Sally-Mike Properties v. Yokum, SALLY-MIKE

Decision Date03 July 1985
Docket NumberNo. 16407,SALLY-MIKE,16407
PartiesPROPERTIES, a Partnership v. Woodrow YOKUM, et al.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. "A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent." Syl. pt. 1, Cotiga Development Company v. United Fuel Gas Company, 147 W.Va. 484, 128 S.E.2d 626 (1963).

2. A clause in a deed providing "one fourth acre ... is reserved from the operation of this conveyance," constitutes an exception saving to the grantors, their heirs and assigns, fee title to the land therein described.

3. No part of a deed should be declared void for uncertainty if it is possible, by any reasonable rule of construction, to ascertain from the description, aided by extrinsic evidence, the property intended to be affected.

Richard W. Cardot, Elkins, for appellants.

Brown, Harner & Busch and Richard H. Talbott, Jr., Elkins, for appellee.

McGRAW, Justice:

This is an appeal from the Circuit Court of Randolph County involving a petition filed by the appellee, Sally-Mike Properties, a partnership, seeking authority for removal, transfer and reinterment of certain grave markers and human remains contained in a private burial ground located upon property claimed by the appellee. The appellant, Woodrow Yokum, as one of the descendants of persons interred in the private cemetery, responded to the petition below, objecting to the proposed removal and transfer, and further asserting that the appellee did not own the property comprising the burial ground. The circuit court, in an order dated May 2, 1984, concluded that the appellee did own the subject property. Thereafter, the circuit court considered the issue of the propriety of removal and reinterment of the remains located in the burial ground. By a second order, entered June 4, 1984, the circuit court granted the appellee's request for authority to remove and transfer the remains. Upon the motion of the appellant, the circuit court granted a stay of execution of its final order pending application for appeal. Subsequently, this Court granted the appellant's petition for appeal, and further ordered a stay of execution of the orders below until the final decision of this Court. Based upon the findings and conclusions which follow, we reverse the decision of the circuit court.

The appellee, Sally-Mike Properties, purchased approximately five acres of real estate south of the city of Elkins, Randolph County, by deed dated December 3, 1982. The burial ground which is the subject of dispute in this appeal is surrounded on three sides by the appellee's property, with the fourth side adjoining a four-lane highway (U.S. Routes 219 & 250). As a result of excavation activities during the construction of the four-lane highway, and excavation done by former owners of the property purchased by the appellee, the burial ground is presently situated upon a well-defined knoll with an elevation ranging from twelve to twenty feet above the surrounding property.

The appellee purchased the property surrounding the burial ground with the intention of developing a commercial site. After unsuccessful attempts to market the property as two separate tracts, one on each side of the burial ground, the appellee received an offer for the development of the tract as one unit, conditioned upon removal of the burial ground and the knoll upon which it sets. Subsequently, the appellee filed its petition with the circuit court seeking authorization for removal of the remains interred within the burial ground and transfer to another cemetery within the county.

The petition was filed pursuant to the act codified at West Virginia Code § 37-13-1 et seq. (1985 Replacement Vol.). This act sets out a petition, notice and hearing procedure whereby the circuit court of the county where the subject property is located may "permit and order the removal, transfer and reinternment, or other disposition, of remains in any graves located upon privately owned land...." West Virginia Code § 37-13-1 (1985 Replacement Vol.). This statutory remedy, however, may be sought only by the actual owner of the property upon which the graves are situated. West Virginia Code §§ 37-13-1 & -2 (1985 Replacement Vol.). Consequently, the threshold question below, and the primary issue in this appeal, is whether the appellee owns the land where the burial ground is located.

The burial ground in question was established sometime prior to 1891, on what is referred to in the record as the "old Sarah Yokum farm." By deed dated January 17, 1891, James Shoemaker, Sarah A. Yokum and J.E. McCarty conveyed a tract containing approximately 52 acres to Stephen B. Elkins. Although now bordering on a four-lane highway, at the time of this conveyance the burial ground was situated within the interior of the tract conveyed, a short distance from the modern highway's predecessor, the old Beverly and Fairmont Turnpike. The 1891 deed, after the description of the tract being conveyed, contains the following language:

But of the land included in said boundary lines, one fourth acre thereof lying on top of the cleared point South of the old Yokum house and West of the said pike, to be laid off so as to include all of the burial ground now on said point, is reserved from the operation of this conveyance.

Twelve years later, by deed dated March 25, 1903, Stephen B. Elkins conveyed a 23-acre parcel of the "old Yokum farm" to the newly formed Board of Trustees of the Davis and Elkins College. From 1904 to 1924 the land surrounding the burial ground was part of the first campus of Davis and Elkins College. In the mid-1940's, two decades after the college's relocation, the former campus was sold by the trustees. Shortly thereafter, a major portion of the former campus was surveyed and subdivided into residential lots. A plat map made in conjunction with this survey shows the burial ground with specific boundary dimensions which approach one-third of an acre in area.

According to the petition, and other evidence adduced below, the number of persons from the Yokum family and others believed to be interred in the burial ground is somewhere between eight and seventeen. Additionally, there was testimony below that seven or eight confederate soldiers, names unknown, were buried there during the war. The last person known to be buried at this site was Sarah Yokum, a grantor in the 1891 deed, who died on November 4, 1911.

The appellee's claim of ownership of the burial ground, and thereby the right to petition for removal and transfer of the remains, rested upon two arguments relating to the above-quoted language concerning the burial ground contained in the 1891 deed. First, the appellee asserted below that the grantors in the 1891 deed intended merely to create a right to use and maintain the burial ground on the property, and did not intend to retain fee title to the one-fourth acre. Alternatively, the appellee argued that, even if the 1891 grantors did intend to retain title to the burial ground, the description contained to the deed is so vague and uncertain that the attempted exception is void. The circuit court appears to have found both of the appellee's positions equally persuasive and, accordingly, concluded as a matter of law that, based upon either, the appellee owned the burial ground property. These alternative holdings by the circuit court are the appellant's main assignments of error, and in light of our conclusions which follow, are the only questions we need address.


We first address the question of the import of the language used in the 1891 deed in reference to the burial ground. The function of the Court when presented with such a question is "to ascertain the true intent of the parties as expressed by them in the deed, lease or other written instrument under consideration." Davis v. Hardman, 148 W.Va. 82, 88-89, 133 S.E.2d 77, 81 (1963). In this regard, the manifest intent of the parties supersedes the commonly ignored technical differences between a "reservation" and an "exception." See Freeport Coal Company v. Valley Point Mining Company, 141 W.Va. 397, 401, 90 S.E.2d 296, 299 (1955). It has long been recognized that, "It makes no difference whether the word used is 'except' or 'reverse,' the intent being the matter to be considered." Preston v. White, 57 W.Va. 278, 282-83, 50 S.E. 236, 237-38 (1905); see also Malamphy v. Potomac Edison Company, 140 W.Va. 269, 273, 83 S.E.2d 755, 758 (1954); Tate v. United Fuel Gas Company, 137 W.Va. 272, 280, 71 S.E.2d 65, 70 (1952); Erwin v. Bethlehem Steel Corporation, 134 W.Va. 900, 914-16, 62 S.E.2d 337, 345-46 (1950); Syl. pt. 3, Collins v. Stalnaker, 131 W.Va. 543, 48 S.E.2d 430 (1948); Syl. pt. 3, Beckley Nat'l Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767 (1935); Syl. pt. 7, Freudenberger Oil Company v. Simmons, 75 W.Va. 337, 83 S.E. 995 (1914).

The appellee maintains that the parties to the 1891 deed intended merely to reserve to the grantors the right to use and maintain the burial plot, and did not intend to retain fee title to the property upon which it is situated. In support of this interpretation, the appellee cites three circumstantial factors. First, at the time of the 1891 deed the burial ground was located within the interior of the tract conveyed. Second, the appellee notes that the grantors did not expressly provide for a right of access to the burial ground. 1 Third, the appellee points to the fact that a portion of the tract, including the land surrounding the burial ground, ultimately became a part of a college campus. 2

Intention disclosed, if at all, by inference or implication, is not allowed to prevail over a different intention expressed in terms. See Syl. pt. 5, White Flame Coal Company v. Burgess, 86 W.Va. 16, 102 S.E....

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