The White Flame Coal Co. v. Burgess.

Decision Date16 March 1920
Citation86 W.Va. 16
CourtWest Virginia Supreme Court
PartiesThe White Flame Coal Company v. Emma Burgess et al.

1. Mines and Minerals Requisite to Obtain Title to Coal in Tract of Land Stated.

To obtain the title to all of the coal in a tract of land, under the law of title by adverse possession, by means of exclusive, open, notorious and hostile operation of a single mine on the land, it is essential that such possession be taken and held for the requisite period of time, under color of title to the coal. (p. 19).

2. Same Deed Accepting Mineral Rights Reserved by Any Grant-ors Heretofore Excepts Minerals Previously Excepted by Conveyances of Land by Original Grrantor and Those Succeeding His Grantee in Ownership of Surface.

An informal deed purporting to convey one or more tracts of land, and closing with a clause warranting the title, reserving a vendor's lien on the land to secure payment of purchase money and saying, between the warranty and the reservation provisions, "excepting, however, that they, (the grantors), do not undertake to convey any mineral rights that were reserved by any of the grantors heretofore," excepts from its operation minerals previously excepted by conveyances of the same land by the original grantor thereof and others succeeding his grantee in the ownership of the surface. (p. 20).

3. Deeds Exception May be Made in Part of a Deed.

An exception may be made in any part cf a deed, by the use of terms expressing intent to effect it. (p. 20).

4. Same Construction of Informal Deed is to be Based on All its Terms, Regardless of Technical Rules.

The interpretation of an informal deed is based upon all of its terms, provisions and parts unfettered by any technical rules or limitations, just as is that of an ordinary contract, a will or a statute. (p. 21).

5. Deeds Intention, Indicated by an Unnecessary Inference or Im-plication Will not Prevail Over an Intention Expressed in Words.

Ordinarily, in the interpretation of a deed or other instrument, intention indicated only by an unnecessary inference or implication, is not allowed to prevail over a different intention expressed in words. (p. 21).

6. Same Rule of Construction Most Strongly Against Creditors is Applicable Only in Case of Ambiguity.

The rule that a deed is to be construed most strongly against the grantor, is applicable only in the case of a doubt as to its meaning, insoluble by the application of any other rule of interpretation. (p. 21).

7. Taxation Entry of Lands for Taxation and Payment of Taxes Thereon is Presumed.

There is a presumption of entry of lands for taxation and payment of the taxes thereon, in favor of the owner and persons claiming under him, which stands until overthrown by proof to the contrary. (p. 22).

8. Same Burden of Proof of Forfeiture by Nonentry or Taxation Rests on One Defending on That Ground.

In the case of a defense to an action of ejectment, based upon the theory of forfeiture of the plaintiff's title, by reason of nonentry of the land upon the land books, for taxation, and outstanding title in the State in consequence of the forfeiture, the burden of proof of such forfeiture and of all facts necessary to establishment thereof including location of the land, when it is material, rests upon the defendant. (p. 22).

9. Same Error in Entry of Land or Coal for Taxation is Not a Valid Basis of a Claim of Forfeiture of the Title to the State if the Taxes Have Been Paid.

Neither an error in the quantity of a tract of land or coal, made in the entry thereof for taxation, be it one of excess or deficiency, nor the entry of two or more non-contiguous tracts a.s one, constitutes a valid basis of a claim of forfeiture of the title to the State, if the taxes imposed by such irregular assessment have been paid, as they are presumed to have been in the absence of proof to the contrary. (p. 22).

Error to Circuit Court, Kanawha County.

Ejectment by the White Flame Coal Company against Emma Burgess and others. Judgment for defendants upon a directed verdict, and plaintiff brings error.

Reversed, verdict set aside, remanded.

A. M. Belclier and J. B. Jones, for plaintiff in error.

W. E. R. Byrne, for defendants in error.

Poeeenbager, Judge:

The two principal inquiries arising on this writ of error to a judgment in an action of ejectment to recover the coal in a certain tract of land, rendered on a verdict found for the defendants by direction of the court, are whether they have acquired title to it by adverse possession, and whether the title of the plaintiff has been forfeited to the State, by reason of non-entry thereof for taxation.

While the declaration calls for the coal in two tracts of land, the areas of which are not stated, the controversy seems to be limited to the coal in a tract containing about 66 acres, and composed of parts of said two tracts. The plaintiff deraigns its title regularly from the Commonwealth of Virginia, commencing with a grant to Samuel Hollingsworth, of a tract of land containing 47, 000 acres and known and designated as the "Sheba" tract. It includes several prior surveys which were excepted and have been located by the plaintiff in its evidence. The "Sheba" tract passed mediately from Hollingsworth to Matthias Bruen and thence to his son, A. M. Bruen, who, from time to time, conveyed many portions of it to divers persons, but generally, if not always, excepted, in some form, the coal and iron in the lands, by his conveyances. By a deed dated, Feby. 1, 1854, he conveyed a tract containing 2963/4 acres to Hutchinson McDaniel, and retained the title to minerals in it, by an exception made in the following terms: "Excepting and reserving all the coal and iron Minerals found in and upon said land to the said Alexander M. Bruen, his heirs and assigns, with rights of way of ingress and regress necessary to the full enjoyment and use of this reservation, and granting to the said Hutchinson McDaniel License to use such Quantities of said minerals as may be necessary for his household and domestic purposes." The coal in question is under a part of that tract, the title to which, except as to the minerals therein, is admittedly vested in the defendant Emma Burgess. A portion of it, containing 68 acres, was owned, as to the surface, by August Copen and wife and the Kanawha Valley Bank, in 1891, and they conveyed it to Lucy E. Eock, by a deed containing this exception: "Subject to the reservations heretofore made of coal, iron and other minerals in the deeds from A. M. Bruen and others, under which said Bank remotely claims, and reference is here made to the said deeds for a more particular statement of said reservation, it being the intention of this deed to convey such land to the third party, (Lucy E. Bock), as the same was granted by said Bruen and others and subject to the reservation aforesaid." The record and briefs are so incomplete and disconnected in narration of the facts, that it is difficult, if not impossible, to get from them, a clear comprehension of the history of Mrs. Burgess' title. It seems to be admitted, however, that all of the deeds under which she claims down to one dated, March 23, 1907, by which Lucy E. Rock and her husband conveyed a 47 acre tract, part of a 68 acre tract, and a 19 acre tract, to J. L. Burgess, her husband, clearly excepted the coal and iron, either in express terms or by references to prior exceptions and adoption thereof. If the deed of March 23, 1907, contains an exception, it is cither in the warranty clause or immediately follows it. The last clause in it reads as follows: "And the said parties of the first part do hereby covenant that they will warrant generally the title to the property hereby conveyed, excepting, however, that they do not undertake to convey any mineral rights that were reserved by any of the grantors heretofore and they do hereby reserve a vendor's lien upon the same for the unpaid purchase money." By a deed dated, April 29, 1911, J. L. Burgess and wife conveyed said two tracts to Calvin Jones, and the last clause in that deed says: "And the said parties of the first part do hereby covenant with the said party of the second part that they will warrant generally the property hereby conveyed, excepting, however, the mineral titles that has heretofore been excepted by grantors or vendors of aforesaid land." Calvin Jones, by a similar deed dated, Sept. 26, 1913, conveyed both tracts to Emma Burgess, his daughter, the wife of J. L. Burgess. The last clause of that deed is the same in effect, if not in terms, as in the deed from Burgess to Jones.

Upon the interpretation of the three deeds last mentioned, depends the important inquiry, whether or not Emma Burgess, her husband and her father under whom she holds title, had any color of title to the coal in place, that she can invoke in support of their alleged continuous, visible, open, notorious and actual possession of the coal by means of mining thereof for commer- cial purposes, from the year 1907 until the year 1917, the date of the commencement of this action. If, properly interpreted, they, on their faces, granted the coal, and there was such possession as is claimed, the defendant Emma Burgess has perfect title to the whole thereof, by adverse possession of part of it, under color of title to the whole thereof. On the other hand, if any of them did not do so, she has no title to the coal. None of them actually passed such title, for none of the grantors had it, but the requisite...

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