Tate v. United Fuel Gas Co., 790

Decision Date15 July 1952
Docket NumberNo. 790,790
Citation71 S.E.2d 65,137 W.Va. 272
PartiesTATE, v. UNITED FUEL GAS CO. et al. C. C.
CourtWest Virginia Supreme Court

Syllabus by the Court.

1. Equity has jurisdiction to remove a cloud on title to land at the suit of a person having a clear, legal and equitable title thereto. Possession is not required in order to maintain such suit.

2. A court of equity has jurisdiction to enjoin a continuing trespass to land.

3. "When a court of equity takes jurisdiction of a cause for one purpose, it will ordinarily dispose of the questions involved to avoid a multiplicity of suits.' Point 1, Syllabus, Lay v. Phillips, 116 W.Va. 60 ' Pt. 3, Syl., Webber v. Offhaus, W.Va.

4. An unambiguous exception contained in a deed of conveyance will be given the commonly accepted meaning imported by the language therein contained.

5. A deed of conveyance which contains an unambiguous exception of 'oil, gas and brine and all minerals', as well as clay, sand, stone or surface minerals necessary for mining and drilling operations, but further provides that other clay, sand, stone, or surface minerals are not included in the exception, operates to pass title to a subterranean stratum of stone from which the minerals have been extracted.

D. W. Taylor, Charleston, John T. Copenhaver, Jr., Charleston, for plaintiff.

Bernard J. Pettigrew, Thomas E. Pettigrew, Charleston, for defendants.

LOVINS, Judge.

In this suit in equity, instituted in the Court of Common Pleas of Kanawha County, Virgil C. Tate, plaintiff, seeks to enjoin the United Fuel Gas Company, a corporation, one of the defendants, from using plaintiff's land and the strata and formations thereon, for the purpose of storing gas; a decree for damages; cancellation of a gas storage agreement under which gas storage operations have been conducted, as a cloud on plaintiff's title; and a decree against the United Fuel Gas Company for the value of previous use of the tract for unauthorized purposes.

William T. Lively, Siegel Workman, L. S. Echols, Jr., and Minerva E. O'Dell, with their spouses, were parties to the above mentioned agreement, and are joined in this suit as defendants.

The Court of Common Pleas overruled demurrers of defendants to the bill of complaint, and certified questions raised by the bill and demurrers to the Circuit Court of Kanawha County. The Circuit Court reversed the decree of the Court of Common Pleas, sustained the demurrers to the bill of complaint, and certified the same questions to this court.

Defendant Siegel Workman was the owner in fee simple of a tract of land containing 244 acres, situated on Pocatalico River in Union District of Kanawha County, West Virginia. By deed dated April 15, 1937, he conveyed that parcel to Karney E. Tinney. The deed contained the following exception: 'The oil, gas and brine and all minerals, except coal, underlying the surface of the land hereby conveyed are expressly excepted and reserved from the operation of this deed, together with the exclusive right to drill and mine thereon for the production and removal of the oil and gas and other minerals hereby excepted and reserved and rights of way over and across said premises to the place or places of drilling and mining and the right to use necessary water from and lay pipe lines across said premises or construct drips, build tanks and stations and houses for gates, meters, regulators and all other appliances necessary for such purpose; but such operations shall be carried on in such manner as not to unreasonably destroy or injure the soil or surface of said land or the improvements thereon or remove the subjacent support from said land, or unreasonably or unnecessarily interfere with the use thereof for agricultural purposes or the removal of coal therefrom, it being understood that the term 'mineral' as used herein does not include clay, sand, stone or surface minerals except such as may be necessary for the operation for the oil and gas and other minerals reserved and excepted herein.' [Emphasis supplied.]

On July 25, 1945, Karney E. Tinney conveyed the land to plaintiff. The conveyance was made expressly subject to the same exception set forth above.

Siegel Workman, by deed dated April 29, 1939, conveyed to L. S. Echols, W. H. O'Dell and William T. Lively, an undivided one-fourth interest each in the oil and gas and other minerals, 'except coal, clay, sand, stone or surface minerals' underlying the 244 acre tract. W. H. O'Dell later conveyed his one-fourth interest to his wife, Minerva E. O'Dell. In 1946, L. S. Echols died, testate, devising his interest in the tract to L. S. Echols, Jr.

On April 1, 1950, Minerva O'Dell, William T. Lively, Siegel Workman and L. S. Echols, Jr., with their spouses, 'in so far as * * * [they had] the legal authority so to grant', leased the tract to the United Fuel Gas Company, 'for the purpose of searching for, exploring, drilling and operating for and marketing oil and gas, and of laying pipe lines, and building tanks, stations, * * * with all other rights * * * incident or convenient for the operation of this land alone and conjointly with neighboring lands.' The lease recited that the present agreement superseded an oil and gas lease to another lessee, executed in August, 1942. Plaintiff avers that under the prior lease a well which produced gas was drilled and completed to the Big Lime formation but that it had ceased to produce gas in paying quantities.

A gas storage agreement was also executed by the same parties on April 1, 1950, giving the lessee the exclusive right to use and occupy the Big Lime stratum underlying the tract for the purpose of 'injecting and storing gas therein and removing gas therefrom, together with all rights reasonably necessary or convenient for such purposes.' The lessee was granted the further right 'to enter upon said premises and inject gas into the Big Lime stratum, store the same therein and remove same therefrom, and, in so far as Lessor has the right so to grant, the privilege of laying pipe lines over and drilling storage wells on said premises, converting any existing well to a gas storage well, together with all other rights and privileges necessary in the operation of said property for storage purposes, alone or in conjunction with neighboring lands.'

Subsequent to the execution of the foregoing lease and agreement, the United Fuel Gas Company drilled and completed a well to the Big Lime stratum for the purpose of storing gas therein. No oil or gas has been produced from that well. Gas, which has been produced elsewhere, has been delivered by pipe line to the Big Lime formation for storage.

Plaintiff asserts that he is the rightful owner of all the clay, sand and stone within and underlying the tract here involved, and that in its drilling and storage operation, the United Fuel Gas Company has damaged the surface and improvements on the tract to the extent of $2,500, by the construction and use of roads, the laying of pipe, and the destruction of plaintiff's crops and fences.

Two separate demurrers were filed to the bill of complaint--one by the United Fuel Gas Company and the other by the remaining defendants. In both demurrers identical in allegations, defendants say that plaintiff has an adequate remedy at law, and that plaintiff has no such interest in the minerals as would enable him to maintain this suit. Answers have also been filed alleging that there is recoverable gas in the Big Lime stratum, but, since the issues here presented arise upon the demurrers to the bill of complaint, the contents of the answers are not considered.

In overruling the demurrers to the bill of complant the Court of Common Pleas certified the following questions to the Circuit Court:

'(1) Does the plaintiff have a full, adequate and complete remedy at law?

'(2) Does plaintiff's bill present a cause meriting and calling for equitable relief?

'(3) Are the clay, sand and stone within and underlying the surface of the tract of land in question herein, owned by the plaintiff or by the defendants or some of them?

'(4) Does the * * * [exception hereinabove quoted] contained in the deed from Siegel Workman to Karney E. Tinney, plaintiff's predecessor in title, create title to the Big Lime stratum in plaintiff or defendant?'

In reversing the ruling of the Court of Common Pleas and sustaining the demurrers, the Circuit Court certified questions to this court, which are identical with those certified by the Court of Common Pleas.

A disposition of the questions certified rests almost entirely upon the proposition that the plaintiff is the owner of the Big Lime stratum. If he is not the owner of that portion of the tract of land, there are no grounds for equitable relief.

If the plaintiff only asserted in his bill of complaint a money demand for damages to the surface of his land and compensation for the unauthorized use thereof, this suit should not be considered and determined in an equitable forum, since the plaintiff would have an adequate and complete remedy at law. But he alleges facts which, if established by proof, would entitle him to a decree removing a cloud on his title to the subterranean formation known as the Big Lime stratum. He also alleges certain acts and conduct by the corporate defendant, which amount to a continuing trespass, and prays that such acts and conduct be enjoined.

It is a well known principle of equity jurisprudence that a court of equity has jurisdiction to remove a cloud on title. Evans v. Hale, 131 W.Va. 808, 50 S.E.2d 682; Baird-Gatzmer Corporation v. Mining Co., 131 W.Va. 793, 50 S.E.2d 673; Putnam Company v. Fisher, 128 W.Va. 383, 36 S.E.2d 681; Gilbert v. McCreary, 87 W.Va. 56, 104 S.E. 273, 12 A.L.R. 1172; Waldron v. Harvey, 54 W.Va. 608, 46 S.E. 603. See Hogg's Equity Procedure, Miller, 3rd Ed., § 125. But before a court of equity will entertain a suit to...

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