" Fed.R.Civ.P. 52(a). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948). However, a reviewing court may not overturn a finding simply because it would have...