O'Quinn v. Looney

• Decision Date: 26 January 1953
• Docket Number: No. 4008,4008
• Citation: 74 S.E.2d 157,194 Va. 548
• Parties: LONA O'QUINN AND OTHERS v. PATTIE LOONEY AND OTHERS. Record
• Court: Virginia Supreme Court

Page 157

74 S.E.2d 157

194 Va. 548

LONA O'QUINN AND OTHERS v. PATTIE LOONEY AND OTHERS.

Record No. 4008.

Supreme Court of Appeals of Virginia

January 26, 1953.

S. H. Sutherland and George C. Sutherland, for appellants.

Combs, Combs & Street, for appellees.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

This suit and two others were brought to settle controversies among the widow and children of George Looney over his estate. The three causes were heard together and one decree entered deciding the issues. This appeal from that decree raises only the question as to who is entitled to certain haulage royalties under a coal-mining lease made by George Looney and wife, Lona O'Quinn and husband, and Lydia Fletcher and husband to E. L. Bailey, dated June 1, 1931.

George Looney was at the time of this lease the owner of between four and five hundred acres of coal-bearing land in Buchanan county. Prior to the lease he and his wife, Pattie Looney, had made the following deeds to three of their seven children:

(1) To Joseph Looney, a son, dated January 21, 1922, conveying 66.7 acres, 'this being all of his part in the estate of George Looney;' (2) To Lydia Fletcher, a daughter, dated January 21, 1922, conveying 70.9 acres, 'to be Lydia Fletcher part of the estate of George Looney;' (3) To Lona O'Quinn, a daughter, dated November 28, 1925, conveying a tract the acreage of which is not given (but stated to be 71 acres in the lease), excepting rights of way to remove coal owned by Looney and wife and granting to Mrs. O'Quinn a right of way over the grantors' lands for similar purposes. The deed states that 'this conveyance is to be Lona O'Quinn's part of Geo. Looney and Patsey Looney estate.'

Thereafter the deed of lease of June 1, 1931, was made by George Looney, Lona O'Quinn, Lydia Fletcher and their consorts. It demised separately described tracts of land as follows:

(a) The 71 acres conveyed to Lona O'Quinn by the deed of November 28, 1925; (b) the 70.9 acres conveyed to Lydia Fletcher by the deed of January 21, 1922; and three tracts owned by George Looney designated in the lease as (c) containing 64.8 acres net; (d) containing 100 acres, and (e) containing 254 acres.

The purpose of the lease was stated to be to mine and remove all the coal on said lands and on any other lands then owned or thereafter acquired by the lessee; and the lessee was given broad surface privileges, including the right to use so much of the surface as necessary or convenient for mining and removing the coal; the right to build necessary or convenient tipples, houses and other equipment, tramways, railroads and other roads; the right to use timber under twelve inches in diameter and the right to use the openings and ways on said lands for mining and removing the coal from other lands.

The lessee agreed to pay to the lessors a royalty of ten cents a ton for the coal mined, with a minimum royalty of $1,000 a year, to continue as long as the lessee mined coal from the said property.

The lessors also granted to the lessee the right to haul through and over the leased premises coal mined from any other lands owned or subsequently acquired by the lessee, for a consideration of one cent a ton; and after the coal on the leased premises was mined out, a minimum rental or royalty of $720 a year was to be paid to the lessors for said haulage rights, whether that much coal was hauled or not, but with a provision for crediting the minimum with the tonnage royalty.

After this lease was made George Looney and wife conveyed to their remaining three children and to the children of a deceased son parcels of his land embraced in the lease, but without any reference to the lease, by deeds as follows: (1) To Eva M. Fletcher, daughter, dated July 17, 1937, for 46.51 acres; (2) To Edna, Hassie, Ruth, Inez and Glema Looney, children of Ishmael Looney, a deceased son, dated July 17, 1937, for 119.5 acres; (3) To Maude Looney McFall, daughter, a tract of 92.8 acres and a tract of 63.8 acres, but charged with the support and maintenance of Louisa Looney, an afflicted daughter of the grantors. George Looney died intestate in February, 1945.

The lease aforesaid was for a term of fifty years, with privileges of renewal for a like period; but with the further provision that it should terminate when all the workable and merchantable coal was taken from the premises and need for the rights of way and surface privileges had ceased. It is stated in appellants' brief, although not in the record, that the lessee mined out the top seam of coal on the leased premises and ceased mining thereon about 1940, and in 1941 began paying the one cent a ton haulage royalty. The mine superintendent of the lessee company, testifying in 1949, estimated that hauling over the leased premises would be finished in six years from that date, and said it was uncertain whether there were any other seams of coal on the leased premises that were mineable under the lease or any mineable coal on adjacent property to be thereafter transported over the leased premises.

As stated, this haulage royalty is the matter now in controversy. The appellants contend that it should be divided among the present owners of the land embraced in the lease in proportion to the quantity owned by each. The appellees (Maude McFall, Louisa Looney and Pattie Looney, the last named being the widow of George Looney, living with her two daughters on the McFall land, the home tract of George Looney), contend, and the court held, that it should be paid to the owners of the tracts over which the haulage rights are exercised.

The appellants argue that the lease contract made by George Looney, Lona O'Quinn and Lydia Fletcher was a joint or entire contract, and not severable. The trial court in a written opinion held that the 'circumstances and the construction placed upon the lease by the parties fully justify the conclusion that the parties intended the lease to be several and not joint,' as among the lessors, and by the decree appealed from ordered that these haulage royalties should be paid 'to the owners of the land over which said rights are exercised in proportion to the amount of the burden imposed thereon, * * *.' A commissioner was appointed to report to the court the lands over which said rights are being exercised and the share to which the owner of each tract is entitled in the money derived from said haulage rights since the death of George Looney.

Primarily the question of whether a contract is entire or severable is one of intention, and to ascertain the intention regard is to be had to the subject matter of the agreement, the situation of the parties and the object they had in view at the time and intended to accomplish. Eschner v. Eschner, 146 Va. 417, 422, 131 S.E. 800, 802; Buchanan v. Buchanan, 174 Va. 255, 278, 6 S.E.2d 612, 622.

Such lease contract as the one involved here may very well be joint and entire as between the lessors and the lessee, but severable as among the lessors themselves, depending upon their intention. If the intent is expressed in the writing, it of course controls; if not, it is to be discovered with the aids referred to in the Eschner Case as well as by the practical construction given the contract by the parties themselves.

When the terms of an agreement are doubtful or uncertain, the interpretation placed thereon by the parties themselves is entitled to great weight and will be followed if that may be done without violating applicable legal principles. Kiser v. Amal. Clothing Workers, 169 Va. 574, 591, 194 S.E. 727, 734; First Nat. Bank v. Roanoke Oil Co., 169 Va. 99, 115, 192 S.E. 764, 771; 4 Mich. Jur., Contracts, § 47, p. 388.

The problem has often arisen with respect to oil and gas leases, where the vagrant and fugitive character of those substances has...