Phipps v. Leftwich

Decision Date05 March 1976
Docket NumberNo. 750307,750307
PartiesBeulah C. PHIPPS et al. v. William Marcus LEFTWICH et al. Record
CourtVirginia Supreme Court

Glen M. Williams, Jonesville, for appellants.

Benjamin F. Sutherland, Clintwood, for appellees.

No brief filed on behalf of Glendy Short Lovegrove.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

The question raised in this appeal is whether the deed under which appellants claim title to coal in certain lands gives appellants the right to remove the coal by strip mining 1 or other surface mining methods. 2

By deed dated May 16, 1902, Wm. B. Sutherland and wife conveyed to Clintwood Coal and Timber Company the following estate in 1,423 acres of land in Dickenson County, consisting of two adjoining tracts described by metes and bounds, and containing 1,019 and 404 acres, respectively:

'All the coal, mineral and mineral products, all the oils and gasses all the salt, minerals and salt waters, fire and potters clay, all the iron and iron and iron ores, and all stone in on and under the herein after described tract of land, and have also this day sole to the party of the second part such of the standing timber not exceeding twelve inches in diameter as may be necessary for mining purposes, and the exclusive right of way for any and all rail road, tram roads that are now or may hereafter be located on the property hereinafter described either by said party of the second part, except as hereinafter provided, his heirs successors and assigns or any other person or corporation under the authority of said party of the second part his heirs successors and assigns upon the hereafter described tract of land, together to enter upon said tract of land and use and operate the same and the surface thereof free from further costs or damage in all or any manner that may deemed necessary or convenient for mining preparing for market and removing therefrom or otherwise utilizing all or any of the said coal or minerals or the coal or minerals and the manufacture of the same and shipping the said articles and products above named; without liability for injury to the surface of said land or to any thing thereon or thereunder by reason of the mining, manufacture or removal of said coal minerals, etc. or by reason of diverting confining or using the water or water ways on said property; for all which the party of the second part his heirs successors and assigns is hereby released from liability as well as to remove the products now owned or hereafter acquired by the said party of the second part his heirs successors and assigns in the free and full exercise and the enjoyment of the rights and privileges herein granted. It is understood and agreed that the free right of ingress and egress in, on, over, under and through said lands hereinafter described is also hereby sold and granted to the said party of the second part his heirs successors and assigns.

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'. . . It is expressly understood that the right to mine and use coal for household purposes on the premises is reserved to the parties of the first part provided however, that the said fire and potters clay and timber for mining privileges shall not apply to said 1019 acre tract.'

By deed dated January 26, 1911, Wm. B. Sutherland and wife conveyed to Jasper Sutherland two tracts containing a total of 1,843 acres, including the 1,423 acres. Mineral rights were expressly excepted from this conveyance.

Appellants, as successors in interest to Clintwood Coal and Timber Company, acquired title to the minerals and mineral rights conveyed to Clintwood by the 1902 deed. Appellees, as successors in interest to Jasper Sutherland, acquired title to a portion of the surface of the 1,423 acres.

Appellees filed their bill of complaint in the trial court, against appellants and others, seeking a declaratory judgment that the 1902 deed be construed not to permit 'stripping rights' on or under the 1,423 acres. Appellees alleged that appellants, as owners of the minerals and mineral rights, had permitted one D. Siddens to go upon the land with men and machinery and tear up the soil and destroy timber exceeding twelve inches in diameter, and that these actions would continue unless enjoined. Appellees prayed that appellants be restrained from exercising any rights 'not in contemplation of the parties' when the 1902 deed was executed.

Appellants filed an answer in which they asserted that the 1902 deed gave them the right to remove coal by 'the strip or open pit mining method', and that they had leased to Siddens only such rights as they had acquired under that deed.

Appellees concede that appellants are vested with title, not only to the coal and mineral rights in the 1,423 acres, but also to the surface of two parcels thereof, containing 107 acres and 30.89 acres, the precise locations of which are not disclosed by the record.

By final order entered December 2, 1974, pursuant to an opinion previously filed, the trial court ruled that the 1902 deed did not grant the right to remove coal and other minerals by 'surface mining, strip mining, open pit mining, auger mining, or any combination of methods of surface mining, whether or not hereinabove listed, the conveyance of such surface mining rights or 'stripping rights' not being within the contemplation of the parties to the deed . . ..' The order further provided that under the deed the grantee or its successors may employ such surface mining methods 'only with the consent of the grantors in said deed, or their successors', and enjoined appellants from mining coal by any form of surface mining on any part of the 1,423 acres.

The only witness in the case was appellee S. H. Sutherland, an attorney 93 years of age, who was the son of Jasper Sutherland and the nephew of Wm. B. Sutherland, grantor in the 1902 deed. S. H. Sutherland's testimony, given by deposition, tended to establish that Jasper, an illiterate Confederate veteran, acquired, lived on, and farmed the 1,423 acres continuously from 1895 until his death in 1936; that approximately 200 acres constituted cleared land; that Wm. B. Sutherland held legal title to the land in 1902 for the benefit of his brother, Jasper; that coal was believed to be the only mineral on the land; that Jasper received as consideration for the 1902 deed to Clintwood, the sum of $2,635, computed at only $1 per acre for the $1,019 acre tract, due to uncertainty concerning title to the coal thereon, and at $4 per acre for the 404 acre tract; that the 1902 market value of the cleared land was $10,000 and of the improvements $5,000; that in 1902 the timber on the two tracts was more valuable than the coal deposits; that in 1915 and 1919 Jasper sold timber on the property for the aggregate sum of $27,000; that the only mining method used in Dickenson County in 1902 was 'deep mining'; and that strip mining was not known in this county until the 1940's. The witness also testified that in 1919 he acquired 2/7ths of the stock in Clintwood Coal and Timber Company, and became president of the corporation.

Sutherland vividly described the effects of surface mining. In strip mining a large excavation or 'bench' is cut in and around a hillside by heavy machines which uncover and remove the coal. The excavation leaves a vertical 'highwall'. Large augers are used to bore into the face of this wall and extract coal left behind it beneath the overburden. The earth that is moved from the coal strata buries vegetation, and displaced rocks knock down timber. Stripping 'destroys . . . the value of the land'.

Sutherland testified that he had seen evidence of two strip mining operations on the 1,423 acres. Several years previously he had seen on the 404 acre that an excavation about thirty feet long and not more than one or two feet deep, which had been abandoned by the operator before Sutherland could find him. Subsequently, after Sutherland had ascertained that Siddens was preparing to strip mine on the 1,019 acre tract, this proceeding was initiated. The record does not show whether the strip mining operations observed by Sutherland were conducted on any part of the surface tracts owned by appellants.

Appellants contend that the broad language of the 1902 deed gave the grantee and its successors the right to strip mine. They rely on the grantee's right under the deed to enter upon the land 'and use and operate the same and the surface thereof free from further costs or damages in all or any manner' deemed 'necessary or convenient'. Appellants correctly assert that if the meaning of the language used is plain the instrument must be given effect accordingly. Yukon Poca. Coal Co. v. Ratliff, 181 Va. 195, 202, 24 S.E.2d 559, 562 (1943). Explicit language in a deed, granting the 'right to strip the surface' for fire clay, has been held sufficient in Pennsylvania to permit stripping, even though modern stripping methods were unknown at the time of severance. Heidt v. Aughenbaugh Coal Company, 406 Pa. 188, 176 A.2d 400 (1962). That deed specifically allowed the grantee to employ any type of mining which might 'hereafter', I.e., after 1915, be developed. No such explicit language is found in the present deed, however, and any surface mining rights of appellants can only arise by implication.

The fundamental rule of construction in Virginia is that the purpose or intent of a written instrument is to be determined from the language used in the light of the circumstances under which it was written. Traylor v. Holloway, 206 Va. 257, 260, 142 S.E.2d 521, 523 (1965). The intent of the parties to a deed is paramount and must be determined by construing the instrument as of the date and under the circumstances of its execution, although, in case of ambiguity, it is to be construed against the grantor. Ellis v. Commissioner, 206 Va. 194, 202, 142 S.E.2d 531, 536 (1965). In that case, a 1927 deed conveyed title to stone...

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  • Andrews v. Antero Res. Corp.
    • United States
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    ...of mineral rights should be allowed to take advantage of modern technology subject to the terms of the deed."); Phipps v. Leftwich , 216 Va. 706, 713, 222 S.E.2d 536, 541 (1976) (disallowing strip mining under relevant severance deed, but observing that the mineral owner "may, of course, ta......
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    ...Coal Co. v. Ratliff, 181 Va. 195, 24 S.E.2d 559, 563–64 (1943).In response, plaintiffs rely heavily on the case of Phipps v. Leftwich, 216 Va. 706, 222 S.E.2d 536 (1976), but Carmeuse rightly points out that Phipps is distinguishable. Phipps involved a grant of coal in a 1902 deed and addre......
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