Plaintiff v. Hope Natural Gas Co.
| Decision Date | 28 September 1915 |
| Citation | 76 W.Va. 649 |
| Court | West Virginia Supreme Court |
| Parties | Moore et al. v. Hope Natural Gas Co. |
The grant of an easement "to lay, maintain, operate and remove" an oil and gas pipe line, the grantee to pay all damages "to crops and fences", authorizes an entry on the right of way to make repairs, and superadds no other liability except for injuries resulting from the negligent or wanton exercise of the right thereby conferred, (p.651).
Such grant is competent evidence of the lawfulness of an entry thereunder, and, when tendered, should he admitted, (p. 651).
a receipt by the grantor of such easement, acknowledging payment "in full for all damages on any and every account caused by or arising from laying, maintaining and operating" such pipe line, while owner of the servient land, the terms thereof, when properly construed, not necessarily comprehending subsequent injuries, does not operate as a release, or accord and satisfaction, barring him or his vendees from recovery for such injuries, (p. 651).
The term "crops", used in such grant providing payment for injuries thereto, will, nothing appearing therein to the contrary, be given its usual and ordinary meaning as comprehending only such products of the soil as are annually planted, severed and saved by manual labor, as cereals, vegetables, grass maturing for harvest or harvested, etc., but not grass on lands used for pasturage, (p. 655).
Damages to crops, as so defined, is measured by their market value at the time and place of injury, and to fences, when readily repairable, is measured by the cost of material and labor, which will, when properly applied, restore the premises to their condition before the interference, (p. 655).
Error to Circuit Court, Wetzel County.
Action by J. P. Moore and others against the Hope Natural Gas Company. Judgment for plaintiffs, and defendant brings error.
Reversed, and, new trial awarded.
A. B. Fleming, Charles Powell, and Kemble White, for plaintiff in error.
By a sealed instrument dated July 15, 1907, duly recorded Leonard Moore, for a valuable consideration paid, granted defendant, Hope Natural Gas Company, an easement over certain lands owned by him in Wetzel county, "to lay, maintain, operate and remove a pipe line for the transportation of oil and gas" from the place of production to market, "with the right of ingress and egress to and from the same".
Defendant agreed therein "to pay any damages which may arise to crops and fences from the laying, maintaining, operating and removing said pipe line, the damages if not mutually agreed upon to be ascertained and determined" by arbitrators selected in the manner specified in the grant, the awards of any two of them to be final and conclusive. Pursuant to such, authority, and with the knowledge of plaintiffs prior to their acquisition of the title, defendant entered on the land, laid its line, and since continuously has operated it under such authority.
Subsequent to the date of the conveyance by Leonard Moore to plaintiffs, defendant again entered on the lands, as lawfully it could under the right of way contract, and thereon made certain excavations, in the record denominated "bell holes", according to the parlance of the oil business, the purpose of the excavations being repair of the section joints by substitution of new for old rubber appliances to prevent leakage. For the recovery of damages alleged thereby to have been occasioned to crops and fences, plaintiffs instituted this action before a justice, and recovered judgment for the amount of their claim, and also judgment upon appeal to the circuit court but for a less amount. On writ of error, defendant seeks reversal upon several assignments on the record and in argument.
The first assignment noticed goes to the very foundation of plaintiffs' right to maintain the action. Under this head, defendant sought to bar recovery by the introduction in evidence, refused by the trial court, of a receipt by Leonard Moore, claimed to be a release from all damages thereafter resulting from the maintenance of the pipe line, or as an accord and satisfaction for all subsequent damages, binding on plaintiffs and their grantor, and consequently operating as an estoppel against them or as a bar to any recovery in this action. The terms of that paper are:
Giving the receipt the effect ascribed, as construed-by defendant, the question arises whether plaintiffs are estopped or barred from recovery for injuries to their lands occurring subsequent to its date. The answer to this question involves the proper construction of that paper. The important terms to be noticed are the words '' caused by or arising from laying; maintaining and operating a pipe line".
But is the receipt susceptible of that construction? "Caused" is a perfect participle, and imports acts already done. The receipt, therefore, would cover past injuries to the land. Of that no doubt can exist. "Arising", while having a progressive and prospective meaning in some circumstances, usually signifies the present. Most frequently, indeed generally, it denotes immediate present, and only occasionally implies future events or occurrences. When we speak of "fog rising from the river", or "clouds rising in the east", the expressions import an instant progressive occurrence, and not one that may arise in the future, however probable it may be. Though the present participle may, it seldom does, include a future event of a similar nature. It does not import futurity. So that the construction contended for by defendant necessarily requires the insertion of "heretofore" before "caused" and "hereafter" before "arising".
Can it reasonably be said the parties contemplated the implication now sought to be drawn from the language of the receipt? The established rules require that all written instruments be construed in view of the purposes contemplated by the parties when executing them. Did they intend the receipt to be in full settlement of all claims for injuries theretofore and thereafter caused by or arising from any act performed or to be performed by defendant under and by virtue of the easement? The sanction of that construction might effectively operate as a substitution of an agreement not assented to or contemplated by both of them. But, in our view of this case, an expression of an opinion as to the proper construction to be given to that paper is not essential. For, whether the receipt was intended to and in fact does absolve defendant from liability for the natural and unavoidable consequences of an act carefully and prudently done by virtue of the grant, it would not have that effect or so operate if such acts were carelessly and negligently performed. From such acts, though occasioned while he is engaged in the exercise of a lawful granted right, a defendant can not by contract exonerate himself. Maslin v. Railroad Co., 14 W. Va. 180; Brown v. Express Co., 15 W. Va. 812; Berry v. Railroad, Co., 44 W. Va. 545; Johnson v. Railroad Co., 86 Va. 975; Shannon v. Railroad Co., 104 Va. 645.
For, virtually, the charge informally made by the process requiring defendant to answer the complaint made by plaintiffs, and their statement of the.account sued on and the evidence offered in its support, is that the excavations were negligently made, resulting in injury to crops and fences which could have been avoided by exercise of ordinary care and prudence. Effectually, such is the charge made against defendant. Although...
To continue reading
Request your trial