Ramage v. South Penn Oil Co.

• Decision Date: 22 May 1923
• Docket Number: No. 4664.,4664.
• Citation: 94 W.Va. 81
• Court: West Virginia Supreme Court
• Parties: Blake Lemley Ramage v. South Penn Oil Company.

94 W.Va. 81

Blake Lemley Ramage

v.South Penn Oil Company.

No. 4664

Supreme Court of Appeals of West Virginia.

Submitted February 21, 1923.

Decided May 22, 1923.

1. Mines and Minerals "Surface" Subject of Conveyance Construed in Light of Circumstances and Situation of Parties.

The term "surface" when used as the subject of a conveyance is not a definite one capable of a definition of universal application, but is susceptible of limitation according to the intention of the parties using it; and in determining its meaning regard may be had, not only to the language of the deed in which it occurs, but also to the situation of the parties, the business in which they were engaged, and to the substance of the transaction. (p. 103).

2. Former Holding Overruled.

Point one of the syllabus in Williams v. South Penn Oil Company. 52 W. Va. 181, is overruled, (p. 104).

3. Deeds Elements Given Consideration to Determine Meaning

of Words not of Definite Import, Stated.

In determining the meaning of words not of a certain and definite import used in a deed, consideration will be given to the situation of the parties, the subject matter of the deed, the purpose sought to be accomplished thereby, and the acts of the parties thereunder. (p. 103).

4. Contracts Interpretation by Parties to Ambiguous Contract

Entitled to Great Weight and May be Controlling.

Where a contract is ambiguous, the interpretation placed upon it by the parties may be entitled to great weight, and in some instances it may be controlling. (p. 103).

5. Mines and Minerals Deed for "Surface" of Lands Construed

to Carry All of Land Except Oil and Gas Rights Specifically Reserved.

Thyng and Loan, non-residents, in 1889, engaged in an oil mining partnership in Monongalia County, near the beginning of the oil industry in that section, leasing various oil and gas lands and drilling for oil and gas: They purchased one tract of land in fee, but immediately thereafter conveyed the "surface", except the oil and gas rights in the land, to the Lemleys, who were farmers residing in the neighborhood on lands of their own. At that time there was no coal development, nor had there been any sales of coal lands in that vicinity. Within a year or so after the grantors had made the deed, they drilled a well or wells for oil and gas through the Pittsburgh vein of coal, on adjoining lands, so that, they might reasonably infer that the same vein extended under the "surface" conveyed to the Lemleys, but they made no claim to the coal under the Lemley "surface", and for twenty-five years failed to have it entered on the land books for taxation. A few years after the deed was made, the partner who acquired the firm's interest in the Lemley tract, conveyed it away, designating the interest as oil and gas. Considering the language of the deed, the nature of the transaction, the situation of the parties, the business in which they were engaged, and their conduct indicating construction of the deed, the grant of the "surface" carried with it all of the land, except the oil and gas rights specifically reserved. (p. 104).

Appeal from Circuit Court, Monongalia County.

Suit by Blake Lemley Ramage against the South Penn Oil Company and others. Prom a decree for plaintiff, the named defendant appeals.

Affirmed.

A. B. Fleming, Kemble White and Chas. Powell, C. S. Andrews and M. J. Malamphy, Jr., and Glasscock & Glasscock for appellant.

Homer W. Williams and M. M. Neely for appellee.

Meredith, Judge:

Plaintiff brought this suit to have the claims of defendant South Penn Oil Company cancelled as clouds on her title to the coal and mining rights under 110 acres of land in Monongalia County. Each party claims title to the coal and both trace their respective claims of title to a common source, the heirs of James T. Morris, deceased. The circuit court decreed in favor of plaintiff and defendant appeals.

In 1889 Culver G. Thyng of New York and Thomas Loan of Pennsylvania became interested in the oil business in Monongalia County. It was about the beginning of the development of that industry in that section. They leased various lands for oil and gas in the vicinity of the 110 acres and on June 14, 1889, acquired from the Morris heirs by deed the fee to the 110 acres, for which they paid $9000 in cash. Their business was carried on under the firm name of C. G. Thyng & Co., and the deed for the 110 acres was made to "Culvert G. Thyng and Thomas Loan, doing business under the firm and style of C. G. Thyng & Co." The parties under the firm name, on June 19, 1889, five days after acquiring title, in consideration of $4000 paid, made the following grant to Lewis Lemley and David Lemley:

" all that surface of a certain tract or parcel of land containing 110 acres lying on the head waters of Doll's Run, Monongalia County, West Virginia, known as the tract of land that F. M. Meredeth Guardian &c. and Mary F. Morris conveyed to the said grantors on the 14th day of June, 1889, subject to ingress and egress and water privilege for drilling gas and oil wells on the same and the right to lay pipes to convey oil and gas therefrom or over the same, and to work upon said lands in drilling said wells, or removing any or all machinery therefrom and said tract of land is bounded as follows, to-wit."

(Here follows a description of the property jby metes and bounds.) "And it is further understood and agreed that said Grantees take the surface of said tract of land subject to the lease thereon to David Morris to the 1st day of March, 1890, for Two Hundred Dollars and said rent from the 14th day of June, 1889, is payable to said Grantees, but from the 1st day of March, 1889, to said 14th day of June, 1889, is payable to F. M. Meredith Guardian &c, and that the said Grantors in retaining the oil and gas under said tract, shall have the right to go on said land, erect and place the proper machinery thereon for drilling for oil and gas and have sufficient water supply for running said machinery and the right to lay pipes for removing gas or oil therefrom or over said lands doing no more damage to the surface of said farm than is necessary to develope and remove said oil or gas from under said farm or tract of land."

The controversy in this case revolves around the effect of this deed, which for brevity we will hereafter call the "Lemley deed." Plaintiff claims the coal under the deed, she having obtained a conveyance therefor from the grantees; the defendant claims against the deed and asserts title to the coal through subsequent deeds made by the firm, or the members thereof, their heirs or assigns.

Plaintiff introduces certain parol evidence in order to aid the court in interpreting the Lemley deed, to which we will later refer. She also exhibits certain deeds made subsequently by the grantors, which she claims show an interpretation placed on the Lemley deed by C. G. Thyng, and Thomas Loan and South Penn Oil Company, at variance with the present claims of defendant. These deeds and other deeds under which the defendant claims title to the coal, oil and gas, in brief, are the following:

1. By deed dated June 20, 1889, C. G. Thyng & Co. for $1762.50 paid, granted to South Penn Oil Company the three-eighths of "the petroleum oil and gas in and under" the 110 acre tract, "with the right of ingress and egress and water privileges for drilling gas or oil wells on the same and the right to lay pipe-lines to convey oil and gas therefrom or over the same, and to work upon said land in drilling said wells or removing any or all machinery therefrom doing no more damage to the surface of said farm than is necessary to develop and remove said oil or gas from under said farm or tract of land."

2. By deed dated April 16, 1891, Culver G. Thyng conveyed by mortgage to D. C. Conklin all his interest in the following described leaseholds, created by the following oil and gas leases:

(a). A lease made by Francis B. Michael and wife dated May 16, 1889, covering 80 acres, more or less.

(b). A lease made by Tossy Michael and others, dated May 20, 1889, covering 53 acres, more or less.

(c). A lease made by David E. Lemley and Lewis

Lemley, dated June 19, 1889, covering 174 acres, excepting 20 acres therefrom by actual measurement, on the northeast corner of the tract.

(d). "Also all his right, title, and interest of, in and to the following described lands and premises, to-wit:" (here follows a description of the 110 acres by metes and bounds).

This mortgage was executed to secure Conklin in the payment of $15,000 and passed by assignments to defendant, April 21, 1894.

3. By deed dated August 18, 1891, Thomas Loan and wife conveyed to Cuthbert G. Thyng, in consideration of $2000 and other considerations paid, the following described real estate and personal property in Monongalia County:

(a). All their interest, being the one-fourth undivided interest in the Morris 110 acres.

(b). The personal property consisting of "drilling tools, 1 cable, 1 sound line, hammers, boiler, bellows, etc."

(c). All their interest, being the one-fourth working interest, in the Benj. Core leasehold estate, containing 150 acres.

4. By deed dated September 11, 1893, and recorded in Deed Book 37, page 49, Culver G. Thyng assigned and conveyed to Jason D. Case:

(a). All his interest in all that certain tract of land sold to C. G. Thyng & Co. by F. M. Meredith, Gdn. etc., being the 110 acre tract, including the interest therein conveyed by Thomas Loan and all personal property in Monongalia County, consisting of drilling tools, boilers, engines, etc.

(b). All his right, being the working interest, in the Benj. Core leasehold estate.

(c). Also all that certain parcel of land containing 154 acres, described as the Lemley land.

(d). Another tract described by adjoining boundaries, containing 180 acres.

(e). "And all the land in the county of Monongalia

in which the party of the first part has any interest. The interest hereby intended to be conveyed is the oil and gas...